Loading...
HomeMy WebLinkAboutContract 43198 (2)or( SECRETARY' J CONTRACT NO.1, AGREEMENT FOR PERSONAL SERVICES THIS AGREEMENT FOR PERSONAL SERVICES ("Agreement") is made and entered into by and between THE CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and STULUTION ("Consultant"), a Texas sole proprietorship acting by and through its duly authorized Owner. WHEREAS, the City owns and operates a number of golf courses that are open for public play; and WHEREAS, Consultant is a marketing and promotions firm that utilizes social media tools to grow an organization's customer base; and WHEREAS, the City wishes to engage Consultant to provide marketing services for the City's golf courses on a contingent -fee basis in order to increase revenue by generating additional rounds of tournament and outing play. NOW, THEREFORE, for and in consideration of the mutual agreements stated herein, the Parties agree as follows: 1. Services. a) Consultant will, with good faith and due diligence, use its marketing expertise to seek out, recruit, and retain tournament and outing play for all City -owned golf courses in accordance with the terms of this Agreement. b) Consultant shall be responsible for coordinating with the City's Golf Director to schedule periodic play at each golf course throughout the term of this Agreement to ensure on -going familiarity with the conditions of the facilities. c) Consultant shall be responsible for coordinating with the Head Golf Pro at each of the City golf courses to arrange reasonable familiarization play for organizers of potential tournaments or outings if required in connection with the booking of an event, to determine course availability for a proposed event, and to schedule the event. Personal Services greeme* WWI §tuttition >-1 i > OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 1 of 14 d) Subject to the limitation contained in Subsection 1(f), Consultant shall be responsible for negotiating the fees for all goods and services at the golf courses in a manner that allows the City to realize maximum revenue. Negotiations may include, but are not limited to, the fees for using the greens, carts, driving ranges, and practice holes and the costs for food, beverage, merchandise, tournament awards, and instructor time. e) Following negotiation, Consultant shall employ City -provided forms to formalize contractual obligations related to any tournament or outing that Consultant books. All such forms shall be and remain the sole property of the City. 0 g) The City shall periodically provide Consultant with a schedule of Base Rate fees that represent the least amount of compensation that the City will accept in exchange for goods and services at each golf course. Because goods and services offered at the golf courses involve varying degrees of overhead and fixed costs, the Base Rate schedule may include both (i) specific monetary amounts and (ii) maximum allowable discounts off of posted rates. Consultant may not offer to sell any good or service at any City golf course for an amount that is less than the then -effective Base Rate, unless specific approval has been given in advance by the Director of the City's Parks and Community Services Department or that individual's authorized designee. In addition, Consultant will be required to provide the host course with tournament pairings, event information, and an event -requirement worksheet and to be present the day of the event unless specific approval has been given in advance by the Director of the City's Parks and Community Services Department or that individual's authorized designee. h) Following each Consultant -coordinated event, Consultant shall provide, at no cost to the City, follow-up thank you correspondence to gather feedback for potential improvements and to increase the likelihood of continued patronage. i) The actions and objectives contained in this Section 1 are referred to in this Agreement as the "Services." j) Consultant shall perform all Services in accordance with the prevailing professional Personal Services Agreement with StuLution Page 2 of 14 standards in the industry for the same or similar services, including reasonable, informed judgments and prompt, timely action. If Consultant is representing that it has special expertise in one or more areas to be utilized in this Agreement, then Consultant agrees to perform those special expertise services to the appropriate local, regional or national professional standards. 2. Term. Services shall be provided by Consultant for a term beginning /Ll w y `f , 2.o / 7- and ending /4.,,, b', ?o/ 3 ("Term") unless terminated earlier in accordance with Section 4 of this Agreement This Agreement may be renewed for additional one-year periods by mutual written agreement of the Parties. 3. Compensation a) Fee As full and complete compensation for all Services described above, Consultant shall be paid the following fee: For a new tournament or outing that the Consultant secured without City assistance - an amount equal to 15% of the gross revenue generated from fees for using the greens, carts, driving ranges, and practice holes For a new tournament or outing for which the City provided the initial lead or other assistance - an amount equal to 10% of the gross revenue generated from fees for using the greens, carts, driving ranges, and practice holes For a returning tournament or outing that the Consultant initially recruited and secured - an amount equal to 10% of the gross revenue generated from fees for using the greens, carts, driving ranges, and practice holes For merchandise - an amount equal to 3% of the sales price (excluding sales tax) for each item of merchandise (i) that the Consultant pre -sells in connection with the booking of an outing or tournament and (ii) for which the City makes a profit of at least twenty -percent above the City's cost; for purposes of this provision the term "pre -sell" shall refer to City being provided a signed, legally enforceable Personal Services Agreement with StuLution Page 3 of 14 purchase order and deposit from the tournament or outing organizer at least three business days prior to the date of the event or outing b) Structure of Payments i. The Consultant will issue monthly invoices for all work performed under this Agreement. Invoices shall be submitted no later than the 10th day following the end of the month and sent to Nancy Bunton, Parks and Community Services Department, 4200 South Freeway, Suite 2200, Fort Worth, Texas 76115 Invoices are due and payable within 30 days of receipt. ii Invoices shall indicate the name of the event, the number of participants, the price charged for the event, and the name of the facility where the event was held and shall indicate the amount of compensation being requested. If the City requires additional reasonable documentation, it shall request the same promptly after receiving the above -described information, and the Consultant shall provide such additional reasonable documentation to the extent the same is available. iii. On full and final completion of the Services, Consultant shall submit a final invoice, and City shall pay any balance due within 30 days of receipt of such invoice. iv. In the event of a disputed or contested billing, only the portion being contested will be withheld from payment, and the undisputed portion will be paid. City will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until the contest has been mutually resolved. v. For contested billings, the City shall make payment in full to Consultant within 60 days of the date the contested matter is resolved If City fails to make such payment, Consultant may, after giving 7 days' written notice to City, suspend services under this Agreement until paid in full, including Personal Services Agreement with StuLution Page 4 of 14 interest calculated from the date the billing contest was resolved In the event of suspension of services, Consultant shall have no liability to City for delays or damages caused to City because of such suspension of services. 