HomeMy WebLinkAboutContract 43766 CITY SECKTARY0 51
CONTRACT NOV
CONTRACT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF FORT WORTH AND MURRAY CREATIVE BRAND
MANAGEMENT
This Professional Services Contract ("Contract") is made and ent Z-
eyed into on day of
Cf I4F/h 84F k 2012, ("Effective "Date") by and between the City of Mort Forth, Texas, a
home-rule municipal corporation of the State of Texas ("City"), acting by and through Susan Alanis,
its duly authorized Assistant City Manager,and Gerald Repola Murray d/b/a Murray Creative Brand
Y
Management ("Consultant").
WHEREAS, during the next three years, the City, through its Parks and Community
Services Department,will use grant funds from the Wallace Foundation to initiate a citywide system
to support and strengthen the afterschool and summer programming in the community
("Initiative");
WHEREAS, the City issued a Request for Proposals to solicit bids for the creation of a
compelling and memorable organizational name, logo, and taghne for use with the Initiative
("Brand"); and
WHEREAS, the City selected the Consultant and wishes to engage Consultant to provide
such services.
NOW,THEREFORE, for and in consideration of the mutual agreement stated herein, the
parties agree as follows:
1.
Scope of Services
1.1 Consultant agrees to perform, in accordance with the highest professional industry
standards, the professional consulting services set forth in Exhibit , which is attached hereto and
incorporated herein for all purposes ("Services").
1.2 Consultant shall perform all Services and will furnish all supplies, materials, and
equipment as necessary for developing conceptual and final designs of the Brand and for providing
the conceptual and final design deliverables.
OFFICIAL RECORD
Contract for Professional Services CITY SECRETARY
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Cj5 . 05 IN
2.
Compensation; Payment Schedule
2.1 City shall pay the Consultant F.OUR THOUSAND,FIVE HUNDRED
DOLLARS AND INTO CENTS (L4,500.00) for all Services performed hereunder, which
shall constitute full compensation for any and all costs associated with this Contract.
2.2 Payment shall be made in one lump payment within thirty (3D) calendar days
after the City's approval of the final design of the Brand.
2.3 It is understood that this Contract contemplates the provision of full and
complete consulting services for this project as outlined in Exhibit A for the fee described in
Section 2.1. However, should the City desire additional services not included in Exhibit A,
the Consultant shall be compensated at an hourly rate of$110.00 per hour.
3.
Term and Termination
3.1 Term. Unless terminated earlier pursuant to this the terms of this Contract, this
Contract shall be effective from the Effective Date and shall extend until payment has been made to
Consultant pursuant to Section 2.
3.2 Termination for Convenience. The City may terminate this Contract for its
convenience upon ten (10) days written notice to Consultant. Upon receipt of such notice,
Consultant shall immediately discontinue all services and work and the placing of all orders or the
entering into Contracts for all supplies, assistance, facilities and materials in connection with the
performance of this Contract and shall proceed to cancel promptly all existing contracts insofar as
they are chargeable to this Contract. If the City terminates this Contract under this Section 3.2, the
City shall pay Consultant for services actually performed in accordance herewith prior to such
termination, less such payments as have been previously made, in accordance with a final statement
submitted by Consultant documenting the performance of such work. (See also Exhibit A).
3.3 Termination for Cause. The City may terminate this Contract for cause in the event
Consultant fails to perform in accordance with the requirements contained herein. In such event,
City shall give Consultant written notice of Consultant's failure to perform, giving Consultant
fourteen (14) calendar days to come into compliance with the Contract requirements. If Consultant
fails to come into compliance with this Contract, City shall notify Consultant, in writing, and this
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Contract shall be terminated as of the date of such notification. In such event, Consultant shall not
be entitled to any compensation..
3.4 In the event no funds or insufficient funds are appropriated and budgeted by the
City in any fiscal period for any payments due hereunder, City will notify Consultant of such
occurrence and this Contract shall terminate on the last day of the fiscal period for which
appropriations were made 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 and
budgeted. City has informed Consultant that, concurrently with approval of this Contract, City will
appropriate and budget 100% of the funds specified in this Contract, so that all funds will be
appropriated and budgeted prior to the commencement date of this Contract. This notification shall
not otherwise abrogate the City's right to terminate for non-appropriation of funds or to make
payment in accordance with Section 2 herein.
