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HomeMy WebLinkAboutContract 54524 CSC No.54524 VENDOR SERVICES AGREEMENT DEODERIZING SERVICES This VENDORSERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FO T WORTH("City"),a Texas home rule municipal corporation,acting by and through its duly authorize Assistant City Manager, and West Sanitation Services, Inc. dba AeroWest International ("Vendor"), d acting by and through its duly authorized representative, each individually referred to as a"party"an collectively referred to as the"parties." AGREEMENT DOC NTS: This Agreement and supporting documents shall include Exhibit A—City of Fort Worth Bid Offer Sheet (in its entirety) and Vendor's incorporated Response thereto and Exhibit B — Verification of Signature Authority. Exhibits A and B,which ar attached hereto and incorporated herein,are made a part of this Agreement for all purposes.In the event o any conflict between the terms and conditions of Exhibit A and the terms and conditions set forth in the body of this Agreement,the terms and conditions of this Agreement shall control. 1. SCOPE OF SERVICES. Deodorizing servic Bs.Exhibit A more specifically describes the services to be provided hereunder. 2. TERM. This Agreement s all begin on the Effective Date, as established herein, and shall expire on September 30, 2020, unless terminated earlier in accordance with this Agreement. City shall have the option, in its sole discretion,to renew this Agreement under the same terms and conditions, for up to four (4)one-year(October 1-Se tember 30)renewal options. 3. COMPENSATION. City shall pay Vendor in accordance with the fee schedule of Vendor personnel who perform services under this Agreement in accordance with the provisions of this Agreement and Exhibit A. Total payment per term made un er this Agreement shall not exceed the amount of($3,000).Vendor shall not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. 4. TERMINATION 4.1. Written Notice. City or Vendor may terminate this Agreement at any time and for any reason by providing the other party with 30 days'written notice of termination.. 4.2 Non-at)i)roDriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal perio for any payments due hereunder, City will notify Vendor 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 have been appropriated. Vendor Services Agreement Page 1 of 12 OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX 4.3 Duties and Obliizations of the Parties.In the event that this Agreement is terminated prior to the Expiration Date, Ci shall pay Vendor for services actually rendered up to the effective date of termination and Vendors all continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination.Upon termination of this Agreement for any reason,Vendor shall provide City with copies of all completed or partially completed documents prepared under this Agreement.In flie,event Vendor has received access to City Information or data as a requirement to perform services hereunder,Vendor shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure: of Conflicts. Vendor hereby warrants to City that Vendor has made full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement. In the event at any conflicts of interest arise after the Effective Date of this Agreement, Vendor hereby agrees immediately to make full disclosure to City in writing. 5.2 Confidential Information.Vendor,for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by City("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of City. 5.3 Unauthorized Access.Vendor 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.Vendor shall notify City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised,in which event,Vendor shall,in good faith,use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means ani shall fully cooperate with City to protect such City Information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Vendor agrees tha City shall,until the expiration of three(3)years after final payment under this contract,or the final conch Sion of any audit commenced during the said three years,have access to and the right to examine at reasons le times any directly pertinent books,documents,papers and records,including, but not limited to,all elec onic records, of Vendor involving transactions relating to this Agreement at no additional cost to City. ndor agrees that City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable advance notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly un erstood and agreed that Vendor shall operate as an independent contractor as to all rights and privileges aid work perforined under this Agreement, and not as agent, representative or employee of City. Subjec to and in accordance with the conditions and provisions of this Agreement, Vendor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, consultants and subcontractors.Vendor acniowiedges that the doctrine of respondeat superior shall not apply as between City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, Vendors and subcontractors. Vendor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that City shall in no Vendor Services Agreement Page 2 of 12 way be considered a co-em Ioyer or a joint employer of Vendor or any officers,agents,servants,employees or subcontractor of Vendo . Neither Vendor,nor any officers,agents,servants,employees or subcontractor of Vendor shall be entitled to any employment benefits from City. Vendor 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 subcontractor. 8. LIABILITY AND INDEMNICATION. 