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HomeMy WebLinkAboutContract 45879 CITY SECCkTAW CONTRACT No. 4;� �'7c PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into on this --L-Z-,N' day of :- ,2014("Effective Date")by and between the CITY OF FORT WORTH ("City"), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and Frank W. Neal &Assoc., Inc. ("Consultant") a Texas for profit corporation, acting by and through Frank W. Neal, its duly authorized Director/Chairman, each individually referred to as a "party" and collectively referred to as the "parties." The City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf, The Contract Manager shall act through its designated Public Art collection manager. CONTRACT DOCUMENTS: The Contract documents shall include the following_ 1. This Agreement for Professional Services 2. Exhibit A— Stamped Drawing S 1.4-Pipe Support Detail submitted by Martin/Martin Consulting Engineers Exhibit A is attached hereto are incorporated herein and made a part of this Agreement for all purposes. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with engineering review services related to the City's public art program, including,but not limited to,the review of an installation of a pipe support and associated elements for a future winch system for an artwork titled Intimate Apparel & Pearl Earrings located in the Houston Street Lobby of the Fort Worth Convention Center located at 1200 Houston Street, Fort Worth, 76102. Consultant shall use the stamped engineer drawings by Martin/Martin Consulting Engineers, which is attached as Exhibit A, and review the actual installation of a pipe support and associated elements. Consultant shall render a written report as to whether the actual installation was completed pursuant to Exhibit A. In order to complete the review of the installation, Consultant will be available on call beginning August 23, 2014, through August 30, 2014, to review the installation upon completion. City will contact Consultant to make arrangements for Consultant to review the installation upon completion of the installation process. Consultant will be available within a reasonable time, determined at the sole discretion of the City, to come to the 1200 Houston Street location to review the installation. The City's Contracts Manager will coordinate with the Contractor access to the location to review the installation. After reviewing the installation, Consultant shall render a written report stating whether the installation was completed pursuant to Exhibit A. After the review of the installation or after the review of the written report by the City, Contractor shall be available at a time mutually agreeable between the City and Contractor to discuss the written report with City staff,if necessary. 2. TERM. M MThis Agreement shall commence upon the Effective Date and shalt continue in full force and -< effect until services are completed ("Term"), unless terminated earlier in accordance with the provisions M of this Agreement. c av ® Professional services Agreement Frank W.Neal&Assoc„Inc. I f OFFICIAL RECORD Execution Copy 8122114 CITY SECRETARY FT. WORTH,TX 3. COMPENSATION. The City shall pay Consultant hourly, billed in thirty (30) minute increments, for services rendered under this Agreement in an amount not to exceed NINE UUNDRED DOLLARS AND NO CENTS ($900.00) based on the consultant's hourly rates of ONE HUNDRED EIGHTY DOLLARS AND NO CENTS ($180.00) in accordance with the provisions of this Agreement. 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. Consultant shall invoice City upon completion of services, and City will pay invoice within a reasonable time upon receipt. 4. TERMINATION. 4.1. Convenience. 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. 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 Breach. Subject to Section 26 herein, either party may terminate this Agreement for breach of duty,obligation or warranty upon exhaustion of all remedies set forth in Section 26. 4.4 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the expiration date of this Agreement, 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. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. 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. Professional Services Agreement Frank W.Neal&Assoc.,Inc. 2 of I I Execution Copy 8/22/14 5.2 Confidential Information. Consultant, for itself and its officers, agents and employees, 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. 5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise comlpt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City infonnation has been compromised or is believed to have been compromised, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. 6.1 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. 6.2 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 expiration of three(3)years after final payment of the subcontract, 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 such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to at] 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 and work performed under this agreement, 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. 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 officers, agents, servants, employees 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. Professional Services Agreement Frank W.Neal&Assoc-htc. 3 of t t Execution Copy 3(22114 8. LIABILITY AND INDEMNIFICATION, 8.1 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. 8.2 INDEMNIFICATION-CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS 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 PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, 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 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 obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Contractor 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 for Contractor. (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Professional Liability $2,000,000 Each Occurrence $1,000,000 Aggregate Professional Services Agreement Frank W.Neal&Assoc.,Inc. 4 of t l Execution Copy 8122;14 l 0.3. General Requirements. (a) The commercial general liability and professional liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents,and volunteers in respect to the contracted services. (b) 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. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throekmorton,Fort Worth,Texas 76102,with copies to the City Attorney at the same address. (c) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of City's Risk Management. If the rating is below that required, written approval of City's Risk Management is required. (d) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (e) Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to the City prior to Contractor proceeding with any work pursuant to this Agreement. 11, 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. 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. 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: Professional Services Agreement Frank W.Neal&Assoc..Inc. 5 of I 1 Execution Copy 8/22/14 City of Fort Worth Frank W.Neal&Assoc.,Inc. Attn: Assistant City Manager Attn: Frank W.Neal 1000 Throckmorton 1015 W.Broadway Avenue Fort Worth,TX 76102-6311 Fort Worth,TX 76104 Facsimile: (817)392-8654 (817)332-1944 With Copy to the City Attorney At same address 14. SOLICITATION OF EMPLOYEES. 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. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. 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. 16. 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. 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 in state courts located in Tan-ant County, Texas or the United States District Coma for the Northern District of Texas,Fort Worth Division, 18. 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 anyway be affected or impaired. 19. 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. Professional Services Agreement Frank W.Neal&Assoc.,Inc. 6 of I 1 Execution Copy 8/22/14 20. 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. 21. 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. 22. 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. 23. 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. 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. INFORMAL DISPUTE RESOLUTION. Except in the event of tennination pursuant to Section 4.2, if either City or Consultant has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement,the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings,or other reasonable means to resolve any claim,dispute,breach or other matter in question that may Professional Services Agreement Frank W.Neal&Assoc..Inc- 7 of t I Execution Copy 8122;14 arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty(60) days of the date of receipt of the notice of the dispute,then the parties may submit the matter to non-binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect.The mediator shall be agreed to by the parties.Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation, If the parties cannot resolve the dispute through mediation,then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process,the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein,apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 27. 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. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. ((�� IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this 7 2 ly of ,20 CITY OF FORT WORTH: Frank W.Neal&Assoc.,Inc. B B �AA-"'L V), By. N.w�..�. Y� Fernando Costa Frank W.Neal Assistant City Manager Principal Engineer Date: 14 Date: 6— -2,Z l y� ATT ST: F 10 0 Mary J.Kayser U S° City Secretary $ $0 0 0 CONTRACT AUTHORIZATION: '000 Do M&C:NA ��S APPROVED AS O FO AND LEGALITY: By: Jessica S n sva g P4 Assistant ty Attorney Proressional Services Agreement Frank W.Neat&Assoc„Inc, Execution Copy 8J22.114 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX EXHIBIT A o`o my H ,bi 1 J �m�hqr O C Z &` 1 ��"'O[y�c,� •p � � � ,t � f _ � (per l z Fn Sz FORT WORTH CONVENTION , CENTER ART HOIST _ t� Enter Addfm FAm Professional Services Agreement Frank W.Neal&Assoc.,Fnc. 11 of 11 Paecution Copy 8122;14