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HomeMy WebLinkAboutContract 44529 (2)� STATC_ OF TEXAS COUNTY OF TARRANT § § § �. = � r i "; �: KNOWN ALL BY THESE PRESENTS: This Contract is entered into by and between the City of Fort Worth ("City"), a home-rule municipality located within Tarrant, Denton, Parker, and Wise Counties, Texas, acting through Charles Daniels, its duly authorized Assistant City Manager, and Open Mouth Communications, LLC, a Texas Limited Liability Company ("Contractor"), acting through Richard Myers, its duly authorized Managing Member. City and Contractor may be referred to herein individually as a Party, or collectively as the Parties. WITNESSETH: That for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1. SERVICES �� ,� ; ,, r� � � c�r � � � � F� � �s �� Contractor hereby agrees to perform as an independent contractor the services set forth in the Scope of Work attached hereto as Attachment "A". ARTICLE 2. COMPENSATION Section 1. Fee Schedule. Contractor shall be compensated in accordance with the Fee Schedule shown in Attachment "A". Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment "A". However the total fee paid by the City shall not exceed a total of three thousand 3 00�� and the Citv will not be liable for anv Contractor fees costs or other remur,eration in excess of this amount unless the City has signed and issued a formal amendment to this contract. The Contractor shall provide monthly invoices to the City. 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. Contractor shall receive no additional compensation for work delays or hindrances except when direct and unavoidable extra costs to the Contractor are caused by the City's gross negligence. t� � � ' :i Professienal Services Contract — Project Hope Website Open Mouth Communications, LLC � ..� �,e `.�l �. r �'• � � =1 �,. , Page 1 of 8 ARTICLE 3. TERM Unless terminated pursuant to the terms her.ein, this Agreement shall be for a term of one year, beginning upon the date of its execution or until the completion of work as specifiS�d in Attachment A, whichever comes first, and except for such duties as shall surviv� the expiration of this contract. ARTICLE 4. INDEPENDENT CONTRACTOR Contractor shall operate hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City. Contractor shall have exclusive control of and the exclusive right to control the details of its work to be performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondeat superior shall not apply as between City and Contractor, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Con�ractor. ARTICLE 5. PROFESSIONAL COMPETENCE Contractor shall perform all services consistent with the professional skill, care, and proficiency ordinarily provided by professionals perForming similar work in Texas under the same or similar circumstances. Contractar shall perform all services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. Work performed by Contractor shall comply in all aspects with all applicable local, state and federal laws and with all applicable rules and regulations promulgated by the local, state and national boards, bureaus, and agencies. Acceptance of work by the City or another entity shall not constitute or be deemed to be a release of the responsibility and liability of Contractor or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its services performed hereunder. ARTICLE 6. INTELLECTUAL PROPERTY Section 1. Rights in data. The City shall have unlimited rights in all data delivered under this contract, and in all data first produced in the performance of this contract. Section 2. Intellectual property rights and ownership. AI� work product developed by Contractor under this contract shall be the sole property of the City and the City shall have unlimited rights in such work product. All work Professional Services Contract — Project Hope Website Page 2 of 8 Open Mouth Communications, LLC product developed by Contractor under this contract shall be considered "work for hire" and rights, title, and interests to all intellectual property shall vest in the City. Contactor affirmatively, by executing this contract, disclaims all such intellectual property interests in favor of the City. In the event that any rights, title, or interest shall by operation of law or otherwise fail to vest in the City or become void or voidable, Contractor shall a) transfer all rights, title, and interest to intellectual property to the City; or alternatively and at the discretion of the City the Contractor shall b) grant an unlimited and exclusive�license for