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HomeMy WebLinkAboutContract 43897 (2)11.1.2012 PROFESSIONAL SERVICES AGREEMENT CITY SECRETARY CONTRACT NOE I4g �I This PROFESSIONAL SERVICES AGREEMFNT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Charles Daniels, its duly authorized Assistant City Manager, and J. Huber and Associates ("Consultant"), a incorporated in the state of Oklahoma and acting by and through John J. Huber, its duly authorized President each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A — Statement of Work plus any amendments to the Statement of Work 3. Exhibit B — Payment Schedule All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. 1. SCOPE OF SERVICES Consultant hereby agrees to provide the City with professional consulting services for the purpose of label design. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. 2. TERM This Agreement shall commence upon the date that both the City and Consultant have executed this Agreement ("Effective Date") and shall continue in full force and effect for two years ("Initial Term"), unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION The City shall pay Consultant an amount not to exceed $9,536.00 in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "B," which is incorporated for all purposes herein. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION OFFICIAL RECORD CITY SECRETARY 4.1. Written Notice. FT. WORTH, TX J The City or Consultant may terminate this Agreement at any time and for any John Huber Professional Services Agreement for Fort Worth Library Page 1 of 10 17-19-12 Ai 16 1 i,i 11.1.2012 reason by providing the other party with 30 days' written notice of termination. 4.2 Non -appropriation of Funds In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and 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. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. Consultant, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents papers and records of the consultant involving transactions relating to this Contract at no additional cost to the City Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. 7. INDEPENDENT CONTRACTOR It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges and work performed under this agreement and not as John Huber Professional Services Agreement for Fort Worth Library Page 2 of 10 11.1.2012 agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and o missions of its officers, agents, servants, employees, contractors and subcontractors Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents e mployees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is further understood that the City shall in no way be considered a Co -employer o r a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents servants, e mployees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors 8. LIABILITY AND INDEMNIFICATION A. LIABILITY - CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES B INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, S ERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR P ERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT O F OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE N EGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES 9. ASSIGNMENT AND SUBCONTRACTING Consultant 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 Consultant u nder 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 of the Consultant under this Agreement prior to the effective date of 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 o bligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. John Huber Professional Services Agreement for Fort Worth Library P age 3 of 10 11 12012 10. COMPLIANCE WITH LAWS. ORDINANCES, RULES AND REGULATIONS Consultant agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 11. NON-DISCRIMINATION COVENANT Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 12. 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) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: City of Fort Worth Attn: Charles Daniels, Assistant City Manager 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile: (817) 392-8654 13. SOLICITATION OF EMPLOYEES J Huber & Associates John J. Huber 7136 S Yale, Suite 300 Tulsa, OK 74136 jhaconsults@gmail.com 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. 14. GOVERNMENTAL POWERS/IMMUNITIES 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. 15. NO WAIVER The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City% or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. John Huber Professional Services Agreement for Fort Worth Library Page 4 of 10 11.1.2012 16. 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. 17. 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. 18. FORCE MAJEURE The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 19. 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. 20. 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 21. AMENDMENTS No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument which is executed by an authorized representative of each party. 22. ENTIRETY OF AGREEMENT This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. John Huber Professional Services Agreement for Fort Worth Library Page 5 of 10 11.1.2012 23. SIGNATURE AUTHORITY The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 24. 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. 25. WARRANTY OF SERVICES Consultant warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Consultant's option, Consultant shall either (a) use commercially reasonable efforts to re - perform the services in a manner that conforms with the warranty, or (b) refund the fees paid by the City to Consultant for the nonconforming services 26. IMMIGRATION NATIONALITY ACT The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees and upon request, provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 27. PUBLIC INFORMATION ACT Consultant understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Consultant shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any Consultant Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will notify Consultant prior to disclosure of such documents, and give Consultant the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to Consultant's information to those persons within its organization who have a need to know for purposes of