HomeMy WebLinkAboutContract 39099 C� CRET
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AGREEMENT FOR PROFESSIONAL SERVICES ICES _3T"
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreenient") 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 LOU WETHERBEE AND ASSOCIATES, LLC ("Consultant"), acting by
and through its duly authorized Member.
L Scove of Services. Consultant covenants and a,rees, with good faith and due
diligence, to assist the Fort Worth Public Library Long Range Plan Manager, Deborah Duke,
("Manager") and the Planning Committee by facilitating meetings and focus groups associated
with the preparation of a long range plan for the Fort Worth Public Library_
In particular, Contractor will assist the City with the following events ("Meetings"):
a) Management Team Meeting
Description: Internal meeting of the Library's Management Team
Date: Week of September 7, 2009 or another date mutually agreed upon by City and
Consultant
Format: Four-hour meeting with two, ?-hour sessions and a break for lunch
Consultant's Duties:
Prior to Meeting: Confer with the Manager to prepare an agenda, determine
meeting room set-up and logistics, and establish overview of the objective(s) of
the facilitation in relation to the preparation of a long range plan.
At least two business days prior to the Meeting, provide Manager with a Meeting
agenda and script and/or major discussion topics as appropriate.
At Meeting: Furnish a team composed of at least two persons on-site to facilitate
the discussion of issues and themes, ask questions to solicit further information as
appropriate, and maintain notes of the discussion.
Following Meeting: No later than two weeks after the date on Ti'zI �ir-t teetiztg
takes place, provide a written summary of the Management T 10Mg in an
electronic, Microsoft Word format. Ut RECORD s
EFT
"Iy SECRETARY
WOiRTH, TX
Professional Services Agreement aa ith Lou Wetherbee and Assoc..LLC
b) Planning Committee Meeting
Description: Meeting involving third-party planning consultants, Planning Committee
members, and tanager
Date: On or around September 22, 2009 or another date mutually agreed upon by City
and Consultant
Format: One, two hour session with breaks as appropriate.
Consultant's Duties:
Prior to Meeting: None.
At Meeting,: Furnish a team composed of at least two persons on-site to attend
meeting, listen, and take notes to gain a better understanding of the long range
planning study issues and design.
Following Meeting: Use information obtained at Meeting to design focus group
sessions and prepare for the Follow-Up Meeting.
c) Focus Group Neetings
Description: A series of three Meetings — one each with the following groups: the
Library :Advisory Board; the Friends of the Fort Worth Public Library, Inc.; and the Fort
Worth Public Library Foundation — with guided discussions intended to solicit input
regarding issues to be addressed in development of long range plan.
Date: October 2009, with two Meetings held on one day and the third Meeting held on
another date and with all dates mutually agreed to by City and Consultant
Format: Each focus group session will last approximately ninety minutes with breaks as
appropriate.
Consultant's Duties:
Prior to Meeting?: Confer with the Manager to prepare questions, determine
meeting room set-up and logistics, and establish overview of the objective(s) of
the facilitation in relation to the preparation of a long range plan.
At least one week prior to each Meeting, provide .Manager with a Meeting
agenda, script, and set-up instructions.
At Meeting: Furnish a team composed of at least two persons on-site to conduct
and manage each focus group, guide discussion, receive input, ask questions to
solicit further information as appropriate, and maintain notes of the proceedings.
Following Meeting: No later than two weeks after the date on which each
Meeting takes place, provide a separate written summary for each Focus Group
Meeting in an electronic, Microsoft Word format.
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d) Planning Session Meeting
Description. Meeting involving Planning Committee members and Manager
Date: Mid-December 2009 or another date mutually agreed upon by City and Consultant
Format: Approximately six-hour meeting with lunch and other breaks as appropriate
Consultant's Duties:
Prior to Meeting: Confer with the Manager to prepare an agenda, determine
meeting room set-up and logistics, and establish overview of the objective(s) of
the facilitation in relation to the preparation of a long range plan.
At least one week prior to the Meeting, provide Manager with a Meeting agenda,
script and/or discussion topics, and instructions for participants.
At Meeting: Furnish a team composed of at least two persons on-site to facilitate
the discussion and to assist with organizing and arranging the Ion" range planning
data obtained from the facilities and marketing consultants, along with the focus
group data, and other available data.
2. Term. Services shall be provided by Consultant for a term beginning September 1, 2009
and ending February 28, 2010, unless terminated earlier in accordance with Section 4 of this
Agreement.
3. Compensation.
a) Fee
As full and complete compensation for all Services described above, Consultant
shall be paid a flat fee of Thirteen Thousand Dollars ($13,000.00) plus travel
reimbursement as detailed below.
b) Travel Expenses
In addition to any fee due under Subsection (4)(a), City shall reimburse
Consultant for actual travel-related expenses (such as personal car mileage and a
limited per diem) at a reasonable and customary rate in an amount not to exceed
Eight Hundred Dollars ($800.00) total. Personal car mileage will be billed at
standard IRS business mileage rates in effect at the time of travel.