8.1 LIABILITY- VENDOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS., PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY BIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMHSSION(S), MALFEASANCE OR 1ATENTIONAL MISCONDUCT OF VENDOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLO ES. 8.2 GENERA E INDEMNIFICATION-VEND ORHEREBYCOVENANTSANOAGREES TO INDEMNIFY,HOLD HARMLESS AND DEFEND CITY,ITS OFFICERS,AGENTS,SERVANTS AND EMPLOYEES,FR MAND AGAINSTANYAND ALL CLAIMS OR LAWSUITS OFANYKIND OR CHARACTER, WMEHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO VENDOR'S BUSHNESS AND ANY RESULTING LOST PRO ITS)AND/OR PERSONAL INJURY,INCLUDING DEATH, TO ANYAND ALL PERSONS,ARISLIV G O UT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF VENDOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 8.3 INTELLI CTUAL PROPERTY INDEMNIFICATION — Vendor agrees to defend, settle, or pay, at its own ost'and expense, any claim or action against City for infringement of any patent, copyright,trade mark, trade secret, or similar property right arising from City's use of the software and/or docume tction in accordance with this Agreement, it being understood that this agreement to defend, setle or pay shaII not apply if City modifies or misuses the software and/or documentation. So long a Vendor bears the cost and expense of payment for claims or actions against City pursuant to this sect on,Vendor shall have the right to conduct the defense of any such claim or action and all negotiatioi s for its settlement or compromise and to settle or compromise any such claim; however, City s all have the right to fully participate in any and all such settlement, negotiations, or lawsuit s necessary to protect City's interest, and City agrees to cooperate with Vendor in doing so.In the event City,for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against City for infringement arising under this Agreement,City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Vendor shall fully panic pate and cooperate with City in defense of such claim or action.City agrees to give Vendor timely written notice of any such claim or action,with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to indemnify City under this Agreement.If the software and/or documentation or any part thereof is held to infringe and the use thereof is enjoined or restrained or,if as a resu t of a settlement or compromise,such use is materially adversely restricted, Vendor shall, at its own xpense and as City's sole remedy, either: (a) procure for City the right to continue to use the softw re and/or documentation;or(b)modify the software and/or documentation to make it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the software and/or documentation; or (c) replace the software and/or documentation with eq ally suitable, compatible, and functionally equivalent non-infringing Vendor Services Agreement Page 3 of 12 software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Vendor terminate this Agreement,and refund all amounts paid to Vendor by City,subse luent to which termination City may seek any and all remedies available to City under law. 9. ASSIGNMENT AND SUBCONTRACTING. 9.1 Assi me it. Vendor shall not assign or subcontract any of its primary duties,obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment,the assignee s all execute a written agreement with City and Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement. Vendor and Assignee shall be jointly liable for a obligations of Vendor under this Agreement prior to the effective date of the assignment. 9.2 Subcontract. If City grants consent to a subcontract for primary duties,such subcontractor shall execute a written age ement with Vendor referencing this Agreement under which subcontractor shall agree to be bound by the duties and obligations of Vendor under this Agreement as such duties and obligations may apply.Vei idor shall provide City with a fully executed copy of any such subcontract. 10. INSURANCE. Insurance requirements are found in Exhibit A. 11. COMPLIANCE'WITH LAWS ORDINANCES RULES AND REGULATIONS. Vendor agrees th t in the performance of its obligations hereunder, it shall comply with all applicable federal,state an local laws, ordinances,rules and regulations and that any work it produces in connection with this Agr ement will also comply with all applicable federal, state and local laws, ordinances, rules and regu ations. If City notifies Vendor of any violation of such laws, ordinances,rules or regulations,Vendor sh immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Vendor, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor'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 VENDOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS, SUBCONTRACTORS OR SUCCESSORS IN INTEREST, VENDOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives,(2)delivered by electronic means with confirmation of the transmission,or(3)received by the other party by United States Mail,registered,return receipt requested, addressed as follows: To CITY: To VENDOR: Vendor Services Agreement Page 4 of 12 City of Fort Worth Attn:Dana Burghdoff,As istant City Manager D BA A era XVe.0 1 h Y)cd iwJ 200 Texas Street Z 15 g B eaw merd Difi veJ Fort Worth,TX 76102-63 4 Barr► Rni,),Q� LA 7o&r f, Facsimile: (817)392-865 Ph : aJL-6-3va -S5-7en With copy to Fort Worth ity Attorney's Office at same address 14. SOLICITATION OF EMPLOYEES. Neither City nor Vendor 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 o the person's employer.Notwithstanding the foregoing,this provision shall not apply to an employee of eitherparty who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENT POWERS. It is understood and agreed that by execution of this Agreement,City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of Cityor Vendor 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 City's or Vendor's respective right to insist up n appropriate performance or to assert any such right on any fixture occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas.If any action, whether real or asserted, at law or in equity,is brought pursuant to this Agreement,venue for such action shall lie instate courts loca ed in Tarrant'County,Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 18. SEVERABILIT . If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability f the remaining provisions shall not in any way be affected or impaired. 19. FORCE MA.JE City and Vendors all exercise their best efforts to meet their respective duties and obligations as set forth in this Agreemen,but shall not be held liable for any delay or omission in performance due to force majeure or other cat ses beyond their reasonable control, including, but not limited to: acts of the public enemy,fires, strike;, lockouts, natural disasters,wars, riots, material or labor restrictions by any governmental authority,at d/or any other similar causes. Vendor Services Agreement Page 5 of 12 20. HEADINGS NO CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement,and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each parry 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 including its. 22. AMENDMENTS MODIFICATIONS/EXTENSIONS. No amendment,modification, or extension of this Agreement shall be binding upon a party hereto unless set forth in a written instrument,which is executed by an authorized representative of each party. 