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HomeMy WebLinkAboutContract 47693 City Secretary Contract No. .f FORT WORTH., PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City" or "Client"), a home- rule municipal corporation situated in portions of Tarrant, Denton, Johnson and Wise Counties, Texas, acting by and through its duly authorized Assistant City Manager, and THE AZIMUTH GROUP, INC. ("Consultant" or "AGI"), Texas corporation, and acting by and through David W. Eisenlohr its duly authorized President. City and Consultant are each individually referred to herein as a "party" and collectively referred to as the "parties." The term "Consultant" shall include the Consultant, its officers, agents, employees, representatives, contractors or subcontractors. The term "City" shall include its officers, employees, agents, and representatives. 1. Scone of Services. 1.1 Services. Consultant hereby agrees, with good faith and due diligence, to provide the City with professional consulting services for the facilitation of a strategic planning workshop for the senior management executive staff(includes city manager, assistant city managers and department directors). Specifically, Consultant will perform all duties outlined and described in the Statement of Work, which is attached hereto as Exhibit "A" and incorporated herein for all purposes, and further referred to herein as the "Services." Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Consultant shall perform the Services in accordance with all applicable federal, state, and local laws, rules, and regulations. If there is any conflict between this Agreement and Exhibit A, the terms and conditions of this Agreement shall control. 1.2 Implementation Decisions. City acknowledges and agrees that the Services provided by Consultant are only advisory in nature. City further acknowledges and agrees that the City shall be responsible for making implementation decisions, if any, and determining subsequent courses of action with respect to any matters addressed in the Services. City agrees to accept responsibility for any and all implementation decisions and other actions taken to effect the adoption or execution of recommendations identified and developed through the Services. Absent fraud, malfeasance, professional malpractice, or negligence on the part of Consultant, its officers, agents, or employees, Consultant shall not be liable for damages arising from any implementation decision or other action taken to effect the ado tion or execution of Consultant's recommendations. rOFFICIAL RECORD SECRETA�The Azimuth Group,Inc. ul Professional Services Agreement Page 1 of 12 Rev.04/2015 City Secretary Contract No. 2. Term. This Agreement shall commence upon execution by both parties ("Effective Date") and shall expire no later than May 31, 2016 ("Expiration Date"), unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. This Agreement may be renewed for up to three additional one year terms at the City's option or upon mutual written consent of the parties. 3. Compensation. The City shall pay Consultant the fixed professional services fee of$6,500 in accordance with the provisions of this Agreement. In addition to the fixed fee for professional services, Consultant will bill the City of Fort Worth for the actual cost of direct out of pocket expenses for such usual and customary items as mileage, per diem, postage and delivery charges, workshop supplies and technology support. The total compensation for this Agreement shall not exceed $8,000.00, inclusive of the professional services fee plus expenses. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. City agrees to pay all invoices of Consultant within thirty (30) days of receipt of such invoice. Consultant may charge interest on late payments not to exceed one percent(1%). 4. Termination. 4.1. Convenience. Either the City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 Breach. If either party commits a material breach of this Agreement, the non-breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten (10) calendar days after receipt of notice from the non-breaching parry, or other time frame as agreed to by the parties.,If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under this Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. 4.3 Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, the City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.4 Duties and Obligations of the Parties. In the event that this Agreement is terminated The Azimuth Group,hic. Professional Services Agreement Page 2 of 12 Rev.04/2015 City Secretary Contract No. prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City and certify that all City data has been removed from Consultant's computers and other electronic devices. 5. Disclosure of Conflicts and Confidential Information. 5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential 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 and employees, agrees that it shall treat all information provided to it by the City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Notwithstanding anything in this Agreement to the contrary, neither party shall have an obligation of confidentiality with respect to information that (i) is or becomes part of the public domain through no act or omission of that party; (ii) was in the party's lawful possession prior to the disclosure and had not been obtained by the disclosing party either directly or indirectly from the other party; (iii) is lawfully disclosed to the party by a third party without restriction on disclosure; (iv) is independently developed by the disclosing party without use of or reference to the other party's confidential information; or (v) is required to be disclosed by law or judicial, arbitral or governmental order or process, provided the disclosing party gives the other party prompt written notice of such requirement to permit that party to seek a protective order or other appropriate relief. 