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HomeMy WebLinkAboutContract 42889CITY SECRETARY CONTRACT NO. 42232 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into by and between THE CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas ( "City "), acting by and through its duly authorized Assistant City Manager, and BUXTON COMPANY ( "Consultant "), a Texas corporation, acting by and through its duly authorized Chief Financial Officer. WHEREAS, the City owns and manages a collection of materials and series of buildings that function collectively as the Fort Worth Public Library (the "Library ") and that are freely open to all person under identical conditions in accordance with state law and the City Charter and Code of Ordinances; and WHEREAS, the City recently undertook to develop an updated master plan for the Library to better allocate resources to meet current needs and to plan for future development and services; and WHEREAS, Consultant specializes in identifying and analyzing customer market segmentation and recommending optimum sites and services based on this analysis; and WHEREAS, the City and Consultant entered in to an agreement whereby Consultant provided customer analytic services in connection with the Library master plan development, the same being Fort Worth City Secretary Contract No. 39453 (the "Contract "); and WHEREAS, the parties wish to enter in to a new agreement to allow for periodic refreshing of the data gathered under the terms of the Contract and to provide for on -going access so that the City may continue to tailor its implementation of the Library master plan to the evolving needs of Library customers. NOW, THEREFORE, for and in consideration of the mutual agreements stated herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: OFFICiAL P`-Ctti i . G1TY ° ; T�lt�' On -Going Services Agreement vNith Buxton CompanN �N1, Page 1 of 13 I . Services. a) Consultant will, on request from the City but no more frequently than once per year, take on new feeds of data to update the nineteen (19) material categories and profile /trade area delineations for the City's sixteen (16) libraries in the same manner as the data acquisition that Consultant performed in the original project under Fort Worth City Secretary Contract No. 39453. Consultant will use this data to refresh the City's CommunityID Predictive Customer Model ( "CommunityID") and upload the refreshed information into Consultant's web -base SCOUT tool. The tasks described under this paragraph shall be referred to as the "Data Refresh" for purposes of this Agreement. Consultant shall perform an initial Data Refresh within 60 days of the date this Agreement is fully executed. b) Throughout the Initial Term of this Agreement and any renewals thereof, Consultant shall provide the City with on -going access to the City's CommunityID via Consultant's web -based SCOUT tool. The tasks described under this paragraph shall be referred to as "Ongoing Access" for purposes of this Agreement. c) Throughout the Initial Term of this Agreement and any renewals thereof, Consultant shall perform additional customer - related analysis as requested by the City. The tasks described under this paragraph shall be referred to as "Ad Hoc Analysis" for purposes of this Agreement. d) Throughout the Initial Term of this Agreement and any renewals thereof, Consultant shall, on request by the City, prepare customer- analytics -based targeted direct marketing mailing lists in an electronic format, with each list prioritized on those prospects whose behavior demonstrates they are most likely to respond to the proposed mailer. For each mailing list, Consultant shall also provide an executive summary report, detailing the matching process, the identification of "best" customers, critical criteria impacting the regression equation, and selects and deselects. The tasks described in this paragraph shall be referred to as "Direct Mail" for purposes of this Agreement. On -Going Services Agreement with Buxton Company Page 2 of 13 e) The Data Refresh, Ongoing Access, Ad Hoc Analysis, and Direct Mail shall be referred to collectively as the "Services" for purposes of this Agreement. f) Consultant shall perform all Services in accordance with (i) standards in the industry for the same or similar services and (ii) all applicable federal, state, and local laws, rules, and regulations. 2. Term; Renewal. This Agreement shall encompass all Services provided for a one -year period beginning January 1, 2012, and ending December 31, 2012, unless terminated earlier in accordance with Section 4 of this Agreement (the "Initial Term "). This Agreement may be extended for additional one -year periods under the same terms and conditions on mutual signed, written consent of the parties (each a "Renewal Term "). 3. Compensation. a) Fee As full and complete compensation for the Data Refresh services described above, Consultant shall be paid a flat fee of $17,500.00 per refresh. As full and complete compensation for the Ongoing Access services described above, Consultant shall be paid a flat fee of $3,000.00 per year for each year this Agreement remains in effect. As full and complete compensation for the Ad Hoc Analysis services described above, Consultant shall be paid a fee of $225.00 per hour. As full and complete compensation for the Direct Mail services described above, Consultant shall be paid a fee of $0.10 per name, per mailing list with a minimum -order amount of $1,000.00. Consultant's combined total fee for the Initial Term or for any Renewal Term shall not exceed Fifty Thousand Dollars ($50,000.00). b) Structure of Payments The Consultant's fee for the Data Refresh and Ongoing Access during the Initial Term will be divided into three payments corresponding to certain project milestones as follows: Execution of Contract $10,250.00 Delivery of Refreshed CustomerlD Profile $5,125.00 On -Going Services Agreement with Buxton Company Page 3 of 13 Within Ten Days of Upload of Refreshed Data and Access to SCOUT $5,125.00 ii. Following completion of each of the listed milestones, the Consultant shall provide the City with a signed fee invoice summarizing the portion of the Services that has been completed and requesting payment. If the City requires additional reasonable information, it shall request the same promptly after receiving the above information, and the Consultant shall