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HomeMy WebLinkAboutResolution No. 2011-073 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2011-___t:d11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH TJ SPORTS TO PROVIDE SPORTS OFFICIATING SERVICES FOR THE PARKS AND RECREATION DEPARTMENT'S ATHLETIC PROGRAMS; PROVIDING AN EFFECTIVE DATE WHEREAS, the City has received proposals for sports officiating services for Parks and Recreation Department's athletic programs; and, WHEREAS, it is determined that TJ Sports has submitted the most cost effective proposal, has favorable references, and is able to provide services for softball, basketball, and volleyball. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas hereby authorizes the city manager to execute a sports officiating professional services agreement with TJ Sports in an amount not to exceed $35,000 for the 2011-2012 fiscal year. Section 2. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this I st day of November, 2011. ' `3 - fle lbleCorn t-}~, or " 1,~i ~,r J~r~ e re~ City of The Colony, Texas A/74;: r ; C 7ristre Wilson, TRMC, City Secretary APPROVED AS TO FORM: r.~~'~ ti '.Jeff IVhoore, City Attorney zrr<~ J AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is entered into the Ist day of November, 2011, by and between the CITY OF THE COLONY, TEXAS, hereinafter referred to as CITY and TJ SPORTS, hereinafter referred to as "UNDERSIGNED". WHEREAS, CITY desires UNDERSIGNED to perform certain work and services set forth in Scope of Services, marked Exhibit "A", and attached hereto and incorporated herein. WHEREAS, the UNDERSIGNED has expressed a willingness to perform said work and services, hereinafter referred to only as "services", specified in said Scope of Services, and enumerated under Article II, of this Agreement. NOW, THEREFORE, all parties agree as follows: ARTICLE I: GENERAL UNDERSIGNED shall fiu-nish and pay for all labor, tools, materials, equipment, supplies, transportation and management necessary to perform all services set forth in Article II hereof for the CITY in accordance with the terms, conditions and provisions of the Scope of Services, marked Exhibit "A", and attached hereto and incorporated herein for all purposes. CITY may, at any time, stop any services by the UNDERSIGNED upon giving UNDERSIGNED written notice. UNDERSIGNED shall be bound to CITY by the terms, conditions and responsibilities toward the CITY for UNDERSIGNED'S services set forth in this Agreement. ARTICLE II: SERVICES A. The following services, when authorized in writing by a Notice to Proceed, shall be performed by the UNDERSIGNED in accordance with the CITY'S requirements: COORDINATION AND ADMINISTRATION OF SPORTS OFFICIATION SERVICES NECESSARY FOR THE COLONY PARKS AND RECREATION DEPARTMENT ATHLETIC PROGRAMS AS DESCRIBED IN THE SCOPE OF SERVICES MARKED EXHIBIT "A". B. UNDERSIGNED shall be responsible for the professional quality, technical accuracy, and the coordination of all services furnished by UNDERSIGNED under this Agreement. UNDERSIGNED shall, without additional compensation, correct or revise any errors or deficiencies in the administration and provision of these services. C. Neither CITY'S review, approval or acceptance of, nor payment for any of the services required under this Agreement, shall be construed to operate as a waiver if any rights under this Agreement or if any cause of action arising out of the performance of this Agreement, and UNDERSIGNED shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by UNDERSIGNED'S negligent performance of any of the services furnished under this Agreement. D. The rights and remedies of CITY under this Agreement are as provided by law. ARTICLE III: PAYMENT A. CITY shall pay UNDERSIGNED for all services authorized in writing and properly performed by UNDERSIGNED on the basis herein described, subject to additions or deletions for changes or extras agreed upon in writing. B. Partial payment will be as stipulated in Exhibit "A" attached hereto and incorporated herein. C. Upon complete performance of this Agreement by UNDERSIGNED and final approval and acceptance of UNDERSIGNED'S service by CITY, CITY will make final payment to UNDERSIGNED of the balance due under this Agreement within thirty (30) days of the following month after final payment for such services has been billed by UNDERSIGNED. D. CITY may deduct from any amounts due or to become due to UNDERSIGNED any sum or sums owing by UNDERSIGNED to CITY. In the event of any breach by UNDERSIGNED of any provision or obligation of this Agreement, or in the event of the assertion by other parties of any claim or lien against CITY, or the CITY'S premises, arising out of UNDERSIGNED'S performance of this Agreement, CITY shall have the right to retain out of any payments due or to become due to UNDERSIGNED an amount sufficient to completely protect the CITY from any and all loss, damage or expense there from, until the breach, claim or lien has been satisfactorily remedied or adjusted by the UNDERSIGNED. I ARTICLE IV: TIME FOR PERFORMANCE A. UNDERSIGNED shall perform all services as provided for under this Agreement in a