3.5 Upon termination of this Contract for any reason, Consultant shall provide the City
with copies of all completed or partially completed documents prepared under this Contract. All
rights to the Work Product, including, but not limited to, all intellectual property rights, shall
become the sole property of the City; consultant shall retain no rights, including, but not limited to,
intellectual property rights,in the Work Products produced under this Contract.
3.6 Consultant mav, for any reason, terminate this contract upon thirty (30) days written
notice to the City. The Consultant will provide the City with copies of all completed or partially
completed documents prepared under this Contract. All rights to the Work Product, including, but
not limited to, all intellectual property rights, shall become the sole property of the City; consultant
shall retain no rights,including, but not limited to, intellectual property rights,in the Work Products
produced under this Contract.
4.
Ownership and Intellectual Property
4.1 City shall be the sole and exclusive owner of all work produced in con)unction with
the Services provided under this Contract,including, but not limited to, all preliminary designs, final
designs, documents, and/or drawings that constitute or are components of the work product
(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 the City from the date of conception, creation or
fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each
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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, Consultant hereby expressly assigns, sells, and transfers 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 the City may have or
obtain, without further consideration, free from any claim, lien for balance due, or rights of
retention thereto on the part of the City. Consultant shall have no copyright or other intellectual
property interest in the work Product.
4.2 Consultant hereby acknowledges the rights of attribution and integrity conferred by
Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future)
Titled "Visual Artists Rights Act," and any other right of the same nature granted by U.S. federal,
state, or foreign laws, and of his/her own free act hereby waives such rights with respect to any and
all uses of the work Product by City pursuant to this Contract.
5.
LIABILITY, INDEMNIFICAITON,AND RELEASE
5.1 GENERAL INDEMNIFICATION. CONSULTANT SMALL BE LIABLE
FOR AND SHALL INDEMNIFY, DEFEND, AND HOLD THE CITY AND ITS
OFFICERS, REPRESENTATIVES, AGENTS, AND EMPLOYEES HARMLESS FOR
ANY LOSS, DAMAGE, LIABILITY OR EXPENSE FOR DAMAGES, AND DAMAGES
TO PROPERTY AND INJURIES, INCLUDING, BUT NOT LIMITER TO, DEATH,
TO ANY PERSON, INCLUDING, BUT NOT LIMITED TO, OFFICERS, AGENTS, OR
EMPLOYEES of CONSULTANT OR SUBCONTRACTORS, WHICH MAY ARISE
OUT OF ANY ACT, ERROR., OMISSION, OR INTENTIONAL MISCONDUCT IN
THE PERFORMANCE OF CONSULTANT'S PROFESSIONAL SERVICES,
CONSULTANT SHALL DEFEND, AT ITS OWN EXPENSE, ANY SUITS OR OTHER
PROCEEDINGS BROUGHT AGAINST THE CITY, ITS OFFICERS, AGENTS AND
EMPLOYEES, OR ANY OF THEM, RESULTING FROM SUCH ACT, ERROR,
OMISSION, OR INTENTIONAL MISCONDUCT; AND SHALL PAY ALL EXPENSES
AND SATISFY ALL JUDGMENTS WHICH MAY BE INCURRED BY OR RENDERED
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AGAINST THEM OR ANY OF THEM IN CONNECTION THEREWITH
RESULTING FROM SUCH ACT, ERROR OR OMISSION.
5.2 INTELLECTUAL PROPERTY INDEMNIFICATION. Consultant agrees to
assume full responsibility for complying with all State and Federal Intellectual Property Laws and
any other regulations, including, but not limited to, the assumption of any and all responsibilities for
paying royalties that are due for the use of other third-party intellectual property works by
Consultant. City expressly assumes no obligations, implied or otherwise, regarding payment or
collection of any such fees or financial obligations. City specifically does not authorize, permit, or
condone the reproduction or use of any intellectual property by Consultant without the appropriate
licenses or permission being secured by Consultant in advance. IT IS FURTHER AGREED
THAT CONSULTANT SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD
HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION,
INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY
MAY BE SUBJEC'T'ED ARISING OUT OF CITY'S USE OR POSSESSION OF THE
BRAND BY REASON OF AN ALLEGED OR ACTUAL INTELLECTUAL PROPERTY
VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR
ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing
and all such licensing shall be the exclusive obligation of Consultant.
