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HomeMy WebLinkAboutContract 51471City Secretary Contract No. T5 1 0 1 PROFESSIONAL CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF FORT WORTH, TEXAS AND SHANNON R. CHERRY 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 SHANNON R. CHERRY ("Contractor"), an individual. City and Contractor are each individually referred to as a "party" and collectively referred to as the "parties." The term "Contractor" shall include Contractor, its officers, agents, employees, representatives, contractors, or subcontractors. The term "City" shall include its officers, employees, agents, and representatives. WHEREAS, the City's Park & Recreation Department desires to update its policies and procedures manual; and WHEREAS, the Park & Recreation Department desires to hire a professional consultant to assist with developing, revising and drafting the updates to the policies and procedures manual, and WHEREAS, the Park & Recreation Department has selected Shannon R. Cherry as the professional consultant to provide said services; and NOW, THEREFORE, in considered of the covenants and agreements contained herein, City and Contractor agree as follows: AGREEMENT DOCUMENTS: The Agreement documents shall include the following: 1. This Professional Services Agreement and 2. Exhibit A — Scope of Services. All Exhibits which are attached hereto and incorporated herein, are made a part of this Agreement for all purposes. In the event of any conflict between the terms and conditions of the Exhibits and the terms and conditions set forth in the body of this Agreement, the terms and conditions of this Agreement shall control. 1. SCOPE OF SERVICES. Contractor hereby agrees, with good faith and due diligence, to provide the City with professional consulting services to assist the Park & Recreation Department with developing, revising and drafting updates to the Park & Recreation Department's policies and procedures manual. Specifically, Contractor will perform all duties outlined and described in the Scope of Services, which is attached hereto as Exhibit "A" and incorporated herein for all purposes, and further referred to herein as the "Services." Contractor shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Contractor shall perform the Services in accordance with all applicable federal, state, and local laws, rules, and regulations. annon R. Chevy Professional Consulting Services Agreement with Shannon Chevy OFFI�IAL RECORD ,VpgeIof10 018 CITY SECRETARY' ET. WORTH, TX 9 2. TERM. This Agreement shall begin on September 4, 2018, and shall expire on September 3, 2019, unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. This Agreement may be renewed for two one-year renewal periods upon written agreement of the parties. 3. COMPENSATION. City shall pay Contractor an amount not to exceed $50,000.00 in accordance with the provisions of this Agreement and Exhibit "A". It is projected that $20,000.00 will be expended. Contractor 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 Contractor not specified by this Agreement unless the City first approves such expenses in writing. Contractor shall submit written invoices to the City on a monthly basis. City agrees to pay all invoices of Contractor in accordance with the applicable provisions of Chapter 2251 of the Texas Government Code. 4. TERMINATION. 4.1 Convenience. Either the City or Contractor may terminate this Agreement at any time and for any reason by providing the other party with thirty days written notice of termination. 4.2 Breach. If either party commits a material breach of this Agreement, the non -breaching party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten calendar days after receipt of notice from the non -breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non -breaching party may, in its sole discretion, and without prejudice to any other right under this Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. 4.3 Fiscal Fundina Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, the City will notify Contractor 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 have been appropriated. 4.4 Duties and Obliaations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Contractor for Services actually rendered up to the effective date of termination and Contractor 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. Upon termination of this Agreement for any reason, Contractor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Contractor has received access to City information or data as required to perform the Services hereunder, Contractor shall return all City data to the City and certify that all City data has been removed from Contractor's computers and other electronic devices. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 2 of 10 2018. 5.1 Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's Services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Contractor hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. The City acknowledges that Contractor may use products, materials, or methodologies proprietary to Contractor. The City agrees that Contractor's provision of Services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products, materials, or methodologies unless the parties have executed a separate written agreement with respect thereto. Contractor, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3 Unauthorized Access. Contractor 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. Contractor shall notify the City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, Contractor shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Contractor agrees that the City shall, until the expiration of three 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, including, but not limited to, all electronic records, of the Contractor involving transactions relating to this Agreement at no additional cost to the City. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor 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 Contractor not less than ten days written notice of any intended audits. Contractor further agrees to include in all its subcontractor agreements that are authorized by this Agreement a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three 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 the 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. The City shall give subcontractor not less than ten days written notice of any intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Contractor shall operate as an independent contractor as to all rights and privileges granted herein and the Services performed under this Agreement, and not as an agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Contractor 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. Contractor acknowledges that the doctrine of Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 3 of 10 2018 k� respondent superior shall not apply as between the City, its officers, agents, servants and employees, and Contractor, its officers, agents, employees, servants, contractors and subcontractors. Contractor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Contractor. It is further understood that the City shall in no way be considered a Co - employer or a Joint employer of Contractor or any officers, agents, servants, employees or subcontractors of Contractor. Neither Contractor, nor any officers, agents, servants, employees or subcontractors of Contractor shall be entitled to any employment benefits from the City. Contractor 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. 8. LIABILITY AND INDEMNIFICATION. CONTRACTOR 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 CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. CONTRACTOR COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONTRACTOR'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Contractor 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 Contractor under which the assignee agrees to be bound by the duties and obligations of Contractor under this Agreement. The Contractor and Assignee shall be jointly liable for all obligations of Contractor under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Contractor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Contractor under this Agreement as such duties and obligations may apply. Contractor shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. 