proper, efficient and professional manner in accordance with the CITY'S requirements. Both parties have agreed to the provisions of this Agreement in anticipation of the orderly and continuous progress of the scope of services specified in Exhibit "A", attached hereto. B. In the event UNDERSIGNED'S performance of this Agreement is delayed or interfered with by acts of the CITY or others, UNDERSIGNED may request an extension of time for the performance of same as hereinafter provided, but shall not be entitled to any increase in fee or price, or to damages or additional compensation as a consequence of such delays unless such delays exceed 90 days. C. No allowance of any extension of time, for any cause whatever, shall be claimed or made to the UNDERSIGNED, unless UNDERSIGNED shall have made written request upon CITY for such extension within forty-eight (48) hours after the cause for such extension occurred, and unless CITY and UNDERSIGNED have agreed in writing upon the allowance of additional time to be made. ARTICLE V: TERMINATION A. CITY may suspend or terminate this Agreement for cause or without cause at any time by giving written notice to the UNDERSIGNED. In the event suspension or termination is without cause, payment to the UNDERSIGNED, in accordance with the terms of this Agreement, will be made on the basis of services reasonably determined by CITY to be satisfactorily performed to date of suspension or termination. Such payment will be due upon delivery of all instruments of service to CITY. B. Should the CITY require a modification of its contract with UNDERSIGNED, and in the event CITY and UNDERSIGNED fail to agree upon a modification to this Agreement, CITY or the UNDERSIGNED shall have the option of terminating this Agreement. Payment to UNDERSIGNED shall be made by the CITY in accordance with the terms of this Agreement, for the services mutually agreed upon by the CITY and the UNDERSIGNED to be properly performed by the UNDERSIGNED prior to such termination date. ARTICLE VI: INSURANCE A. UNDERSIGNED shall provide and maintain Workers Compensation with statutory limits. B. UNDERSIGNED shall provide and maintain in full force and effect during the time of this Agreement, auto insurance (including, but not limited to, insurance covering the operation of owned and non-owned automobiles, trucks and other vehicles) protecting UNDERSIGNED and CITY as an additional Insured with limits not less than 250/500/100,000. C. UNDERSIGNED shall provide General Liability Insurance. Such insurance covering personal and bodily injuries or death shall be in the sum of not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per occurrence and Five Hundred Thousand Dollars ($500,000.00) aggregate. Insurance covering damages to property shall be in the sum of not less than One Hundred Thousand Dollars ($100,000.00). The general Liability Insurance must name the CITY as an additional Insured. D. UNDERSIGNED shall also provide and maintain Professional Liability Errors and Omissions Insurance coverage to protect UNDERSIGNED and CITY from liability arising out of the performance of professional services, if any, under this Agreement. Such coverage shall be in the sum of not less than Three Hundred Thousand Dollars ($300,000.00) per occurrence and Five Hundred Thousand Dollars ($500,000.00) aggregate. E. A signed Certificate of Insurance, satisfactory to CITY, showing compliance with the requirements of this Article shall be furnished to CITY before any services are performed. Such Certificate shall provide 30 days written notice to CITY prior to the cancellation or modification of any insurance referred to therein. ARTICLE VII: INDEMNIFICATION FOR INJURY AND PERFORMANCE UNDERSIGNED further specifically obligates itself to CITY in the following respects, to-wit: The UNDERSIGNED hereby agrees to protect, indemnify and hold harmless the CITY, their officers, agents, servants and employees (hereinafter individually and collectively referred to as "Indemnitees"), from and against suits, actions, claims, losses, liability or damage of any character, and from and against costs and expenses, including, in part, attorney fees incidental to the defense of such suits, actions, claims, losses, damages or liability on account of injury, disease, sickness, including death, to any person or damage to property including, in part, the loss of use resulting therefrom, arising from any negligent act, error, or omission of the UNDERSIGNED, its officers, employees, servants, agents or subcontractors, or anyone else under the UNDERSIGNED'S, direction and control, and arising out of, resulting from, or caused by the performance or failure of performance of any work or services called for by this Agreement, or from conditions created by the performance or non-performance of said work or services. In the event one or more of the Indemnitees is determined by a court of law to be jointly or derivatively negligent or liable for such damage or injury, the UNDERSIGNED shall be obligated to indemnify Indemnitee(s) as provided herein on a proportionate basis in accordance with the final judgment, after all appeals are exhausted, determining