management of this Contract. The City agrees to inform its John Huber Professional Services Agreement for Fort Worth Library Page 6 of 10 11.1.2012 employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. The City will use its best efforts to secure and protect Company's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by Consultant will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Contract. IN ITNF.SS WHEREOF,, the parties hereto have executed this Agreement in multiples this dayof //,071,1�� , 20lere�� `. ACCEPTED AND AGREED: CITY OF FORT WORTH: By: Charles Daniels Assistant City Manager Date: ATTEST: By: Mar City 4 cfr yserc-_ ecretary APPROVED AS TO LEGALITY: By: cl-idrl'R iv yl s Assistant City Attorney J. HUBER and ASSOCIATES By: Name: John J Huber Title: President „maim, Date: 15087ft' ‘4/N oac o TTEST: 011 ri 0 >•� �''� 0 Y o°,Cy By. on000cco te• �m• FORM CONTRACT AUTHORIZATION: M&C: None required AND Date Approved: John Huber Professional Services Agreement for Fort Worth Library Page 7 of 10 v Kathy Huber Secretary/ Treasurer OFFICIAL RECORD CITY SECRETARY FT. WORTHS TX 11 1 2012 EXHIBIT A STATEMENT OF WORK S cope of Services. Consultant covenants and agrees, with good faith and due diligence, to assist the City's Holds Team ("Holds Team") with evaluating designing developing and testing the Holds `Eight Up Pull List Label Solution as a pilot installation at the City's Central Library. This statement of work includes the Consultant's fees for label design, test data preparation and custom programming and installation fees The Consultant will also provide guidance on the purchase and costs of software license and label supplies. The Consultants professional fees and programming costs presented below are separate from the software license and label supplies. In particular, Consultant will assist the City with the following phases: P hase I — Proiect Label Desian and Test Data Preparation Description: Conference call between the Holds Team and Consultant Date: Two conference calls in October -December 2012 or another date mutually agreed upon by City and Consultant Consultant's Duties: Develop and obtain approval of label design. Assist FWL prepare test data for testing and evaluation. P hase II - Pick List Holds `Eight Up' Label Solution Description: On -site support visit of the Consultant with the Holds Team Date: Two to three days in December 2012 or another date mutually agreed upon by City and Consultant Consultant's Duties: Finalize the Holds `Eight Up' Label format and information to the criteria desired by FWL. Develop, customize and install the Print Wizard PE bridge software required to take the Sirsi Dynix print file output to print the custom Hold's Eight Up' Pick List Label Coordinate efforts to source the 'Eight Up' Holds Labels to replace the current pick lists report. Test the Holds `Eight Up' Pick List Label customized bridge software by using FWL s test server data. John Huber Professional Services Agreement for Fort Worth Library Page 8 of 10 11 12012 Train the pilot branch library personnel and systems support team on the new `Eight Up' Holds Pick List Label Solution. P roject Deliverables As a result of the project, J. Huber & Associates will provide and present the following deliverables: Phase I - Project Label Design and Test Data Preparation Deliverable: Finalized Hold Label Design Deliverable: Test Data Prepared and Analyzed Phase II - Develop. Install and Test Holds "Eight Up Label" Solution Deliverable: Deliverable: Deliverable: Deliverable: Deliverable: Deliverable: Custom Bridge Software — `Eight Up' Label Approved Software - Sample Data Test Server — `Eight Up' Label Stock Ordering Plan- Eight Up' Label Installed Software on Test PC — Eight Up' Label Tested and Approved Pilot Test — `Eight Up' Label Conversion Instructions- `Eight Up' Label P roject Label Design and Test Data Preparation - Phase 1 Costs The cost of this phase will be $900 00, including two conference calls to assist in the holds label design and to assist the City in the preparation of test data. P hase II - Develop, Install and Test the Holds "Eight Up Label" Solution Costs The Consultant's professional fees and custom programming will not exceed $7,100.00. For this phase, $5,900.00 of the costs will include two to three days of on -site support time Mr. Huber will provide one on site visit for Phase II. Project expenses will not exceed $1,200.00. Consultant agrees to provide the City a written statement of expenses before payment for expenses will be made S oftware License, Receipt Printers and Label Supply Costs For the sixteen (16) licenses, the Print Wizard PE license fees for the City's Central library and fifteen branches would total cost would not exceed $1,536.00. The City is receiving a discount of $384.00 for a volume purchase. Huber & Associates is a reseller of the Print Wizard software. The City will be licensed for the most current version of the Print Wizard PE software. The City can download all patch releases of licensed Print Wizard PE at no additional costs The City also has the option in the future to upgrade to the next major release of Print Wizard PE or SE, if the City exercises that option, then the City will receive a fifty percent (50%) discount off the full list price for the software If additional tasks are requested during the project, which fall outside of the defined scope and timeframe, then the City and the Consultant will agree in writing as to the scope and costs of the additional tasks. John Huber Professional Services Agreement for Fort Worth Library Page 9 of 10 11.1.2012 EXHIBIT B PAYMENT SCHEDULE Payment for professional services, expenses and license agreements shall be made as follows: Phase I — The City will pay $450.00 when Phase I begins and will pay the remaining balance of $450.00 when Phase I is completed. Phase II - The City will pay $2,950.00 at the beginning of Phase II and will pay the remaining balance of $2,950.00 when Phase II is complete. Expenses for Phase II will be paid upon the City receiving a written receipts for expenses that the Consultant has incurred in working on Phase II of the project. The $1,536.00 fee for the sixteen (16) software licenses will be paid for once the license has been installed and is operating at the Central Library. John Huber Professional Services Agreement for Fort Worth Library Page 10 of 10