5.3 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR
AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM,
CONSULTANT, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR
PROCEEDING, AT CONSULTANT'S EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO CITY.
5.4 IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW
OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR
ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS
SECTION, SUCH LEGAL LIMITATIONS ARE MARE A PART OF THE
INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE
INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO
BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF
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SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION
OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT.
5.5 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.
5.6 In addition to the indemnification requirement above, Consultant hereby releases the
City from any liability for injury or property damage incurred during or after this Contract, unless
such injury or property damage was the result of intentional misconduct committed by an employee
of the City. Consultant shall not permit any employee, officer, and agents of the Consultant or any
employees, officers or agents of any subcontractor to perform any activity under this Contract
without first executing a release containing such provisions.
5.7 This section shall survive the expiration or termination of this Agreement.
6.
Independent Contractor
Consultant shall perform all work and services hereunder as an independent contractor and
not as an officer, agent or employee of the City. Consultant shall have exclusive control of, and the
exclusive right to control, the details of the work performed hereunder and all persons performing
same and shall be solely responsible for the acts and omissions of its officers, agents, employees and
subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between
the City and the Consultant, its officers, agents, employees and subcontractors; and the doctrine of
respondent superior shall have no application as between the City and the Consultant. It is further
understood that the City shall in no way be considered a Co-employer or a joint employer of
Consultant, or any officers, agents, servants, employees or subcontractors of Consultant. Neither
Consultant, nor any of its officers, agents, servants, employees or subcontractors 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, its officers, agents, servants, employees or
subcontractors.
7.
Disclosure of Conflicts; Confidentiality
7.1 Consultant warrants to the City that it has made full disclosure in uniting of any
existing or potential conflicts of interest related to the services to be performed hereunder.
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Consultant further warrants that it will make prompt disclosure in writing of any conflicts of interest
that develop subsequent to the signing of this Contract.
7.2 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.
8.
Right to Audit
8.1 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 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
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.
8.2 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 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 at no additional cost to the City, 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 advance notice of intended audits.
9.
Prohibition of Assignment
Neither party hereto shall assign, sublet or transfer its interest herein without the prior
written consent of the other party, and any attempted assignment, sublease or transfer of all or any
part hereof without such prior written consent shall be void.
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10.
Notices
Notices required pursuant to the provisions of this Contract 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 THE CITY: To CONSULTANT:
City of Fort worth Gerald Repola Murray
Attn: Sheri Endsley d/b/a Murray Creative Brand Management
4200 South Freeway, Suite 2200 Attn:Jeff Murray
Fort worth,TX 76115 2101 Fifth Avenue
Fax: 817.392.5736 Fort worth,TX 76110
Copy to:
City of Fort worth
Office of the City Attorney
Attn: City Attorney
1000 Throckmorton Street,Third Floor
Fort worth,Texas 76102
11.
Insurance
11.1 Consultant shall provide the City with certificate(s) of insurance documenting
policies of the fallowing minimum coverage limits that are to be in effect prior to commencement of
any work pursuant to this Agreement.
11.2 Professional Liability insurance shall be maintained to protect against liability or
financial loss, should an error or omission occur in the performance of services under this
agreement. The minimum limit of insurance required is $500,000 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 of 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
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the contractual agreement and for two (2) years following completion of the service p rovided under
this agreement. An annual certificate of insurance submitted to the City shall evidence coverage.
11.3 It is the intent for this policy to provide coverage for trademark,copyright,and other
applicable intellectual property infringement. if coverage is not extended under the Professional
Liability insurance policy, a separate Commercial General Liability or other liability policy shall be
obtained with a minimum limit of$500,000 to comply with this requirement. Such policy does not
replace,but would be in addition to the Professional Liability insurance policy,
12.
Nondiscrimination
As a condition of this Contract, Consultant covenants that it will take all necessary actions to
ensure that in connection with any work under this Contract, Consultant, its associates and
subcontractors, will not discriminate in the treatment or employment of any individual or groups of
individuals on the grounds of race, color, religion, national origin, age, sex or physical handicap
unrelated to job performance, either directly, indirectly or through contractual or other
arrangements.
13.
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.
14.
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
restrictions by any governmental authority, transportation problems and/or any other similar causes.
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15.
Choice of Law;Venue
15.1 This contract shall be governed by and construed in accordance with the internal law
of the State of Texas.