such joint or derivative negligence or liability. ARTICLE VIII: INDEMNIFICATION FOR UNEMPLOYMENT COMPENSATION UNDERSIGNED agrees that it is an independent contractor and not an agent of the CITY, and that UNDERSIGNED is subject, as an employer, to all applicable Unemployment Compensation Statutes, so as to relieve CITY of any responsibility or liability from treating UNDERSIGNED'S employees as employees of CITY for the purpose of keeping records, making reports or payments of Unemployment Compensation taxes or contributions. UNDERSIGNED further agrees to indemnify and hold CITY harmless and reimburse it for any expenses or liability incurred under said Statutes in connection with employees of UNDERSIGNED. ARTICLE IX: INDEMNIFICATION FOR PERFORMANCE UNDERSIGNED shall defend and indemnify Indemnitees against and hold CITY and the premises harmless from any and all claims, suits or liens based upon or alleged to be based upon the non-payment of labor, tools, materials, equipment, supplies, transportation and management costs incurred by UNDERSIGNED in performing this Agreement. ARTICLE X: ASSIGNMENT UNDERSIGNED shall not assign or sublet this Agreement or any part thereof, without the written consent of CITY. Sale of more than 50% ownership of UNDERSIGNED shall be construed as an assignment. ARTICLE XI: APPLICABLE LAWS UNDERSIGNED shall comply with all Federal, State, County and Municipal laws, ordinances, regulations, safety orders, resolutions and building codes, including the Americans With Disabilities Act, relating or applicable to services to be performed under this Agreement. This Agreement is performable in the State of Texas and shall be governed by the laws of the State of Texas. Venue on any suit hereunder shall be in Denton County, Texas. ARTICLE XII: DEFAULT OF UNDERSIGNED In the event UNDERSIGNED fails to comply or becomes disabled and unable to comply with the provisions of this Agreement as to the quality or character of the service or time of performance, and the failure is not corrected within ten (10) days after written notice by CITY to UNDERSIGNED CITY may, at its sole discretion without prejudice to any other right or remedy: A. Terminate this Agreement and be relieved of the payment of any further consideration to UNDERSIGNED except for all work determined by CITY to be satisfactorily completed prior to termination. Payment for work satisfactorily completed shall be for actual costs, but shall not include any loss of profit of UNDERSIGNED. In the event of such termination, CITY may proceed to complete the services in any manner deemed proper by CITY, either by the use of its own forces or by resubmitting to others. In either event, the UNDERSIGNED shall be liable for all costs in excess of the total contract price under this Agreement incurred to complete the services herein provided for and the costs so incurred may be deducted and paid by the owner out of such monies as may be due or that may thereafter become due to UNDERSIGNED under and by virtue of this Agreement. B. CITY may, without terminating this Agreement or taking over the services, furnish the necessary materials, equipment, supplies and/or help necessary to remedy the situation, at the expense of the UNDERSIGNED. ARTICLE XIII: ADJUSTMENTS IN SERVICES No claims for extra services, additional services or changes in the services will be made by UNDERSIGNED without a written agreement with CITY prior to the performance of such services. ARTICLE XIV: EXECUTION BECOMES EFFECTIVE This Agreement will be effective upon execution of the contract by and between UNDERSIGNED and CITY. ARTICLE XV: AGREEMENT AMENDMENTS This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and there are no oral understandings, statements or stipulations bearing upon the meaning or effect of this Agreement which have not been incorporated herein. This Agreement may only be modified, amended, supplemented or waived by a written instrument executed by the parties except as may be otherwise provided therein. ARTICLE XVI: GENDER AND NUMBER The use of any gender in this Agreement shall be applicable to all genders, and the use of singular number shall include the plural and conversely. ARTICLE XVII: NOTICES AND AUTHORITY A. The UNDERSIGNED agrees to send all notices required under this Agreement to the City Manager of the City of The Colony or his designee, at 6800 Main St., The Colony, Texas 75056. The UNDERSIGNED understands that only the City Manager or his designee has the authority to represent the CITY or bind the CITY under this Agreement. B. The CITY agrees to send all notices required under this Agreement to the UNDERSIGNED at: ;N'--l 3 Y Z r/M d"I / AJ D t N c,i,v v>tt4 7W 7,!'J 3-7 ARTICLE XVIII If there is a conflict between the Agreement, an Exhibit, the sealed bid, and/or the Response, then such conflicts shall be resolved as follows: A If there is a conflict between the Agreement and an Exhibit, then the Agreement controls. B If there is a conflict between the Agreement and the RFP, the Agreement controls. C If there is a conflict between the Agreement and the Response, then the Agreement controls. D If there is a conflict between