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HomeMy WebLinkAboutContract 34780CIiY SECRETi�RY C�NTRACl' NO o AGREEMENT FOR SERVICES In consideration of the mutual covenants, promises and agreements contained herein, THIS AGREEMENT ("Agreement") is made and entered into between CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas, ("City") acting by and through Joe Paniagua, its duly authorized Assistant City Manager, and THE FOWLER GROUP, a Texas corporation ("Fowler"), acting by and through ��'`1V�DSarJ , its duly authorized �s�� P�����' (title). RECITALS WHEREAS, City became an Urban Area Security Initiative (UASI) city in 2005 and holds that designation along with the City of Arlington and the City of Dallas; WHEREAS, these three cities along with all contiguous jurisdictions make up the Metroplex Urban Area Security Initiative (MUASI); WHEREAS, the MIJASI steering committee earmarked $250,000 of 2005 UASI homeland security grant funding ("Project Funds") for the development of a regional disaster education project ("Project") and City was selected to lead this Project; WHEREAS, upon completion, this Project will generate public education materials specific to the hazards and needs of our area and citizens, and these materials will then be used to educate our citizens for disaster preparedness, continuing in our effort to make City one of the nation's safest cities; and WHEREAS, City desires to contract with Fowler to execute the Project. NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: AGREEMENT 1. Responsibilities of Fowler Fowler covenants and agrees to fully perform, or cause to be performed, with good faith and due diligence, all work and services described in Exhibit "A" — Project Proposal, attached, and incorporated herein for all purposes incident to this Agreement. Fowler shall be responsible for day-to-day administration of the Project. Fowler agrees to expend the Project Funds in accordance with its Project budget, described in Exhibit "A", attached. 2. Proiect Funds 2.1 In no event shall the total distributions of Project Funds from City made to Fowler during the term of this Agreement exceed the total sum of $250,000.00. In the event this Agreement is terminated, for any reason at any time, Fowler shall return to City any unused portion of Project Funds distributed hereunder. 2.2 Payment of the Project Funds from City to Fowler shall be made on a cost-reimbursement basis following receipt by City from Fowler of a signed invoice. Fowler shall deliver to City a 1 written detailed Project Narrative with each invoice to support expenditure of Project Funds. Such narrative shall be signed by Fowler or duly authorized officer of Fowler. The invoice and monthly report shall be submitted to City no later than the 15th day following the end of the month. 3. Term The term of this Agreement is for a period beginning on October 11, 2006, and ending on February 28, 2007. All expenditures and payments must be completed prior to February 28, 2007. 4. Proiect Performance 4.1 Fowler agrees to maintain full documentation supporting the performance of the work and fulfillment of the objectives set forth in Exhibit "A" in its contract. 4.2 Fowler agrees to provide City with any and all documentation necessary to fulfill the requirements of the Homeland Security Grant Program. 5. Default and Termination 5.1 This Agreement is wholly conditioned upon the actual receipt by City of Project Funds. All monies distributed to Fowler hereunder shall be exclusively from monies received from the Homeland Security Grant Program, and not from any other monies of City. In the event that funds from the Homeland Security Grant Program are not timely received, in whole or in part, City may, at its sole discretion, terminate this Agreement and City shall not be liable for payment for any work or services performed by Fowler under or in connection with this Agreement. 5.2 If for any reason at any time during any term of this Agreement, City Council of City fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Fowler by written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by City Council for the purposes set forth in this Agreement. 5.3 This Agreement may be terminated by City, in whole or in part, whenever such termination is determined by City to be in the best interest of City; in event of Fowler default, inability to perform or to comply with the terms herein; or for other good cause. 5.4 Termination will be effected by delivering to Fowler a notice of termination, specifying the portion of the Agreement affected and the effective date of termination. Upon Fowler's receipt of notice of termination, Fowler shall: (a) Stop work under the Agreement on the date and to the extent specified in the notice of termination; (b) Place no further order or subcontracts, except as may be necessary for completion of the work not terminated; (c) Terminate all orders and contracts to the extent that they relate to the performance of the work terminated by the notice of termination; and (d) Cease expenditures of Project Funds, except as may be necessary for completion of the work not terminated. 2 5.5 In the event City suspends or terminates this Agreement for cause, and the cause for such suspension or termination is determined to be invalid, Fowler's sole remedy shall be reinstatement of this Agreement. Fowler expressly waives any and all rights to monetary damages, including but not limited to actual and punitive damages, court costs and attorney's fees. 5.6 Within thirty (30) days following the date of termination of this Agreement, Fowler shall return to City any property provided hereunder or as so directed by the Contract Administrator. City will have no responsibility or liability for Fowler's expenditures or actions occurring after the effective date of termination of the Agreement. 