4. Termination Either Party may terminate this Agreement at any time, with or without cause, by providing the other Party with thirty (30) days' written notice of termination. In the event this Agreement is terminated prior to expiration of the Term, City shall pay Consultant only for Services actually rendered as of the effective date of termination. In the event this Agreement is terminated prior to expiration of the Term, Consultant 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 5. Indenendent Contractor. Consultant shall operate hereunder as an independent contractor and not as an officer, agent, servant, or employee of City. Consultant shall have exclusive control of and the exclusive right to control the details of the Services performed hereunder and all persons performing same and shall be solely responsible for the acts and omissions of its officers agents, servants, employees, and subcontractors. The doctrine of respondeat superior shall not apply as between the City and Consultant, its officers, agents, servants, employees, or subcontractors. Nothing herein shall be construed as creating a partnership or joint enterprise between City and Consultant. It is expressly understood and agreed that no officer, agent, servants, employee, or subcontractor of Consultant is in the paid service of City. 6. Liability and Indemnification. 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, OFANY 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. CONSULTANT AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE Personal Services Agreement with StuLution Page 5 of 14 OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (1) CONSULTANT'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (11) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITI9, OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT. THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONSULTANT AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS. Consultant shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. This section shall survive the expiration or termination of this Agreement. 7. Confidential and Proprietary Information. The City acknowledges that Consultant may use products, materials, or methodologies proprietary to Consultant. The City agrees that Consultant'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. Consultant for itself and its officers, agents, servants, employees, and subcontractors, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to any third party without the prior written approval of the City. Notwithstanding the foregoing, Consultant understands and agrees that the City is a public entity under the laws of the State of Texas, and as such, is subject to various public information laws and regulations, including, but not limited to, the Texas Public Information Act, Chapter 552 of the Texas Government Code (the "Act"). Consultant acknowledges that, under the Act, the following information is subject to disclosure: 1) all documents and data held by the City, including information obtained from the Consultant, and 2) information held by the Consultant for or on behalf of City that relates to the transaction of City's business and to which Personal Services Agreement with StuLution Page 6 of 14 City has a right of access If the City receives a request for any documents that may reveal any of Consultant's proprietary information under the Act, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Consultant prior to disclosure of such documents The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as "Proprietary / Confidential Information" or if disclosure is required by the Act or any other applicable law or court order In the event there is a request for such infotniation, it will be the responsibility of Consultant to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction 8. Insurance. During the term of this Agreement, Consultant shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth in this Section as well as any and all other public risks related to Consultant's performance of its obligations under this Agreement. Consultant shall specifically obtain the following types of insurance at the following limits: e Business Automobile Liability Insurance: $500,000.00 each accident on a combined single limit basis. A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired, and non -owned General Conditions Applicable to Required Insurance Certificates of insurance shall be delivered to the City of Fort Worth prior to commencement of work, addressed to the attention of the Risk Management Division, 1000 Throckmorton Street, Fort Worth Texas 76102 with a copy to the Golf Director at the Parks and Community Services Department office. The City's Risk Manager shall have the right to review and evaluate all required insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. Consultant and its subcontractors shall comply with such requests or revisions as a condition precedent to the effectiveness of this Agreement. The City and its officers, employees, and servants shall be endorsed as an additional insured on all liability insurance policies required under this Agreement Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days' notice of cancellation, non -renewal, and/or material change in policy terms or coverage, provided, Personal Services Agreement with StuLution Page 7 of 14 however, that a ten day notice shall be acceptable in the event of cancellation for non-payment of premium. All insurance policies required under this Agreement shall be endorsed with a waiver of subrogation in favor of the City. Insurers shall have no right of recovery of subrogation against City, it being the intention that the insurance policy shall protect all Parties to the agreement and be primary coverage for all losses covered by the policies. The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's self insured retention of whatever nature. Consultant's insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. On the request of City, Consultant shall provide complete copies of all insurance policies required by this Agreement. Current and revised certificates of insurance shall be delivered to the Risk Management Division of the City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102 with copy to the Golf Director at the Parks and Community Services Department office. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. 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. Deductible limits, or self -funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved in writing by the City. The City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups in lieu of traditional insurance. Prior to employing such alternative coverage, the Consultant must obtain City's written approval. City shall not be responsible for the direct payment of insurance premium costs for the Consultant's insurance. Consultant may be required to provide City with proof of insurance premium payments During any term of this Agreement, Consultant shall report to the City's Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. The Consultant's liability shall not be limited to the specified amounts of insurance required herein Consultant shall not do or permit to be done anything in or upon any portion of any City real property, or bring or keep anything therein or thereupon that will in any way conflict with the conditions of any insurance policy on the City real property, or any part thereof, or in any way increase the rate of fire insurance on the City real property or on personal property kept therein, or in any way obstruct or interfere with the rights of other users of the City real property, or Personal Services Agreement with StuLution Page 8 of 14 injure or annoy them. Consultant shall be responsible for providing the City with timely notice of any change to its insurance coverage that amends or alters what is required by contract. 9. Assignment Consultant shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment of subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. If City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. Effect on Third Parties. Nothing in this Agreement shall be construed in any manner to create a cause of action for the benefit of any person not a party to this Agreement or to create any rights not otherwise existing at law for the benefit of any person not a party to this Agreement Nothing in this Agreement shall be deemed to constitute a waiver of any immunity or affirmative defense that may be asserted by the Consultant or the City as to claims of any third party. 11. Compliance with Law. Consultant, its officers, agents servants, employees, and subcontractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Consultant any such violation on the part of Consultant or any of its officers, agents servants, employees, or subcontractors, then Consultant shall immediately desist from and correct such violation Personal Services Agreement with StuLution Page 9 of 14 12. Non -Discrimination. In the execution, performance, or attempted performance of this Agreement, Consultant will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will Consultant permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and Consultant hereby covenants and agrees that Consultant, its officers, agents, employees, and subcontractors have fully complied with all provisions of same and that no employee or employee -applicant has been discriminated against by either Consultant, its officers, agents, employees, or subcontractors. 13. Right to Audit. 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 the Consultant involving transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all of its subcontractor agreements hereunder a provision to the effect that the subcontractor 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 subcontractor involving transactions to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give subcontractor reasonable advance notice of intended audits. This section shall survive the expiration or termination of this Agreement Personal Services Agreement with StuLution Page 10 of 14 14. Fiscal Funding In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments 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 shall have been appropriated. 15. Choice of Law; Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas If any action, whether real or asserted, at law or in equity, arises on the basis of any 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. 16. 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, postage prepaid, to the address of the other Party shown below: IF TO CITY IF TO CONSULTANT Susan Alanis, Assistant City Manager Stu Arledge City of Fort Worth StuLution 1000 Throckmorton St 210 W Lancaster #401 Fort Worth, Texas 76102 Fort Worth, Texas 76102 (817) 392-6183 (682) 233-3417 17. Solicitation of Employees. Neither the 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 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. 18. Non -Waiver. The failure of either Party to insist upon the performance of any telui 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 or Consultant's right to assert or rely on any such term or right on any future occasion. 19. Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Personal Services Agreement with StuLution Page 11 of 14 Consultant's provision of the Services. In the event that any conflicts of interest arise after the execution of this Agreement, Consultant hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict 20. Minority and Woman Business Enterprise Participation In accordance with City Code, the City has goals for the participation of minority business enterprises and woman business enterprises ("M/WBE") in City contracts. Consultant acknowledges the M/WBE goal established for this Agreement and its commitment to meet that goal. 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. 21. Governmental Powers. Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 22. 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. 23. Force Majeure. If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security* any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. 24. Headings not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement Personal Services Agreement with StuLution Page 12 of 14 mositcm'cvittz fO$7 zlzi a000aao,o CS °ea) APPROVED AS TO FORM it�,,p.��- AND LEGALITY: 25. 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. 26. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the Parties hereto. 27. Signature Authority. The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective Party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement. 28. Entire Agreement. This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the Parties concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. EXECUTED in multiple originals on this, the day of 4: ' , 2012. CITY OF FORT WORTH, TEXAS Alanis Assistant City Mang r Date Signed: sj&I I a" ATTEST: y Secr+t Personal Services Agreement with StuLution °co o0 %, 0 o *"i 0 Qt o adii Oclke 4Qke STULUT ON Stu Arledge Owner Date Signed: WITNESS: OFFICIAL RECORD CITY SECRETARY pT. WORTH, TX Page 13 of 14 2 Tyler Wallach Assistant City Attorney No M&C Required Personal Services Agreement with StuLution Page 14 of 14