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Personal Services Contract-5100-Award/Ordinance/Pricing STATE OF TEXAS § COUNTY OF DENTON § INDEPENDENT CONTRACTOR AGREEMENT FOR PERSONAL SERVICES I. WHEREAS, the City of Denton wishes to provide the services of Gerald Hedges (hereinafter referred to as “Contractor”) at PO Box 304, Aubrey, TX 76227 to its citizens for the purpose of Gate Lockup at Service Center services for the Facilities Department. Subject to the terms and conditions of this Agreement, the City hereby engages the (Gerald Hedges) as an independent contractor to perform services set forth herein, and the Contractor hereby accepts such engagement. II. WHEREAS, Contractor is specially skilled and qualified to provide these services and desires to provide same under the terms and conditions set forth below. The Contractor’s duties, term of engagement, compensation and provisions for payment thereof shall be as set for in the estimate provided to the City by the Contractor and which is attached as Exhibit A., which may be amended in writing from time to time, or supplemented with subsequent estimates for services to be rendered by the Contractor and agreed to by the City, and which collectively are hereby incorporated by reference. III. WHEREAS, City hereby contracts with Contractor to provide name services for its citizens and any others qualified to receive these services, the City of Denton hereby contracts with the Contractor to provide approved name services. IV. The parties have conducted negotiations and as a result of these negotiations agree that $24.00 per hour is a just and reasonable fee for the performance or the services which are the subject of this contract. The fee is to be paid to contractor as services are rendered and invoiced per standard terms and conditions. Contract amount shall not exceed the total of purchase order(s) issued. During the term of the Agreement the Contractor shall bill and the City shall reimburse the Contractor for all reasonable and approved out-of-pocket expenses for which are incurred in connection with the performance of the duties hereunder. Notwithstanding the foregoing, expenses for the time spent by Contractor traveling to and from City facilities shall not be reimbursable. V. Contractor and City acknowledge and agree that Gerald Hedges is and shall be deemed to be an independent contractor for the services he/she provides under this Contract. Further, because Gerald Hedges is an independent contractor, the parties agree: The City will make no withholding for taxes of any type from the fee agreed upon in Article IV. All taxes, including, but not limited to Social Security, unemployment, FICA or other monies owned to any State, Local or Federal governmental entity, including applicable penalties and interest, are to be paid by Contractor and are solely the liability of same. In the event a claim is made against City for payment of taxes, penalties or interest for or on behalf of Contractor, Contractor agrees to indemnify and hold harmless City of such damages, including costs and expenses. City will not provide workers’ compensation for Contractor for services performed pursuant to this Contract. This is a non-exclusive contract. Contractor is free to advertise and provide his/her services to persons or entities other than the City. Further, City may use other contractors or its own employees to conduct the same services as Contractor. Any insurance the City may have for its facility described above is solely for the benefit of the City. The City shall not be liable for injuries to property or persons (including death) which are the result of the activities of the Contractor. Contractor agrees he/she shall be liable for injuries to himself/herself or others caused by his/her own negligence, omissions, malfeasance, or intentional conduct. When applicable, for the services provided, contractor shall provide insurance for the activity as provided in the policies of the contract instructors program. The Contractor represents that there are no legal impediments to enter into this contract and that this engagement does not violate the terms of any agreement between the Contractor and any third party. Further, the Contractor, in rendering [his or her] duties shall not utilize any invention, discovery, development, improvement, innovation, or trade secret in which [he or she] does not have a proprietary interest, or a right to use. During the term of this agreement, the Contractor shall devote as much of [his or her] productive time, energy and abilities to the performance of [his or her] duties hereunder as is necessary to perform the required duties in a timely and productive manner. The Contractor is expressly permitted to perform services for other parties while performing services for the City. VI. The Contractor shall perform the following services in a professional manner: The Contractor shall perform all those Basic Services as necessary, and as described in the Contractor’s “Scope of Services”, which is attached hereto and incorporated herewith by reference as Exhibit “A”. If there is any conflict between the terms of this Agreement and any Exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached Exhibits. Contractor shall keep City informed with a defined reporting system, and by personal meetings. All lines of communication shall remain open with both the City and the customers or citizens. Contractor shall be available for any unexpected issues that may arise. ADDITIONAL SERVICES Additional services to be performed by the Contractor, if authorized by the City in writing, which are not included in the above-described Basic Services, are described as follows: Any additional services not included in Basic Services. VII. This Contract shall become effective upon execution of this Agreement by the City and the Contractor, and shall remain in effect thru October 1st, 2012, an initial one (1) year period. The City and the Contractor shall have the option to renew this contract for an additional four (4) one-year periods. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. Services undertaken pursuant to this contract will be required to commence within fourteen (14) days of delivery of a notice to proceed, or issuance of a City of Denton Purchase Order. Time is of the essence in this Agreement. The services shall be accomplished per the Scope of Services as identified in Exhibit A. Renewal Periods: 1st Renewal – 10/01/12 – 10/31/13 2nd Renewal – 10/01/13 – 10/31/14 3rd Renewal – 10/01/14 – 10/31/15 4th Renewal – 10/01/15 – 10/31/16 The Contractor shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its City Manager or his designee. VIII. Compensation Terms: “Subcontract Expense” is defined as expenses incurred by the Contractor in employment of others in outside firms for services. “Direct Non-Labor Expense” is defined as that expense for any assignment incurred by the Contractor for supplies, transportation, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. Billing and Payment: For and in consideration of the professional services to be performed by the Contractor herein, the City agrees to pay a total fee, including reimbursement for direct non-labor expenses, not to exceed $6,200. Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201-4299. It is the intention of the City of Denton to make payment on completed orders within thirty days after receipt of invoice or items; whichever is later, unless unusual circumstances arise. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Partial payments to the Contractor will be made on the basis of detailed bi-monthly statements rendered to and approved by the City through its City Manager or his designee; however, under no circumstances shall any bi-monthly statement for services exceed the value of the work performed at the time a statement is rendered. Nothing contained in this Article shall require the City to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The City shall not be required to make any payments to the Contractor when the Contractor is in default under this Agreement. It is specifically understood and agreed that the Contractor shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the City for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the City. The Contractor shall not proceed to perform the services listed in Article VI “Additional Services,” without obtaining prior written authorization from the City. ADDITIONAL SERVICES: For additional services authorized in writing by the City in Article VI hereinabove, the Contractor shall submit invoices for additional services and such invoices shall be due and payable upon submission by the Contractor with Contractor’s regular bi-monthly statement as provided for hereinabove. Statements shall not be submitted more frequently than bi-monthly. PAYMENT: If the City fails to make payments due the Contractor for services and expenses within thirty (30) days after receipt of the Contractor’s undisputed statement thereof, the amounts due the Contractor will be increased by the rate of one percent (1%) per month, from and after the said thirtieth (30th) day, and, in addition, the Contractor may, after giving seven (7) days written notice to the City, suspend services under this Agreement until the Contractor has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the City to pay the late charge of one percent (1%) set forth herein if the City reasonably determines that the work is unsatisfactory, in accordance with this Article VIII, “Compensation.” IX. The City may terminate this Agreement at any time by 10 working days’ written notice to the Contractor. In addition, if the Contractor is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directive of the City, or materially breaches provisions of this Agreement, the City at any time may terminate the engagement of the Contractor immediately and without prior written notice to the Contractor. In the event of termination for cause, the Contractor shall only receive payment for work satisfactorily performed, approved, and accepted by the City. X. In the event of default of Contractor for any term or provision of this Contract, the City upon notice to the Contractor of such default, may terminate this Contract without further obligations or liability. In the event of termination for cause, the Contractor shall only receive payment, based upon a pro-rate basis, less any damages incurred by the City for the default. The parties hereto acknowledge that the services to be rendered by the Contractor under this contract and the rights and privileges granted to the City under the Agreement are of a special, unique, unusual, and extraordinary character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by the Contractor of any of the provisions of this Agreement will cause the City irreparable injury and damage. The Contractor expressly agrees that the City shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Contractor. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the City may have for damages or otherwise. The various rights and remedies of the City under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law. XI. The City does not warrant or guarantee against the possibility that safety or environmental hazards or potential hazards may exist at the City’s facility. The Contractor shall be responsible for identifying any hazardous conditions and notifying the City of these conditions in writing no later than 30 days after contract award and prior to initiation of service delivery on the property. All contractors to the City of Denton are required to ensure absolute safety standards are applied and enforced. The City of Denton will not be responsible for individual contractor safety, and the awarded contractor shall not hold the City of Denton responsible. Known hazards shall immediately be reported and all safety precautions shall be taken to prevent potential safety issues from occurring. The Contractor shall at all times exercise reasonable precautions for the safety of participants and others on or near the City’s facility and shall comply with all applicable provisions of Federal, State, and Municipal safety laws. XII. The Contractor shall at all times observe and comply with all Federal, State and local laws, ordinances and regulations, which in any matter affect the Contractor or the work, and shall indemnify, defend and save harmless the City against any claim arising for the violation of any such laws, ordinances and regulations whether by the Contractors or its employees. XIII. Th e Contractor will carry liability insurance (including malpractice insurance, if warranted) relative to any service that [he or she] performs for the City for any contract with a total value greater than $25,000. Any insurance the City may have for its facility described above is solely for the benefit of the City. The City shall not be liable for injuries to property or persons (including death) which are the result of the activities of the Contractor. Contractor agrees he/she shall be liable for injuries to himself/herself or others caused by his/her own negligence, omissions, malfeasance, or intentional conduct. When applicable, for the services provided, contractor shall provide insurance for the activity as provided in the policies of the contract instructors program. Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide, at his or her own cost and expense, and maintain during the performance of the Services under this Agreement, and until the contracted work has been completed and accepted by the City of Denton, the minimum insurance coverage as indicated hereinafter. During the performance of the services under this Agreement, Contractor shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least A- VII or better: - Waived Comprehensive General Liability Insurance with bodily injury and property damage limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate. – Waived Automobile Liability Insurance with combined single limit bodily injury and property damage of not less than $500,000 for each accident. - Waived Workers’ Compensation – Waived Professional Liability Insurance - Waived The Contractor shall furnish insurance certificates or insurance policies at the City’s request to evidence such coverage’s. Except for workers’ compensation, employer’s liability, and professional liability policies, the above insurance policies shall name the City as an Additional Insured on all such policies. Such insurance shall not be canceled or the coverage reduced without thirty (30) days’ prior written notice (ten (10) days if for premium nonpayment) to City and Contractor. In such event, the Contractor shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. - Waived XIV. The laws of the State of Texas shall govern the interpretation, validity, performance and enforcement of this Contract and the exclusive venue for any legal proceedings involving this Contract shall be Denton County, Texas. XV. This contract shall not render the Contractor an employee, partner, agent of, or joint venture with the City for any purpose. The Contractor is and will remain an independent contractor in [his or her] relationship to the City. The City shall not be responsible for withholding taxes with respect to the Contractor’s compensation hereunder. The City will make no withholding for taxes of any type from the fee agreed upon in Article IV. All taxes, including, but not limited to Social Security, unemployment, FICA or other monies owned to any State, Local or Federal governmental entity, including applicable penalties and interest, are to be paid by Contractor and are solely the liability of same. In the event a claim is made against City for payment of taxes, penalties or interest for or on behalf of Contractor, Contractor agrees to indemnify and hold harmless City of such damages, including costs and expenses. City will not provide worker’s compensation for Contractor for services performed pursuant to this Contract The Contractor shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. The Contractor agrees to retain control and to give full attention to the fulfillment of this Contract, and agrees this contract will not be assigned or sublet without the prior written consent of the City. XVI. The Contractor shall defend, indemnify and hold harmless the City and its officers, agents and employees from and against all damages, injuries (including death), claims, property damages (including loss of use), losses demands, suits, judgments and costs, including reasonable attorney’s fees and expenses, in any way arising out or of or resulting from the performance of this Contract or caused by the negligent or intentional act or omission of the Contractor, its officers, agents, employees, subcontractors or invitees. As a condition to the foregoing indemnity obligation, City shall provide Contractor with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with Contractor in connection with any such