6. Equipment and Maintenance All equipment purchased with Project Funds must meet all eligibility requirements of City and the Homeland Security Grant Program. Fowler shall maintain all equipment used in the administration and execution of the Project. Fowler shall maintain, replace or repair any item of equipment used in support of the Project and/or for use under the terms of this Agreement that no longer functions or is lost or stolen. The cost for maintenance, replacement or repair of any equipment used in support of the Project and/or for use under the terms of this Agreement is the sole responsibility of Fowler. Fowler shall not use Project Funds or City funds to repair or replace said equipment. Fowler shall use any and all equipment purchased with Project Funds exclusively in support of the Project. 7. Administrative Requirements 7.1 Fowler agrees to keep sufficient records to document its adherence to applicable local, state and federal regulations, along with documentation and records of all receipts and expenditures of Project Funds. All records shall be retained for three (3) years following the termination or completion of this Agreement. City or their representatives shall have the right to investigate, examine and audit at anytime any and all such records relating to operations of Fowler under this Agreement. Fowler, its officers, members, agents, employees, and subcontractors, upon demand by City, shall make such records readily available for investigation, examination, and audit. In the event of such audit by City, a single audit of all Contractors' operations will be undertaken and may be conducted either by City or an independent auditor of City's choice. Fowler shall submit a copy of any audit performed by their independent auditor within 30 days of receipt of the final audit report. 7.2 If any audit reveals a questioned practice or expenditure, such questions must be resolved within fifteen (15) days after notice to Fowler by City. If questions are not resolved within this period, City reserves the right to withhold further funding under this and/or future contract(s) with Fowler. 7.3 If, as a result of any audit, it is determined that Fowler misused, misapplied or misappropriated all or any part of the Project Funds, Fowler agrees to reimburse City the amount of such monies so misused, misapplied or misappropriated, plus the amount of any sanction, penalty or other charge levied against City because of such misuse, misapplication or misappropriation. 3 7.4 Fowler's obligation to City shall not end until all closeout requirements are completed. Activities during this closeout period shall include, but are not limited to: making final payments, disposing of the Project assets as appropriate and as directed by City's Contract Administrator. 7.5 Fowler covenants and agrees to fully cooperate with City in monitoring the effectiveness of the services and work to be performed by Fowler under this Agreement, and City shall have access at all reasonable hours to offices and records of Fowler, its officers, members, agents, employees, and subcontractors for the purpose of such monitoring. 8. Independent Contractor 8.1 Fowler shall operate hereunder as an independent contractor and not as an officer, agent, or servant or employee of City. Fowler shall have exclusive control of, and the exclusive right to control, the details of the work and services performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, members, agents, servants, employees, subcontractors, Project participants, licensees or invitees. The doctrine of respondeat superior shall not apply as between City and Fowler, its officers, members, agents, servants, employees, subcontractors, Project participants, licensees or invitees, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Fowler. It is expressly understood and agreed that no officer, member, agent, employee, subcontractor, licensee or invitee of Fowler, nor any Project participant hereunder is in the paid service of City and that City does not have the legal right to control the details of the tasks performed hereunder by Fowler, its officers, members, agents, employees, subcontractors, Project participants, licensees or invitees. 8.2 City shall in no way nor under any circumstances be responsible for any property belonging to Fowler, its officers, members, agents, employees, subcontractors, Project participants, licensees or invitees, which may be lost, stolen, destroyed or in any way damaged. 9. Indemnification 9.1 FOWLER COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL 1NJURY, 1NCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES OF THE PROJECT DESCRIBED HEREIN, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY; AND FOWLER HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL 1NJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER K1NDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON- 4 � PERFORMANCE OF THIS CONTRACT AND AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES OF THE PROJECTS DESCRIBED HEREIN, WHETHER OR NOT CAUSED IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY. FOWLER LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY 1NDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF FOWLER, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, 1NVITEES, LICENSEES, OR PROJECT PARTICIPANTS, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY. 9.2 FOWLER AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE INJURY, DEATH, DAMAGE OR LOSS IS CAUSED SY CITY'S SOLE OR CONCURRENT NEGLIGENCE. 9.3 Fowler 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. 