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c) Structure of Payments
i. Structure of Payments
i. Consultant's fee will be divided into two payments corresponding to
certain project milestones as follows:
Following Execution of Agreement: $4,335
Completion of Follow-Up Meeting $8,665
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. On full and final completion of the Services, Consultant shall
submit a final fee invoice, and City shall pa_v any balance due within 30
days of receipt of such invoice.
iii. Travel reimbursement shall be paid monthly_ The Consultant will issue
monthly invoices for all travel costs under this Agreement no later than the
15th day following the end of the month. Travel invoices are due and
payable within 30 days of receipt.
iv. 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
thereof No interest will accrue on any contested portion of the billing
until the contest has been mutually resolved.
V. 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 4giving 7 days' v,ritten notice to
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City, suspend services under this Agreement until paid in hill, including
interest calct.latpd 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 Consultant with thirty 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 and travel expenses actually incurred as of 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 AGREES TO DEFEND,
INDEMNIFY, AND HOLD THE CITY ITS OFFICERS, AGENT5, VRV ANTS, AND
EMPLOYEES HARMLESS AGAINST ANY AND ALI. CLAIMS, LAWSUIT5, ACTIONS,
COSTS, AND EXPE_1 V V 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 LOOT PROFITS) AND/OR PERSONAL
LVJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE
OCCASIONED BY (1) CO.N.SULT.ANTW BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THLS AGREEMENT OR (11)ANY NEGLIGENT ACTOR OMMMON OR
INTENTIONAL 41I5CONDUCT OF CO VULTANT, ITV OFFICERS, AGENTS,
ASSOCIATES, EMPLOYEE.S, CONTRACTORS (OTHER THAN THE CITY), OR
SUBCONTRACTORS RELATED TO THE PERFOKMANCE OF THLS AGREEMENT,
EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THLS SECTION SHALL :VOT
Professional Services Agreement i0th Lou Wetherbee and Assoc._LLC Page 5 of 11
APPLY TO ANY LIABILITY RESULTING FROM THE .SOLE _VEGI_IGE-,VCE OF THE,
CITY OR ITS OFFICERS,AGENTS, EMPL0IEES, OR.SEPARATE CONTRACTORS,AND
IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH
CO.NW UL TANT AND CITY, RESPO.,VV1BIL ITY, IF ANY, .SHALL BE APPORTIONED
C0:11P4RATIVELY IN ACCORDANCE IVITH THE LAiI/S OF THE STATE OF TEXAS.
NOTHING HEREIN SHALL BE CONS VTRUED A.S A WAIVER OF THE CITYW
GOVERNME TT41, I11fIIUNITYAS FURTHER PROVIDED BY THE LAWS OF TEXASS
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. 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:
• Worker's Compensation/Employ Liability:
(1) $100,000 Each accident/occurrence
(2) $100,000 Disease - per each employee
(3) $500,000 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.
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S. AsOmment. Consultant may subcontract with Susan Loving and F. Mason and
Associates ("Permitted Subcontractors") to assist xvith fulfillnEent of Consultant`s duties under
this Agreements however, Consultant shalt retain ultimate responsibility for ensuring that all
duties are fulfilled and all obligations met. With the exception of engaging the services of the
above-named Permitted Subcontractors, 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
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.
9. 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.
10. 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.
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This ,-\g;iement is made and entered into with reference specifically to Chapter 17,
Article 11.I, 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.
11, 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.
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.
12. Fiscal Funding. In the event no hinds 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.
Professional Services Agreement %ith Lou Wetherbee and Assoc.. LLC Page 8 of 11
I Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity,
arise out of the xecution, performance, attempted performance of this Agreement, venue for
said action shall lie in Tarrant County, Texas.
14, Notices. Notices to be provided hereunder shall be Sufficient if forwarded to the other
Party by hand-delivery or via U.S. Postal Service certified mail, postage prepaid, to the address
of the other Party shown below:
Charles W. Daniels, Assistant City Manager Loeulla V. Wetherbee
City of Fort Worth Lou Wetherbee and Associates, LLC
1000 Throckmorton St. 10757 Villager Road, Apt. D
Fort Worth, Texas 76102 Dallas, Texas 75230
(817) 392-6183 (21) 351-3788
15. 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.
16. Disclosure of Conflicts and Confidential Information. 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.
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. Notwithstanding the foregoing, Consultant understands and
agrees that the City is subject to various public information laws and regulations, including, but
not limited to, the Texas Public Information Act. Consultant, for itself and its officers, agents,
sen-ants, employees, and subcontractors, further agrees that it shall treat all information provided
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to it by the City as confidential and shall not disclose any suchl information to any third party
without the prior written approval of the City.
17. 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
MIVdBE 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.
18. 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.
19. 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.
20. Force Maieure, 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
anv delay or omission in performance due to force majeure or other causes beyond their
reasonable control, including, but not limited to acts of God, acts of omission, fires, strikes,
lockouts, national disasters, wars, riots, material or labor restrictions by any governmental
authority, transportation problems and/or any other similar causes.
21. 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.
22. 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.
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?: . Entire Amement. This written instrument (together with any attachments, exhibits,
and appendices; constitutes the entire understanding between the Parties concerning the work
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 I day of 2009.
CITY OF FORT WORTH, TEXAS LOU WETHERBEE AND ASSOCIATES,LLC
Charles W. Daniels Louella V. Wetherbee
Assistant City Manager Member
Date Signed: Date Signed:
ATTEST: WITNESS:
FaVy Hendrix
City Secretary
APPROVED S TO FORM
AND LEG L
t
4t i '
Denis (!. Mc it y
Assistant C' y ttorney
No M&C Required
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
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