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HomeMy WebLinkAboutContract 45419 (2)GM% g' SHAW GUNICRACT PROFESSIONAL SERVICES AGREEMENT RECYCLING EDUCATION AND AD CAMPAIGN o MARCH o JUNE 2014 CLEAR MESSAGE COMMUNICATION, LLC, AKA IGNITE IT GROUP This PROFESSIONAL SERVICES AGREEMENT ("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, Parker, and Wise Counties, Texas and CLEAR MESSAGE COMMUNICATION, LLC AKA IGNITE IT GROUP (IIG) ("Consultant") acting by and through Shelly T. Kulesza, its duly authorized Director and Principal. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of providing the City of Fort Worth Code Compliance Department with professional services to develop and implement education/outreach campaigns to create awareness about the City's residential and commercial recycling programs, as well as their anti -littering campaign. Specifically, Consultant will: • Provide consultant services for a behavior modification study • Provide marketing services for the city's ongoing recycling, littering and sustainability education and outreach programs 2. TERM. This Agreement shall commence On March 27, 2014 and terminate on June 27, 2014 unless terminated earlier in accordance with the provisions of this Agreement. Articles 6 and 8 herein shall survive the term of this agreement. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed Fourteen Thousand, Seven Hundred Ninety Dollars ($14,790.00), billable at an hourly rate of Eighty Five ($85.00) per hour. The Contractor shall submit monthly payment invoices to the City. Invoices shall contain a detailed breakdown to include: services, tasks or deliverables to the City and date provided, the amount billed for each service, task or deliverable, and the total amount due for the billing period. Payment for services rendered shall be due within thirty (30) days of the uncontested performance of the particular services so ordered and receipt by City of Contractor's invoice for payment of same. In the event of a disputed or contested billing, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. No interest will accrue on any contested portion of the billing until mutually resolved. City will exercise reasonableness in contesting any billing or portion thereof. 4. TERMINATION. 4.1. Written Notice. The City or Consultant 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 -appropriation of Funds. FFICIAL RECORD 6`117 SECRETARY In the event no funds or insufficient funds are appropriated by tie City in any fiscal perm Professional Services Agreement - Recycling Education and Ad Campaign — March -June 2014 Clear Message Communication, LLC, aka Ignite It Group Page 1 of 7 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 shall 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 or consultant shall reimburse the City for services paid for but not actually rendered, up to the date of notice of termination. 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, 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. Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related 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 work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable 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 granted herein, and not as 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 omissions 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, employees, 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. Professional Services Agreement - Recycling Education and Ad Campaign — March -June 2014 Clear Message Communication, LLC, aka Ignite It Group Page 2 of 7 8. LIABILITY AND INDEMNIFICATION. 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 OM/SSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT 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 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. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250 000 Bodily injury per person $500 000 Bodily injury per person per occurrence $100 000 Property damage Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non -owned. (c) Worker's Compensation Statutory limits Employers liability $100,000 Each accident/occurrence Professional Services Agreement - Recycling Education and Ad Campaign — March -June 2014 Clear Message Communication, LLC, aka Ignite It Group Page 3 of 7 $100,000 Disease per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1 01 et seq. Tex. Rev Civ. Stat.) and minimum policy limits for Employers' Liability of $100 000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Errors & Omissions (Professional Liability): $1,000,000 Per Claim and Aggregate If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date to the contractual agreement. The certificate of insurance shall state that the coverage is claims -made and include the retroactive date. The insurance shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the services provides under the contractual agreement or for the warranty period, which ever is longer. An annual certificate of insurance submitted to the City shall evidence coverage. 10.2 Certificates. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. All applicable policies shall be endorsed to name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. The City reserves the right to make reasonable requests or revisions pertaining to the types and limits of that coverage. A minimum of thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City Ten (10) days notice shall be acceptable in the event of non- payment of premium. Such terms shall be endorsed onto Consultant's insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 11. COMPLIANCE WITH LAWS. ORDINANCES. RULES AND REGULATIONS. Consultant agrees to 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. 12. 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 Professional Services Agreement - Recycling Education and Ad Campaign — March -June 2014 Clear Message Communication, LLC, aka Ignite It Group Page 4 of 7 During the performance of this contract, Contractor shall not discriminate in its employment practices and shall comply with all applicable provisions of Chapter 17, Article III of the Code of the City of Fort Worth. Contractor agrees not to discriminate against any employee or applicant for employment because of because of age, race, color religion, sex, disability, national origin, sexual orientation transgender, gender identity or gender expression in any manner involving employment, including the recruitment of applicants for employment, advertising, hiring, layoff, recall, termination of employment, promotion, demotion, transfer, compensation, employment classification, training and selection for training or any other terms, conditions or privileges of employment 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 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: To CITY: To CONSULTANT: City of Fort Worth Code Compliance Department Attn: Kim Mote, Assistant Director 1000 Throckmorton Fort Worth TX 76102-6311 14. GOVERNMENTAL POWERS. Clear Message Communication/aka Ignite It Group Attn: Shelly Kulesza, Director 5501 LBJ Freeway, Suite 240 Dallas, TX 75240 It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 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's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 16. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity is brought on the basis 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. 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 (force majeure), 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 Professional Services Agreement - Recycling Education and Ad Campaign — March -June 2014 Clear Message Communication, LLC, aka Ignite It Group Page 5 of 7 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 and shall not be deemed a part 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 / MODIFICATIONS / EXTENSIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such 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. 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. The remainder of this page is left intentionally blank Professional Services Agreement - Recycling Education and Ad Campaign — March -June 2014 Clear Message Communication, LLC, aka Ignite It Group Page 6 of 7 SIGNATURE PAGE IN WITNESS WHEREOF, the parties hereto have executed this Agreement: CITY OF FORT WORTH: B Date: Charles W Daniels Assistant City Manager 03. APPROVED AS TO FORM AND LEGALITY: By: etil .g/L Arthur N Bashor ATTE T: By: Mary . �ayser City, Se'cretary By: CLEAR MESSAGE COMMUNICATIONS, LLC DBA IGNITE IT GROUP (IIG) VAist Shelly Director WITNESS: Signed: Print Name: OFFICIAL RECCCiiB ©flT SECRETARY rail'. MORTH, TX Professional Services Agreement - Recycling Education and Ad Campaign — March -June 2014 Clear Message Communication, LLC, aka Ignite It Group Page 7 of 7