10. Non-Assi�nment No assignment ar delegation of duties under this Agreement by Fowler shall be effective without City's prior written approval. 11. Prohibition A�ainst Interest 11.1 No member, officer or employee of City, or its designees or agents; no member of the governing body of the locality in which the Project is situated; and no other public official of such locality or localities who exercises any functions or responsibilities with respect to the Project during his tenure or for one year thereafter, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed hereunder. Fowler shall incorporate, or cause to be incorporated, like language prohibiting such interest, in all contracts and subcontracts hereunder. 11.2 No officer, employee, member or Project participant of Fowler shall have a financial interest, direct or indirect, in this Agreement or the monies transferred hereunder, or be financially interested, directly or indirectly, in the sale to Fowler of any land, materials, supplies, or services purchased with any funds transferred hereunder, except on behalf of Fowler, as an officer, employee, member or Project participant. Any willful violation of this paragraph with the knowledge, expressed or implied, of Fowler ar its subcontractors, shall render this Agreement voidable by City of Fort Worth. s 12. Nondiscrimination In accordance with federal, state and local laws and ordinances, Fowler covenants that neither it nor any of its officers, members, agents, employees, Project participants, or subcontractors, while engaged in performing this Agreement shall in connection with the employment, advancement, or discharge of employees, in connection with the terms, conditions or privileges of their employment, discriminate against persons because of their age, except on the basis of a bona fide occupational qualification, retirement plan, or statutory requirement. 13. Compliance 13.1 Fowler, its officers, members, agents, employees, Project participants, and subcontractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. If City calls to the attention of Fowler any such violation on the part of Fowler or any of its officers, members, agents, employees, subcontractors or Project participants, then Fowler shall immediately desist from and correct such violation. 13.2 Fowler shall utilize Project Funds strictly for those purposes and goals intended under the terms and conditions of this Agreement. If City calls the attention of Fowler to any such violations on the part of Fowler or any of its officers, members, agents, employees, Project participants or subcontractors, then Fowler shall immediately desist from and correct such violation. 14. Insurance Requirement A. During the term of this agreement and before installation, Fowler shall maintain the following insurance coverage and Fowler shall provide such insurance to Citv and the respective policies thereof shall cover all risks related to the use and occupancy of the right-of-way and other City property and all other risks associated with this use agreement: Commercial General Liability Insurance: $1,000,000.00 per occurrence combined single limit for bodily injury and property damage; $2,000,000.00 aggregate. B. Fowler shall require its contractors to maintain the following insurance coverage: 1. Commercial General Liability Insurance $1,000,000.00 per occurrence $2,000,000.00 aggregate. 2. Automobile Liability Insurance: $1,000,000.00 each accident on combined single limit basis, or $250,000.00 property damage $500,000.00 bodily injury per person per occurrence $2,000,000.00 aggregate. 0 Coverage shall be on "any auto", including leased, hired, owned, non- owned and borrowed vehicles. 3. Workers' Compensation Insurance a. Statutory limits for Workers' Compensation; and b. Employer's Liability $100,000.00 in each of the following three categories: $100,000.00 each accident $100,000.00 disease-policy limit; and $500,000.00 disease-each employee. C. All policies shall contain the following endorsements: l. The City of Fort Worth, its Officers and Employees shall be named as an additional insured on all policies in respect to the environmental sampling and the operations under this agreement; 2. City shall be notified a minimum of thirty (30) days prior to the cancellation or non-renewal of, or material changes to said policies; and 3. All policies shall be endorsed with waivers of subrogation in favor of City. D. The insurers for all policies must be licensed to do business in the State of Texas and have a minimum rating of A:VII in the current A.M. Best Key rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management for the City of Fort Worth. E. Programs of self-insurance in lieu of commercial insurance policies shall be approved by the Risk Manager, and, as applicable, pre-approved by the Texas Department of Insurance. F. The deductibles or self insured retention (SIR) affecting the insurance coverage required shall be acceptable to the Risk Manager of the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk relations groups must also be approved. G. Fowler shall provide City with certificates of insurance documenting Fowler's and Fowler's contractor's coverage as outlined above prior to commencing any operations under this agreement. H. Failure on part of City to request documentation of insurance required herein shall not be construed as a waiver of the requirement for same. I. The City may revise insurance requirements specified herein, at its sole discretion, to protects its interest, giving ample prior notice to Fowler. 7 15. Miscellaneous Provisions 15.1 The provisions of this Agreement are severable, and, if for any reason a clause, sentence, paragraph or other part of this Agreement shall be determined to be invalid by a court or Federal or state agency, board or commission having jurisdiction over the subject matter thereof, such invalidity shall not affect other provisions which can be given effect without the invalid provision. 