15.2 Should any action, whether real or asserted, at law or in equity,arise out of the terms
of this Contract, venue for said action shall be exclusively in the District or Federal Courts in Fort
Worth,Tarrant County,Texas.
16.
Entirety of Agreement
This Agreement 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.
17.
Compliance with Laws, ordinances, Rules, and Regulations
Consultant agrees to comply with all 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. Consultant also
agrees to abide by all applicable terms of the City's Grant Agreement with the Wallace Foundation,
which shall be provided to the Consultant upon request.
18.
Licenses and Permits
Consultant shall, at its sole expense, obtain and keep in effect all licenses and permits
necessary for it to carry out its duties and obligations hereunder.
19.
Governmental Powers
It is understood and agreed that by execution of this Contract, the City does not waive or
surrender any of its governmental powers.
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20«
No Waiver
The failure of the City or Consultant to insist upon the performance of any term or
provision of this Contract 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.
21.
Headings Not Controlling
Headings and titles used in this Contract are for reference purposes only and shall not he
deemed a part of this Contract.
IN'FITNESS EREOF,the parties hereto have executed this Contract on the Effective Date.
CITY OF FORT WORTH: GE REPO MURRAY
d/b/a MURRAY CREATIVE
BRAND MANAGEMENT
3 . y:
r
usan Alanis G raid Repola Murray
Assistant City Manager Owner
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City Secretary
APPROVED AS TO FORM AND LEGALITY:
By:
Tyler F.Wallach
Assistant City Attorney No M&C REQUIRm
Contract for Professional services OFFICIAL RECORD
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CITY SECRETARY
F'. WORTH, TIC
EXHIBIT A
SERVICES
A. Conceptual Design Review Cycles:
1. Conceptual Design Deliverables: The Consultant will develop at least six (G) concepts for
the name, logo, and tag line (total of at eighteen (18) concepts) of the Brand for the
Initiative.
a. The conceptual design must meet the following criteria:
i. Successfully represent the vision of the organization and the Initiative;
ii. Evoke the concept of connecting local afterschool programs and
resources;
iii. Be professional with a touch of whimsy;
iv. Be respectful of the youth;
v. Not cause confusion with Fort Worth Independent School District's
afterschool program;
vi. Be scalable to include Tarrant County at a later date; and
vu. May contain the work "afterschool."
2. Review Cvcles:
a. The conceptual design deliverables must be submitted to the City for approval
on or before Friday, September 28,2012.
b. The Consultant and City shall, at a minimum, review the conceptual designs at
least two (2) times.
c. During or after the first meeting to review the conceptual designs, the City shall
notify the Consultant of its approval or disapproval of the conceptual designs.
d. The City reserves the right to request and require revisions to the conceptual
design(s) as the City deems necessary in its sole discretion.
e. Consultant shall have seven (7) calendar days from the date the City informed
the Consultant of the revision(s) to present any revised conceptual design(s) in
conformance with the City's requirements.
f At the second meeting, the City shall notify the Consultant of its approval or
disapproval of the conceptual designs
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i. If the City approves a conceptual design, then Consultant shall proceed
to the final design phase of this Contract. Any requested revisions shall
be incorporated into the final design of the brand.
ii. If the City disapproves of the conceptual designs, this Contract may be
terminated at the City sole discretion, with payment for work performed
up through the date of termination. (See Section 3.2)
B. Final Design/ Deliverable Format:
1. Final Design Deliverables.
a. If City approves the Consultant's conceptual design and authorized the
Consultant to proceed to the final design phase of this Contract, then the
Consultant shall submit the following deliverables to the City on or before
Friday,October 12,2012.
i. Format of Deliverable: Final design deliverables shall consist of design
illustrations of the Brand in color and black and white in . peg, .tif, .eps,
and other common graphic formats.
b. within two (2) days of the City's receipt of the Consultant's submission of the
final design, the City shall notify the Consultant of its approval, or disapproval,
of such submission and of each revision to be made. City may require the
Consultant to make such revisions to the final design as the City deems in its sole
discretion.
c. If the final design or any required revision is disapproved by City, Consultant
shall have five (5) days to resubmit the final design in conformance with the
City's requirements.
d. If resubmitted materials are not approved by the City, this Contract may be
terminated at the City's sole discretion, with payment for work performed up
through the date of termination. (See Section 3.2)
C. Development Tools: No proprietary development tools may be used to create the
deliverables under this Contract.
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