claim. Contractor shall be entitled to control the handling of any such claim, with full disclosure of any and all claims, and actions taken thereunder, to the City; and Contractor shall be entitled to defend or settle any such claim, in its sole discretion, with counsel of its own choosing. Nothing in this agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party’s defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. XVII. This Contract shall be binding upon the parties hereto, their successors, heirs, personal representatives and assigns. XVIII. The City shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The Contractor shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the City’s sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. XIX. The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party’s disagreement may include the other party to the disagreement without the other’s approval. XX. All legal notices and communications required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the addresses shown below, certified mail, return receipt requested, unless otherwise specified herein: To Contractor: To CITY: Gerald Hedges City of Denton Owner George Campbell PO Box 304 City Manager Aubrey, TX 76227 215 E. McKinney Denton, TX 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after the date of mailing. XXI. The Contractor shall not assign any of or rights under this Agreement, or delegate the performance of any of his duties hereunder, without the prior written consent of the City. This Contract shall be binding upon the parties hereto, their successors, heirs, personal representatives and assigns. XXII. In performing the services required hereunder, Contractor shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. Contractor agrees that in connection with the services to be provided to City hereunder that it will comply with all applicable laws and regulations regarding employment discrimination applicable to Contractor. XXIII. All services required hereunder will be performed by Contractor. All personnel engaged in work shall have the necessary skills and experience, and shall be authorized and permitted under state and local laws to perform such services. Contractor shall inform the City of any conflict of interest that may be discovered or arise during the term of this Agreement. Contractor shall complete and submit Exhibit B. XXIV. No waiver or modification of this Agreement or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed; and, the parties further agree that the provisions of this section will not be waived unless as herein set forth. No amendment of this Agreement shall be valid unless in writing and signed by both parties. XXV. Notwithstanding any other provision in this Agreement, Contractor shall not be liable or held responsible for any failure to perform or delays in performing its obligations under this Agreement, which result from circumstances or causes beyond Contractor’s reasonable control, including, without limitation, acts or omissions or the failure to cooperate pursuant to this Agreement by City (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), fire or casualty, act of God, strike or labor disputes, war or other violence, or any law, order or requirement of any governmental agency or authority. XXVI. The following Exhibits are attached to, incorporated herewith by reference, and made a part of this Agreement: Exhibit A: Scope of Services Exhibit B: Conflict of Interest Form Contractor shall commence, carry on, and complete any and all contract assignments with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the assignments, Contractor shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the City. The City shall assist the Contractor by placing at the Contractor’s disposal all available information pertinent to the contract assignment, including previous reports, any other data relative to the contract assignment, and arranging for the access thereto, and make all provisions for the Contractor to enter in or upon public and private property as required for the Contractor to perform services under this Agreement. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. XXVII. If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. IN WITNESS HEREOF, City and Contractor have hereby executed this Agreement in four (4) original counterparts; the City acting by and through its duly-authorized Purchasing Agent; and the Contractor acting by and through its duly-authorized, undersigned officer, on this the ________ day of _____________________, 2012. AGREED TO THIS ______ DAY OF _____________________, 20___. CONTRACTOR CITY OF DENTON, TEXAS By: _______________________ By:______________________________ SIGNATURE Jody Hays, Buyer EXHIBIT A Close and lock the west and north gates at the Service Center 5 nights a week; excluding holidays. EXHIBIT B CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ  For vendor or other person doing business with local governmental entity  This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. OFFICE USE ONLY   Date Received  1 Name of person who has a business relationship with local governmental entity.       2   Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate.)   3 Name of local government officer with whom filer has an employment or business relationship.       Name of Officer    This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? Yes No Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes No Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes No D. Describe each affiliation or business relationship.  4            Signature of person doing business with the governmental entity  Date