15.2 City's failure to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's right to assert or rely upon any such term or right on any future occasion. 15.3 Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance or non-performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. 15.4 Fowler represents that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement and to perform the responsibilities herein required. 15.5 This written instrument and the exhibits attached hereto, which are incorporated by reference and made a part of this Agreement for all purposes, constitute the entire agreement between the parties concerning the wark and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement which purports to vary from the terms hereof shall be void. Any amendments to the terms of this Agreement must be in writing and must be approved by each party. 15.6 All notices required or permitted by this Agreement must be in writing and are deemed delivered on the earlier of the date actually received or the third day following (i) deposit in a United States Postal Service post office or receptacle; (ii) with proper postage (certified mail, return receipt requested); and (iii) addressed to the other party at the address as follows or at such other address as the receiving party designates by proper notice to the sending party. l. CITY: Joe Paniagua, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies To: Juan Ortega, Director Emergency Management Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 2. FOWLER: lo� OHv�4.�� , v�c� �-�i�Err' The Fowler Group 6100 W. Poly Webb Rd. Arlington, Texas 76016 8 15.7 None of the performance rendered under this Agreement shall involve, and no portion of the Project Funds received hereunder shall be used, directly or indirectly, for the construction, operations, maintenance or administration of any sectarian or religious facility or activity, nor shall said performance rendered or funds received be utilized so as to benefit, directly or indirectly, any such sectarian or religious facility or activity. 15.8 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 15.9 The provisions and conditions of this Agreement are solely for the benefit of City and Fowler and are not intended to create any rights, contractual or otherwise, to any other person or entity. [THE REMAlNDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.] IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples in Tarrant County, Texas, to be effective October 11, 2006. ATTEST: APPROVED AS TO FORM AND LEGALITY: : � Assistant City Attorney 10 CITY OF FORT VyORTH � i� >� i� By: �- �.��� F,__ �� Joe Pa ia a Assistant City Mahager Contract Authorization Date THE FOWLER GROUP, a Texas Corporation - --- �,-_ / _ By:� � � - Name: a�� �(Jr��s �� S �,.� Title: �1�c� ���'�� ` Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 10/10/2006 DATE: Tuesday, October 10, 2006 LOG NAME: 02EM0 PUB ED REFERENCE NO.: **G-15437 SUBJECT: Authorize the Execution of a Contract with the Fowler Group to Execute the Regional Disaster Education Project RECOMMENDATION: It is recommended that the City Council: 1. Authorize a contract with the Fowler Group to execute the Regional Disaster Education Project in the amount of $250,000 from grant funds. DISCUSSION: The City of Fort Worth became an Urban Area Security Initiative (UASI) city in 2005. It holds that designation along with the City of Arlington and the City of Dallas. These three cities along with all contiguous jurisdictions make up the Metroplex Urban Area Security Initiative (MUASI). The MUASI steering committee earmarked $250,000 of 2005 UASI homeland security grant funding for the development of a regional disaster education project. The City of Fort Worth was selected to lead this project. Upon completion, this project will generate public education materials specific to the hazards and needs of our area and citizens. These materials will then be used to educate our citizens for disaster preparedness, continuing in our effort to make the City of Fort Worth one of the nation's safest cities. Thirteen companies responded to the request for proposal for this project. The award panel, comprised of seven members from across the metroplex (City of Fort Worth; City of Arlington; City of Dallas; Dallas County; City of McKinney; Collin County; and City of Rockwall) reviewed all proposals received. The top five companies were selected to present their proposals, budgets and ideas for the execution of the project to the award panel. At the conclusion of those presentations, the award panel decided that the Fowler Group best fit the needs of the project and our communities. The Fowler Group was selected based on their creativity and conceptual ideas for executing the project, their initiative for the distribution of the completed materials to the community, and the ability for our jurisdictions to customize the materials to our individual jurisdictions with logos and contact information. The proposed contract will be for a term beginning October 11, 2006 and ending February 28, 2007. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, in the Grants Fund. http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 2/5/2007 TO Fund/AccountlCenters Submitted for City Manager's Office b� Originating Department Head: Additional Information Contact: Page 2 of 2 FROM Fund/Account/Centers GR76 539120 002442071060 $250,000.00 Summer Wilhelm (6171) Juan Ortiz (6173) Joe Paniagua (6191) Cindy CarFa (6174) http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 2/5/2007