10.1 Consultant shall not be required to carry insurance unless the City's Risk manager or that person's designee determines that insurance is necessary to fulfill the terms of this Contract. In the event that insurance is required by the City, the City shall provide the Consultant with written notice of its decision and the types and amounts of insurance necessary for coverage under this Contract. Any such insurance must include the City as an additional insured. Consultant shall furnish the City with certificates of insurance along with copies of policy declaration pages and all policy endorsements as Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 4 of 10 2018 evidence thereof and must abide by any requirements of the City concerning the procurement of insurance. 10.2 General Insurance Requirements: 1. All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted Services. 2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. 3. A minimum of thirty days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with a copy to the Fort Worth City Attorney at the same address. 4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. 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 the City's Risk Manager. If the rating is below that required, written approval of the City's Risk Manager is required. 5. Any failure on the part of City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 6. Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to the City prior to Contractor proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Contractor agrees that in the performance of the Services and obligations under this Agreement, it shall comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Contractor of any violation of such laws, ordinances, rules or regulations, Contractor shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Contractor, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Contractor'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 CONTRACTOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS, SUBCONTRACTORSS OR SUCCESSORS IN INTEREST, CONTRACTOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD 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) Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 5 of 10 2018 received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To the CITY: City of Fort Worth Attn: Sandra Youngblood 4200 South Freeway, Suite 2200 Fort Worth, TX 76115 Facsimile: (817) 392-5736 With copies to the Fort Worth City Attorney and the City Manager at: 200 Texas Street Fort Worth, Texas 76102 To CONTRACTOR: Shannon R. Cherry_ 7521 Oak Park Drive North Richland Hills, TX 76182 Telephone: (817) 888-1037 14. SOLICITATION OF EMPLOYEES. Neither the City nor Contractor 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 an 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. 15. 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 or immunities. 16. NO WAIVER. Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 6 of 10 2018 The failure of the City or Contractor 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 Contractor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. 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. 18. 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. 19. FORCE MAJEURE. The City and Contractor 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. 20. 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. 21. 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. 22. 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. 23. ENTIRETY OF AGREEMENT. This Agreement, including and exhibit attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Contractor, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 7 of 10 2018 010 written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. SIGNATURE AUTHORITY. The person signing this Agreement, and any amendment hereto, 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. Each party is fully entitled to rely on these warranties and representation in entering into this Agreement or any amendment hereto. 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. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each parry's original signature is not delivered. 26. THIRD PARTY BENEFICIARIES. The provisions and conditions of this Agreement are solely for the benefit of the City and Contractor, and their lawful successors or assigns, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 27. SURVIVAL. Section 4.4 (Duties and Obligations of Parties), Section 5 (Confidentiality), Section 6 (Right to Audit), and Section 8 (Liability and Indemnification) shall survive termination of this Agreement. 28. IMMIGRATION NATIONALITY ACT. Contractor 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 the City, Contractor shall provide the City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Contractor 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 Contractor employee who is not legally eligible to perform such services. CONTRACTOR SHALL INDEMNIFY THE CITY AND HOLD THE CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONTRACTOR, CONTRACTOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. The City, upon written notice to Contractor, shall have the right to immediately terminate this Agreement for violations of this provision by Contractor. 29. PROHIBITION ON BOYCOTTING ISRAEL. Contractor 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 Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 8 of 10 2018 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 Agreement, Contractor certifies that Contractor's signature provides written verification to the City that Contractor. (I) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement 30. OWNERSHIP OF WORK PRODUCT. The 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, the 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. 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, Contractor hereby expressly assigns to the 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 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. (SIGNATURES ON FOLLOWING PAGE) Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 9 of 10 2018 IN WITNES W REOF, the parties hereto have executed this Agreement in multiples this 5� day of OK 2018. CITY OF FORT WORTH: Fernando Costa Assistant City Manager Date: APPROVAL RECOMMEN D: Ri hard Zavala Dctor,Pr. Park & Recreation Department APPROVED AS TO FORM AND LEGALITY: Richard A. McCracken Assistant City Attorney CONTRACT AUTHORIZATION: M&C: N/A Date: Form 1295: N/A ATTEST: .,GIT ary J. K er City Secr ary �} Shannon R. Cherry Professional Consulting Services Agreement with Shannon Cherry Page 10 of 10 CONTRACTOR: Shannon R. Cherry r Date: r ATTEST: i Name: Title: CITY'S CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reportin uirements. Title: OFFIqW RECORD YCITY SECRETAR,- . � FT. WORTH, TX EXHIBIT A SCOPE OF SERVICES Contractor shall assist the Park & Recreation Department with development and drafting of a revised policy and procedure manual. Contractor shall work closely with the Park & Recreation Department staff to ensure consistent project updates and clear communication. Contractor main point of contact with the City for weekly meetings, telephone conference calls and emails shall be Tiwana Askey. It is anticipated that to complete the project on time, Contractor shall spend approximately twenty hours per week performing the Services. Contractor shall use Contractor's own equipment, supplies and office to perform the Services. Contractor shall travel to City offices as needed or requested for meetings with City staff. Contractor shall deliver completed work to City staff with each monthly invoice. Contractor's fee for labor shall be $50.00 per hour. City shall reimburse Contractor for clerical expenses. Any additional expenses of Contractor must be approved by the City prior to Contractor incurring said expenses. Contractor shall contact Sandra Youngblood for approval of any additional expenses. The total fee, including expenses, paid to Contractor for the Services shall not exceed $50,000.00. Shannon R. Cherry Professional Consulting Services Agreement Page 10 of 10 Rev. 2018