provide such additional reasonable information to the extent the same is available. Invoices shall be submitted to Deborah Duke, 500 W. 3rd Street, Fort Worth, Texas 76102. Invoices are due and payable within 30 days of receipt. iii. For any Ad Hoc Analysis or Direct Mail services requested by the City and performed by the Consultant, Consultant will issue an invoice for the work performed. Invoices shall be submitted no later than the 15th day following the completion of the Ad Hoc Analysis or provision of the Direct Mail list and sent to Deborah Duke, 500 W. 3rd Street, Fort Worth, Texas 76102. Invoices are due and payable within 30 days of receipt. iv. The Consultant shall provide the City with signed time sheets documenting the time spent on any Ad Hoc Analysis and with documentation for any Direct Mail services performed, which shall generally be sufficient documentation to substantiate invoices. If the City requires additional reasonable documentation, it shall request the same promptly after receiving the above - described information, and the Consultant shall provide such additional reasonable documentation to the extent the same is available. V. In the event of a disputed or contested billing, only the portion being contested will be withheld from payment, and the undisputed portion will be paid. City will exercise reasonableness in contesting any bill or portion On -Going Ser',rices Agreement ��ith Buxton Compan} Page 4 of 13 thereof. No interest will accrue on any contested portion of the billing until the contest has been mutually resolved. vi. For contested billings, the City shall make payment in full to Consultant within 60 days of the date the contested matter is resolved. If City fails to make such payment, Consultant may, after giving 7 days' written notice to City, suspend services under this Agreement until paid in full, including interest calculated from the date the billing contest was resolved. In the event of suspension of services, Consultant shall have no liability to City for delays or damages caused to City because of such suspension of services. 4. Termination. Either Party may terminate this Agreement at any time, with or without cause, by providing the other Party with thirty (30) days' written notice of termination. In the event this Agreement is terminated prior to expiration of the Term, City shall pay Consultant only for Services actually rendered as of the effective date of termination. In the event this Agreement is terminated prior to expiration of the Term, 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 5. Independent Contractor. Consultant shall operate hereunder as an independent contractor and not as an officer, agent, servant, or employee of City. Consultant shall have exclusive control of and the exclusive right to control the details of the Services performed hereunder and all persons performing same and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, and subcontractors. The doctrine of respondeat superior shall not apply as between the City and Consultant, its officers, agents, servants, employees, or subcontractors. Nothing herein shall be construed as creating a partnership or joint enterprise between City and Consultant. It is expressly understood and agreed that no officer, agent, servants, employee, or subcontractor of Consultant is in the paid service of City. 6. Liability and Indemnification. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND /OR On -Going Services /agreement �Nith Buxton Company Page 5 of 13 PERSONAL INJURY, INCL UDING DEATH, TO ANYAND ALL PERSONS, OFANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CA USED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. CONSULTANT AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESSAGAINSTANYAND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND /OR PERSONAL INJURY (INCLUDING DEATH) THAT MAYRELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (1) CONSULTANT'S BREACH OFANY OF THE TERMS OR PROVISIONS OF THISAGREEMENT OR (11) ANY NEGLIGENTACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANYLIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONSULTANT AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OFTEXAS. NOTHING HEREINSHALL BE CONSTRUEDASA WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS. 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. This section shall survive the expiration or termination of this Agreement. 7. Confidential and Proprietary Information. The City acknowledges that Consultant may use products, materials, or methodologies proprietary to Consultant. The City agrees that Consultant's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products, materials, or methodologies unless the Parties have executed a separate written agreement with respect thereto. Consultant, for itself and its officers, agents, servants, employees, and subcontractors, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to any third party without the prior written approval of the City. On -Going Services Agreement %kith Burton Company Pagc 6 of 13 Notwithstanding the foregoing, Consultant understands and agrees that the City is a public entity under the laws of the State of Texas, and as such, is subject to various public information laws and regulations, including, but not limited to, the Texas Public Information Act, Chapter 552 of the Texas Government Code (the "Act "). Consultant acknowledges that, under the Act, the following information is subject to disclosure: 1) all documents and data held by the City, including information obtained from the Consultant, and 2) information held by the Consultant for or on behalf of City that relates to the transaction of City's business and to which City has a right of access. If the City receives a request for any documents that may reveal any of Consultant's proprietary information under the Act, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Consultant prior to disclosure of such documents. The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as "Proprietary / Confidential Information" or if disclosure is required by the Act or any other applicable law or court order. In the event there is a request for such information, it will be the responsibility of Consultant to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 8. Insurance. During the term of this Agreement, Consultant shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth in this Section as well as any and all other public risks related to Consultant's performance of its obligations under this Agreement. Consultant shall specifically obtain the following types of insurance at the following limits: • Commercial General Liability: $1,000,000.00 per occurrence; providing blanket contractual liability insurance products and completed operations; independent contractor's liability; and coverage for property damage to City facilities. • Errors & Omissions (Professional Liability): 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 On -Going Sery ices Agreement with Buxton Company Page 7 of 13 shall state that the coverage is claims -made and include the retroactive date. The insurance shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence coverage. Coverage shall be in the following amounts: (1) $1,000,000.00 per occurrence or claim (2) $1,000,000.00 aggregate • Worker's Compensation/Employer Liability: (1) $100,000.00 Each accident/occurrence (2) $100,000.00 Disease - per each employee (3) $500,000.00 Disease - policy limit Consultant shall promptly provide the City with certificates of insurance that verify Consultant's compliance with the insurance requirements of this Agreement. The City's Risk Manager shall have the right to review and evaluate Consultant's insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. Consultant shall comply with such requests or revisions as a condition precedent to the effectiveness of this Agreement. 9. Assignment. Consultant shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment of subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. If 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 under this Agreement prior to 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 On -Going Smices Agreement xNith Buxton Compun} Page 8 of 13 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. Compliance with Law. Consultant, its officers, agents, servants, employees, and subcontractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Consultant any such violation on the part of Consultant or any of its officers, agents, servants, employees, or subcontractors, then Consultant shall immediately desist from and correct such violation. 11. Non - Discrimination. In the execution, performance, or attempted performance of this Agreement, Consultant will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will Consultant permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ( "Discrimination in Employment Practices "), and Consultant hereby covenants and agrees that Consultant, its officers, agents, employees, and subcontractors have fully complied with all provisions of same and that no employee or employee - applicant has been discriminated against by either Consultant, its officers, agents, employees, or subcontractors. 12. Right to Audit. Consultant 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 the Consultant involving transactions relating to this Agreement. 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. On -Going Ser. ices Agreement kith Buxton Company Page 9 of 13 Consultant further agrees to include in all of 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, and further that City shall have access during normal working hours to all subcontractor 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 subcontractor reasonable advance notice of intended audits. This section shall survive the expiration or termination of this Agreement. 13. Fiscal Funding. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments 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 City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 14. Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. 15. 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, postage prepaid, to the address of the other Party shown below: TO CITY: Charles Daniels, Assistant City Manager City of Fort Worth 1000 Throckmorton St. Fort Worth, Texas 76102 (817) 392 -6183 TO CONSULTANT: Thomas J. Buxton Buxton Company 2651 South Polaris Drive Fort Worth, Texas 76137 (817) 332 -3681 16. 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 On-Going Services Agreement with Huston Company Page 10 of 13 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. 17. Non - Waiver. The failure of either Party to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's or Consultant's right to assert or rely on any such term or right on any future occasion. 18. 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 provision of the Services. In the event that any conflicts of interest arise after the execution of this Agreement, Consultant hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict. 19. Minority and Woman Business Enterprise Participation. In accordance with City Ordinance No. 15530, the City has goals for the participation of minority business enterprises and woman business enterprises ( "M/WBE ") in City contracts. Consultant acknowledges the M/WBE goal established for this Agreement and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Consultant may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. 20. Governmental Powers. Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 21. 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. On -Going Services Agreement with Buxton Company Page I I of 13 22. Force Maieure. If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event "), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. 23. Headings not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 24. 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. 25. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. 26. Signature Authority. The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective Party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement. 27. Entire Agreement. This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the Parties concerning the work On -Going Services Agreement with 13uxton Company Page 12 of 13 and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. EXECUTED in multiple originals on this, the .�� �.. day of 12012. Ij CITY OF FORT WORTH, TEXAS Ch Daniels Assistant City Manager Date Signed: QZ, O $, /Z BUXTON COMPANY David B. Glover Chief Financial Offic Date Signed: D/ Z APPROVED AS TO FORM No M &C Required OFF, 11 CITY SIEMETA RY On -Going Services Agreement ��ith Buxton Company Page 13 of 13