23. , ENTIRETY OF AGREEMENT. This Agreement, including its Exhibit, contains the entire understanding and agreement between City and Vendor, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or -' en agreement is hereby declared null and void to the extent in conflict with any provision of 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. Vendor warrants t at its services will be of a high 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 Vendor's option, Vendor 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 City to Vendor for the nonconforming services. 26. DEMaGRATION NATIONALITY ACT. Vendor shall veri the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY CITY AND HOLD CITY HARM7.ESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THCS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES,SUBCONTRACTORS,AGENTS, OR LICENSEES. City, upon written Vendor Services Agreement Page 6 of 12 notice to Vendor, shall have the right to immediately terminate this Agreement for violations of this provision by Vendor. 27. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided under this Agreement(collectively,"Work Product"). Further,City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a"work-made-for-hire"within the meaning of the Copyright Act of 1976, as amended.If and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Vendor hereby expressly a ssigns to City all exclusive right,title and interest in and to the Work Product, and all copies thereof,and in and to the copyright,patent,trademark,trade secret,and all other proprietary rights therein, that City in ay have or obtain, without further consideration, free from any claim, lien for balance due,or rights of retention thereto on the part of City. 28. 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 ofthe entity.This Agreement and any amendment hereto, may be executed by any authorized representative of Vendor whose name,title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit B. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 29. CHANGE IN COMPANY NAME OR OWNERSHIP Vendor shall notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records.The president of Vendor or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director's resolution approving the action, or an executed merger or acquisition agreement.Failure to provide the specified documentation so may adversely impact future invoice payments. 30. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL Vendor unless a sole proprietor, acknowledges that in accordance with Chapter 2270 of the Texas Government Code, if Vendor has 10 or more full time-employees and the contract value is $100,000 or more,the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a writter.verification from the company that it: (1) does not boycott Israel; and(2)will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to ose terms in Section 808.001 of the Texas Government Code. By signing this contract, Vendor certifi s-that Vendor's signature provides written verification to the City that if Chapter 2270,Texas Government Code applies,Vendor: (1)does not boycott Israel; and(2)will not boycott Israel during the term of the contract. Vendor Services Agreement Page 7 of 12 IN WITNESS WIEREOF, the parties hereto have executed this Agreement in multiples this 0 day of A U LLS ,20 AV to be effective as of the date subscribed by the City's Assistant City Manager(`affective Date?'.). (signature page and exhibits follow) Vendor Services Agreement Page 8 of 12 ACCEPTED AND AGRri ED: CITY OF FORT WORT] VE OR: Dana BurahLm- Uana6urFhdofi cp 22.2020119;OB CDT By: Name: DanaB ghdoff By: ame: ftk 6hiXCeq Title: Assistant City Manager Title: C E p Date: September 22,2020 Date: l®• A VE-A— 90 XV APPROVAL RECO LADED: HA� ()gr By: Christopher 4arder(Sep 17,2020 E:56 CDT) Name: Christopher P.Harder Title: PE Direc for Water D part7ment d4U0an ATTEST: a� foRr�odd d Pvo o=d �"y APO*ono 0 00*� By: r 1V�(/ `` P��i1 nEXA5o90 Name: Mary J. Kayser Title: City Seer tary APPROVED AS TO FORM AND LEGALITY: CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, By:Mack(Sep 18,202015:09 CDT) including ensuring all performance and reporting Name: Douglas Black requirements. Title: Assistant City Attorney CONTRACT AUTHORIZATION: Kimberly Pool(Aug o2015s4CDT) M&C: under$10 K By. Name: Kimberly Pool DATE: Title: Administrative Services Coordinator 1295: Vendor Services Agreement OFFICIAL RECORD Page 9 of 12 CITY SECRETARY FT.WORTH, TX EXHIBIT A SCOPE OF SERVICES 1.1 Description: AeroWest International shall furnish all management, labor, supervision, equipment and materials, and transportation to provide service every 28 days, perform any necessary maintenance, and supply replacement of all existing deodorizer units presently installed. 1.2 All parts and tools required to install and or repair are brought to the location so all repairs are done at the time of service. If there are occasions that repairs are needed between services we can be reached via phone at 225-302-5570 or email info@aerowest.com. 1.3 Service begins at installation. Once the units are installed this constitutes the first service as the dispensers are filled and the unit is now operable. AeroWest services the units on a 28 day basis or 13 times a year. i EDIT B RIFICATION OF SIGNATURE AUTHORITY es� S-Crukes Itic, V BA 4.r nm-Hi Y1, Vendor hereby agrees to ovide City with independent audit basic financial statements, but also the fair presentation of the financia I statements of individual funds. Execution of this Signature Verification Form C Form")hereby certifies that the following individuals and/or positions have the uthority to legally bind Vendor and to execute any agreement, amendment or change order on behalf of Vendor. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Vendor. City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Vendor.Vendor will submit an updated Form within ten 10) business days'if there are any changes to the signatory authority. City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by Vendor. 1. Name: Position: Signature 2. Name: Position: Signature 3. Name: Position: Si Name: Signa e o Pre i ent/CEO Other Title: C F_D Date: (D AvnUsL20 a-D Vendor Services Agreement Exhibit B Page 11 of 12 Vendor Services Agreement Exhibit D Page 12 of 12