publication,.sale, reproduction, or use by the City and its authorized sublicensees of all intellectual property developed under this contract. Contractor agrees to timely execute any documents or take any other actions as may reasonably be necessary, or as the State may r��sonably request, to perfect the State's ownership, license, or other rights to any work product. Contracfior shall not use, sell, transfer, or authorize a third party to use any work product, copyrights, trademarks, or other intellectual property (or derivatives thereofl of the work product developed under this contract without the express written consent of the City. Contractor shall not infringe on the copyrights of any person, including third parties, in performance of this contract. ARTICLE 7. INDEMNIFICATION Section 1. General Indemnification. CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS, RELEASE, REIMBURSE, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLfJYEES AGAWST ANY AND ALL CLAIMS, ACTIONS, SUITS, DEMANDS, PRE��IiVGS, COSTS, DAMAGES, AND �IABI�ITIES, INCLUDING ATTORNEYS FEES AND COSTS OF INVESTIGATION AND LITIGATION ARISING OUT OF OR RESULTING FROM ANY ACTS OR OMISSIONS OF CONTRACTOR, ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, VENDORS, AND SUPPLIERS IN THE EXECUTION OR PERFORMANCE OF THIS COlVTRACT. THIS INDEMNIFICATION INCLUDES BUT IS NOT LIMITED TO THE FOLLOWING: a. SOLE OR JOINT NEGLIGENCE b. ANY INTENTIONA� TORT, FRAUD, MALACE, MALFEASANCE, OR CRIME c. VIOLATION OF A LAiN, REGULATION, OR CONSTITUTIONAL RIGHT d. BREACH OF ANY DUTY TRIGGERING STRICT LIABILITY e. �'HE INFRINGEMENT OF ANY TANGIBLE, INTANGIBLE, OR INTELLECTUAL PROPERTY INTEREST OF ANY PERSON f. FAILURE TO PAY A DEBT INCURRED PARTIALLY OR WHOLLY IN PERFORMANCE OF THIS CONTRACT Professional Services Contract — Project Hope Website Page 3 of 8 Open Mouth Communications, LLC g. ANY CLAIM FOR DAMAGE TO A PERSON'S REAL OR PERSONA� �ROPERTY INTEREST, OR PERSONAL INJURY, AND/OR DEATH. FOR THE PURPOSES OF THIS ARTICLE, DAMAGES SHALL BE CONSTRUED BROADLY TO INCLUDE CURRENT AND FUTURE DAMAGES, AND DIRECT AND INDIRECT DAMAGES SUCH AS PUNATIVE, EXEMPLARY, AND CONSEQUENTIAL DAMAGES. Section 2. The obligations of the Contractor under this Article shall include, but not be limited to, the burden and expense of defending all claims, suits and administrative proceedings (with counsel reasonably approved by the City), even if such claims, suits or proceedings are groundless, false, or fraudulent, and conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against such indemnified persons. Upon learning of a claim, lawsuit, or other liability which Contractor is required hereunder to indemnify, City shall provide Contractor with reasonable timely notice of same. The obligations of the Contractor under this paragraph shall survive the expiration or termination of this Agreement and the discharge of all other obligations owed by the parties to each other hereunder. ARTIC�E 8. LICENSES AND PERMITS Contractor certifies and warrants that on the day contract and during the duration of the contract current, valid, and appropriate federal, state, and for the provision of services under this contract. any work is to commence it shall have local licenses and maintain and permits under this all of the necessary Contractor also certifies that if it uses any subcontractor in the performance of this contract, that such subcontractor shall have and maintain all of the current, valid, and appropriate federal, state, and local licenses and permits necessary for the provision of servic�:s under this contract. ARTICLE 9. TRANSFER OR ASSIGNMENT City and Contractor each bind themselves, and fheir lawful successors and assigns, to this Agreement. Contractor has been engaged as a consequence of Contractor's specific and unique skills; Assignment will only be granted under unusual circumstances and at the sole discretion of the City. Contractor, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this Agreement without prior written consent of the City. Professional Services Contract — Project Hope Website Page 4 of 8 Open I�louth Communications, LLC ARTICLE 10. RIGHT TO AUDIT (a) Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Contractor involving transactions relating to this Agreement. Contractor agrees that the City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Contractor reasonable advance notice of intended audits. (b) Contractor further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontracting contractor agrees that the City shall, until the expiration of three (3) years after final p�yment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor, involving transactions to the subcontract, and further, that City shall have access during normal working h�ur� 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 article. City shall give Contractor and any subcontractor reasonable advance notice of intended audit. (c) Contractor and subcontractors agree to photocopy such documents as may be requested by the City. The City agrees to reimburse Contractor for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is perFormed. ARTICLE 11. OBSERVE AND COMPLY Contractor shall at all times observe and comply with all federal, state, and local laws and regulations and with all City ordinances and regulations which in any way affect this Agreement and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. ARTICLE 12. DEFAULT If Contractor fails to begin work or to complete work within the time specified the City shall have the right to take charge of and complete the work in such a manner as it deems appropriate. ARTICLE 13. TERMINATION City may terminate this contract without cause by giving written notice to Contractor. If the City terminates this contract under this provision, City shall pay Contractor for all services delivered and accepted. Termination shall be without prejudice to any other remedy the City may have. Professional Services Contract - Project Hope Website Page 5 of 8 Open Mouth Communications, LLC ARTICLE 14. NOTICES Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand-delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: If to the City: City of Fort Worth . Scott Hanlan, Assistant Director Code Compliance Department 818 Missouri Ave. Fort Worth, Texas 76104 If to the Contractor: Drew Myers Open Mouth Communications, LLC 2509 Honeysuckle Ave. Fort Worth, TX 76111 ARTIC�E 15. NO THIRD-PARTY BENEFICIARIES This Agreement shall inure only to the benefit of the parties hereto and third persons not privy hereto shall not, in any form or manner, be considered a third party beneficiary of this Agreement. Each party hereto shall be solely responsible for the fulfillment of its own contracts or commitments. ARTICLE 16. ENTIRETY This contract, the contract documents, and any other documents incorporated by reference herein are binding upon the parties and contain all the terms and conditions agreed to by the City and Contractor, and no other contracts, oral or otherwise, regarding the subject matter of this contract or any part thereof shall have any validity or bind any of the parties hereto. The Remainder of This Page is Intentionally Left Blank Professional Services Contract — Project Hope Website Page 6 of 8 Open Mouth Communications, LLC ATTACHMENT A. SCOPE OF WORK AND FEE SCHEDULE Scope of Work: Contractor shall create a custom Adobe Muse web page accessible from the URL domain names forworthpetproiect.com and fortworthpetproiect.orq. The initial design and creation will establish a web page to include the following compc���nts: 1. Fort Worth Pet Project logo display 2. Introductory narrative describing Fort Worth Pet Project purpose and mission 3. A list of collaborating agencies that comprise Fort Worth Pet Project with brief descriptions of each entity 4. Links to all partner web pages The contract calls for only the creation and design of an accessible web page. Site updates and/or maintenance work are included. Contractor shall provide City with full access to completed site which will allow for City to update and maintain the site. The contract deliverables described above are to be completed by June 29, 2013. Fee Schedule: Upon completion of the scope of work described above, City.will pay Contractor the total fee for services of $3,000.00. The Remainder of This Page is Intentionally Left Blank Professional Services Contract - Project Hope Website Page 7 of 8 Open Mouth Communications, LLC IN WITNESS THEREOF, the parties hereto have made and executed this Agre�:ment in multiple originals on the dates written below, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH: OPEN MOUTH COMMUNICATIONS, LLC ' ard Myers Managing Member RECCIMMENDED: ! ' % • `' � � Scott Hanlan \ Assistant Director APPROVED AS TO FORM AND LEGALITY: ���� � Arthu� N. Bashor Assistant City Attorney ATTEST: Mary" J. City Se � - --� � ,,....... ,...�_ �y`��f�.�i � ��eapooa F�p� Qtlo � � ess Seal: � � ; j. •, d PI7'1( S��E��`�fc�Fr��' � Professional Services Contract — Project Hope Website Pa e o� � Open i��louth Communications, LLC �• ���'���� �'�'s� Assistant City Manager Date Signed: b�. D�'. /„�"