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HomeMy WebLinkAboutContract 52435 RECEIVED CITY SECRETARY JUN 18 2019 CONTRACT NO. 5 CITY OE FORT WORTH CITYSECPP CITY OF FORT WORTH, TEXAS STANDARD AGREEMENT FOR PROFESSIONAL SERVICES This AGREEMENT is between the City of Fort Worth, a Texas home-rule municipality (the "CITY"), and Dunaway Associates, L.P., authorized to do business in Texas, an independent contractor ("Consultant"), for a Project generally described as: Update to the Neighborhood and Community Park Dedication Policy ("Project"). WHEREAS, on May 10, 2016, the City Council approved M&C C-27713, authorizing the City to enter into a contract with Consultant in an amount not to exceed $112,000.00 for the Project; and WHEREAS, on June 30, 2016, City and Consultant entered into a written agreement for the Project, the same being City Secretary Contract Number 47850 ("Prior Agreement"); and WHEREAS, the Prior Agreement provided for an initial term of one year, with one optional renewal term; and WHEREAS, on or about May 30, 2017, the City requested that Consultant suspend performing services under the Prior Agreement in order for the City to delay completion of the Project; and WHEREAS, the total amount paid by City to Consultant under the Prior Agreement was $98,491.18; and �. WHEREAS, on or about September 1, 2018, the City requested that Consultant complete plete the Project; and WHEREAS, Consultant completed the Project on or about January 1, 2019; and WHEREAS, City and Consultant never extended the Prior Agreement or entered into a new agreement for completion of the Project; and WHEREAS, City owes Consultant $8,000.00 for the additional work performed by Consultant to complete the Project; NOW THEREFORE, City and Consultant agree to enter into the following Agreement: Article I Scope of Services (1) Consultant hereby agrees to perform as an independent contractor the services set forth in the Scope of Services attached hereto as Attachment "A". These City of Fort Worth,Texas Standard Agreement for Professional Services OFFICIAL RECORD Revision Date:9/24/2014 Page 1 of 9 CITY SECRETARY FT. WORTH,TX services shall be performed in connection with completing the update to the City's Neighborhood and Community Park Dedication Policy. (2) Additional services, if any, will be requested in writing by the City. City shall not pay for any work performed by Consultant or its subconsultants, subcontractors and/or suppliers that has not been ordered in writing. It is specifically agreed that Consultant shall not be compensated for any alleged additional work resulting from oral orders of any person. Article II Compensation City shall pay Consultant a lump sum of $8,000.00 as full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment "A". Payment for services rendered shall be due within thirty (30) days of receipt by City of Consultant's invoice for payment and execution of this Agreement. Acceptance by Consultant of said payment shall operate as and shall release the City from all claims or liabilities under this Agreement for anything related to, done, or furnished in connection with the services for which payment is made, including any act or omission of the City in connection with such services. Additionally, City and Consultant agree that Consultant has been paid in full for all work completed pursuant to the Prior Agreement. Article III Term This Agreement shall be effective, beginning on September 1, 2018, and expire on January 1, 2019. Article IV Independent Contractor Consultant shall operate hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City. Consultant shall have exclusive control of and the exclusive right to control the details of its work to be performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondent superior shall not apply as between City and Consultant, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Consultant. Article V Professional Competence and Indemnification City of Fort Worth,Texas Standard Agreement for Professional Services Revision Date:9/24/2014 Page 2 of 9 (1) Work performed by Consultant shall comply in all aspects with all applicable local, state and federal laws and with all applicable rules and regulations promulgated by the local, state and national boards, bureaus and agencies. Approval by the City shall not constitute or be deemed to be a release of the responsibility and liability of Consultant or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its services performed hereunder. (2) In accordance with Texas Local Government Code Section 271.904, the Consultant shall indemnify, hold harmless, and defend the City against liability for any damage caused by or resulting from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the Consultant or Consultant's agent, consultant under contract, or another entity over which the Consultant's exercises control. Article VI Insurance (1) Consultant shall not commence work under this Agreement until it has obtained all insurance required under this Article and the City has approved such insurance, nor shall Consultant allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractor has been so obtained and approval given by the City; provided, however, Consultant may elect to add any subconsultant as an additional insured under its liability policies. Commercial General Liability $1,000,000 each occurrence $1,000,000 aggregate Automobile Liability $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Coverage shall be on any vehicle used in the course of the Project. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee (2) Additional Insurance Requirements City of Fort Worth,Texas Standard Agreement for Professional Services Revision Date:9/24/2014 Page 3 of 9 a. Except for employer's liability insurance coverage under Consultant's worker's compensation insurance policy, the City, its officers, employees and servants shall be endorsed as an additional insured on Consultant's insurance policies. b. Certificates of insurance shall be delivered to the Park & Recreation Department, Attention: Joel McElhany, 3200 South Freeway, Suite 2200, Fort Worth, TX 76115, prior to commencement of work. c. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. d. Each insurance policy shall be endorsed to provide the City a minimum thirty days notice of cancellation, non-renewal, and/or material change in policy terms or coverage. A ten days notice shall be acceptable in the event of non-payment of premium. e. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A: VII or equivalent measure of financial strength and solvency. f. Other than worker's compensation insurance, in lieu of traditional insurance, City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. The City must approve in writing any alternative coverage. g. Workers' compensation insurance policy(s) covering employees employed on the Project shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. h. City shall not be responsible for the direct payment of insurance premium costs for Consultant's insurance. i. Consultant's insurance policies shall each be endorsed to provide that such insurance is primary protection and any self-funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. j. In the course of the Agreement, Consultant shall report, in a timely manner, to City's officially designated contract administrator any known loss occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss. k. Consultant's liability shall not be limited to the specified amounts of insurance required herein. City of Fort Worth,Texas Standard Agreement for Professional Services Revision Date:9/24/2014 Page 4 of 9 I. Upon the request of City, Consultant shall provide complete copies of all insurance policies required by these Agreement documents. Article VII Transfer or Assignment City and Consultant each bind themselves, and their lawful successors and assigns, to this Agreement. Consultant, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this Agreement without prior written consent of the City. Article VIII Termination of Contract (1) City may terminate this Agreement for its convenience on 30 days' written notice. Either the City or the Consultant for cause may terminate this Agreement if either Party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with 5 days of written notice and diligently complete the correction thereafter (2) If City chooses to terminate this Agreement under Article 8, upon receipt of notice of termination, Consultant shall discontinue services rendered up to the date of such termination and City shall compensate Consultant based upon calculations in Article 2 of this Agreement and Exhibit "B" attached hereto and incorporated herein. (3) All reports, whether partial or complete, prepared under this Agreement, including any original drawings or documents, whether furnished by the City, its officers, agents, employees, consultants, or contractors, or prepared by Consultant, shall be or become the property of the City, and shall be furnished to the City prior to or at the time such services are completed, or upon termination or expiration of this Agreement. Article IX Right to Audit (1) Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Consultant involving transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Consultant reasonable advance notice of intended audits. City of Fort Worth,Texas Standard Agreement for Professional Services Revision Date:9/24/2014 Page 5 of 9 (2) Consultant further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontracting consultant agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such sub-consultant, involving transactions to the subcontract, and further, that City shall have access during normal working hours to all sub-consultant facilities, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this article. City shall give Consultant and any sub-consultant reasonable advance notice of intended audit. (3) Consultant and sub-consultants agree to photocopy such documents as may be requested by the City. The City agrees to reimburse Consultant for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. Article X Minority Business and Small Business Enterprise (MBE)(SBE) Participation In accordance with the City's Business Diversity Enterprise Ordinance No. 20020-12-2011, as amended, the City has goals for the participation of minority business enterprises and/or small business enterprises in City contracts. Consultant acknowledges the MBE and SBE goals established for this Agreement and its accepted written commitment to MBE and SBE participation. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Consultant may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. Article XI Observe and Comply Consultant shall at all times observe and comply with all federal, state, and local laws and regulations and with all City ordinances and regulations which in any way affect this Agreement and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. Consultant agrees to defend, indemnify and hold harmless City and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law, ordinance, or regulation, whether it be by itself or its employees. Article XII Venue and Jurisdiction If any action, whether real or asserted, at law or in equity, arises on the basis of any City of Fort Worth,Texas Standard Agreement for Professional Services Revision Date:9/24/2014 Page 6 of 9 provision 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. This Agreement shall be construed in accordance with the laws of the State of Texas. Article XIII Contract Construction The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. Article XIV Severability The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. Article XV Notices Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand-delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: City of Fort Worth Attn: Park & Recreation Department 3200 South Freeway, Suite 2200 Fort Worth, Texas 76115 Consultant: Dunaway Associates, L.P. Attn: Barry L. Hudson 550 Bailey Avenue, Suite 400 Fort Worth, TX 76107 Article XVI City of Fort Worth,Texas Standard Agreement for Professional Services Revision Date:9/24/2014 Page 7 of 9 Headings The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement Article XVII 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 but one and the same instrument. EXECUTED to be effective on the dates set forth in Article III above. BY: BY: CITY OF FORT WORTH CONSULTANT Dunaway Associates, P. Fernando Costa r . Hudson, AICP CNU-A Assistant City Manager for Discipline Lead/Associate Date: 6174.2 Date: APPROVAL RECOMMENDED: By: _ z DkOid Cr ek, Ac ' g Director Park & Recreation Department APPROVED AS TO FORM AND M&C No: N/A LEGALITY M&C Date: N/A By: Richard A. McCracken Assistant City Attorney RT ATTEST: Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract including Miry J. Kayger V ensuring all performance and reporting City of Fort Worth,Texas '•< Standard Agreement for Professional Services Revision Date:9/24/2014 Page 8 of 9 OF RECORD CITY SECRETARY FT. WORTH,TX City Secretary re uirements. J1 el cEl any, Capital-Pro ram Manager EXHIBITAJ SCOPE OF SERVICES Consultant shall provide City with additional professional engineering consultation services to complete the update to the City's Neighborhood and Community Park Dedication Policy. Consultant shall attend coordination meetings with Park & Recreation Department staff, perform additional research as requested by the Park & Recreation Department, attend meetings with stakeholders groups and the TRAC group, and attend additional Development Advisory Committee meetings. :~OFFICIAL RECORD City of Fort Worth,Texas C�'J f SECRETARY Standard Agreement for Professional Services Revision Date:9/24/2014 4�;•c,. WORTH,TX Page 9 of 9