the Response and an Exhibit, then the Exhibit controls. E If there is a conflict between the Response and the RFP, then the RFP controls. F If there is a conflict between the Agreement and the RFP, then the Agreement controls. ARTICLE XIX: CLOSURE i --A IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this the day of , 2011. CITY: UNDERSIGNED: City of The Colony, Texas / T By: By: AAA, City nager 6800 Main St. Title: The Colony, Texas 75056 Addi°ess: 11y .tit h./W,tSrR0 Approved as to Content: Department Director EXHIBIT "A" 1. Scope of Services for TJ SPORTS A. To schedule and provide officials who are in good standing of each sport's governing body at all league and tournament games sponsored by the City. B. To pay officials hired by TJ SPORTS in a timely manner in accordance with the payment schedule listed below for games worked by the officials. C. To warrant that all officials provided shall be registered and a member in good standing of each sport's governing body, and each official is at all times covered by a policy of general public liability insurance obtained through the governing body of each league. D. To recruit and train members and to ensure that each member is fully knowledgeable of current league and governing body rules and regulations. E. To provide to the City a current list of all members and Board members of TJ SPORTS with contact information, and to keep the list updated on a regular basis. F. To provide the City with a weekly schedule of officials 2 days in advance of games and to promptly notify the City of changes to the schedule. 2. In consideration of the foregoing agreement of TJ SPORTS, the City agrees: A. To schedule all league and tournament games, and to promptly notify TJ SPORTS accordingly. B. To print such league schedules including therein by the city, and to provide copies of such schedules to TJ SPORTS. C. To pay TJ SPORTS in a timely manner for games worked pursuant to ~i this agreement in accordance with the following schedule (see attached chart): Assigner's Assigner's Cost/Official Fee* Cost/Scorekeeper Fee* Adult Softball $18.00 $1.00 N/A (2 officials also keeping score) Adult Softball $17.00 $1.00 $10.00 $1.00 (2 officials not keeping score) Adult Softball $27.00 $1.00 N/A (1 official also keeping score) Adult Softball $25.50 $1.00 $10.00 $1.00 (1 official not keeping score) Youth Basketball $18.00 $2.00 $10.00 $1.00 (1 official/game-45 min games) Youth Basketball $21.00 $2.00 $10.00 $1.00 (2 officials/game-45 min games) Youth Basketball $21.00 $2.00 $10.00 $1.00 (2 officials/game-60 min games) Adult Basketball $25.00 $2.00 $12.00 $1.00 (2 officials/game-60 min games) Youth Volleyball $18.00 $2.00 N/A (1 official also keeping score) Youth Volleyball $17.00 $2.00 $10.00 $1.00 (1 official not keeping score) *NOTE: Assigner's fee is awarded each time an official or scorekeeper is assigned and shows 'o the game. An assigner's fee will not be awarded for any position left vacant during game. i. If on the day of any scheduled game an official starts a game but must call the game due to inclement weather, faulty equipment, unsafe playing conditions, etc., the official will be paid for games worked, not games scheduled. ii. If the official shows up at the gym but games cannot begin to be played due to adverse weather, faulty equipment, unsafe playing conditions, etc., the official will be paid for one game. i to forfeits will be iii. Any changes to the league schedule due reported to TJ SPORTS within 72 hours of the schedule change. Officials will not be paid for forfeit games that are reported to TJ SPORTS with 72 hours notice unless the forfeit creates a "gap" in the schedule. The City will at all times attempt to reorganize the schedule when given notice of forfeits to eliminate "gaps", in which case officials will be paid only for games worked. iv. The City will give a minimum of 48 hours notice for any changes to the schedule as a result of rainouts, makeup games, etc. 3. Payment Schedule A. Th e City will pay TJ SPORTS for half of the league season prior to the first week of games as invoiced by TJ SPORTS. 90% of the remaining balance will be invoiced at the mid-point of the season for work completed according to the pay schedule in Section 2. The balance of games due will be invoiced at the conclusion of the season, less any games owed back to the City due to no-shows, etc. B. Th e City must receive invoices from TJ SPORTS no later than 12:00pm on the Wednesday of each pay week, and checks will be available for pick-up by or to be mailed to TJ SPORTS after 3:00pm on the Friday of the pay week. 4. Special Conditions A. Length of this price agreement shall be for one (1) full year. The contract may be renewed for an additional 2 one-year terms if mutually agreed upon by both parties. B. Th e City of The Colony reserves the right to cancel this agreement upon thirty- (30) days written notice. C. The City operates on a fiscal year that ends on September 30tH Because State law states that a municipality may not commit funds beyond a fiscal year, this bid is subject to cancellation if funds for this commodity are not approved in the next fiscal year.