5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by The Azimuth Group,Inc. Professional Services Agreement Page 3 of 12 Rev.04/2015 City Secretary Contract No. unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. Right to Audit. Consultant agrees that the City shall, during and until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Agreement at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant not less than 10 days written notice of any intended audits. 7. Independent Contractor. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. . It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 8. Liability and Indemnification. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL The Azimuth Group,Inc. Professional.Services Agreement Page 4 of 12 Rev.04/2015 City Secretary Contract No. CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANYAND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. Assignment and Subcontracting. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations 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. 10. Insurance. 10.1 The Consultant shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: 1. Commercial General Liability with a combined limit of not less than $1,000,000 per occurrence, $2,000,000 aggregate. 2. Automobile Liability Insurance with a combined limit of not less than $1,000,000 per occurrence, $2,000,000 aggregate. 3. Professional Liability (Errors & Omissions) in the amount of$1,000,000 per claim and $2,000,000 aggregate limit. 4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. 5. Any other insurance reasonably required by City to protect its interest. ` 10.2 General Insurance Requirements: 1. All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. 2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. 3. A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of The Azimuth Group,Inc. Professional Services Agreement Page 5 of 12 Rev.04/2015 City Secretary Contract No. non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. 5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 6. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. 11. Compliance with Laws, Ordinances,Rules and Regulations. Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 12. Non-Discrimination Covenant. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. Notices. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: TO THE CITY: City of Fort Worth With Copy to the City Attorney Attn: Lynda Johnson at same address 1000 Throckmorton Fort Worth TX 76102 Facsimile: (817) 392-2420 The Azimuth Group,Inc. Professional Services Agreement Page 6 of 12 Rev.04/2015 City Secretary Contract No. TO CONSULTANT: The Azimuth Group, Inc. Attn: David W. Eisenlohr 6611 Hillcrest Ave. Suite 441 Dallas, TX 75205 Facsimile: (214) 987-0919 14. Solicitation of Employees. Neither the City nor Consultant shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the person's employer. This provision shall not apply to an employee who responds to a general solicitation or advertisement of employment by either party. 15. Governmental Powers. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. No Waiver. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. Force Maieure. The Azimuth Group,Inc. Professional Services Agreement Page 7 of 12 Rev.04/2015 City Secretary Contract No. The City and Consultant shall exercise their best efforts to meet their.respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. 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. 21. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting parry shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. Amendments. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, and duly executed by an authorized representative of each party. 23. Entirety of Agreement. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. Signature Authority. The person signing this Agreement, and any amendment hereto, hereby warrants that he/she has the legal authority to execute this Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 25. Counterparts. The Azimuth Group,Inc. Professional Services Agreement Page 8 of 12 Rev.04/2015 City Secretary Contract No. This Agreement may be executed in in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each parry's original signature is not delivered. 26. Third Partv Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and Consultant, and their lawful successors or assigns, and are not intended to create any rights, contractual or otherwise,to any other person or entity. 27. Ownership of Work Product. City shall be the sole and exclusive owner of all training materials, procedure manuals, guides, and documentation, created, published, displayed, and/or produced in conjunction with the Services provided under this Agreement, collectively, "Work Product." Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of the City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Consultant hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that the City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of the City. Consultant's work papers shall remain the sole and exclusive property of Consultant. "Work papers" shall mean those documents prepared by Consultant during the course of performing Services including, without limitation, schedules, analyses, transcriptions, memos and working notes that serve as the basis for or to substantiate the Services. In addition, Consultant shall retain sole and exclusive ownership of its know-how, concepts, techniques, methodologies, ideas, templates, and tools that existed prior to the performance of Services hereunder. 28. Survival. Section 5 (Confidentiality), Section 6 (Right to Audit), Section 8 (Liability and Indemnification), and Section 27 (Ownership of Work Product) shall survive termination of this Agreement. [SIGNATURE PAGE FOLLOWS] The Azimuth Group,Inc. Professional Services Agreement Page 9 of 12 Rev.04/2015 City Secretary Contract No. Executed in multiples this the lq -day of ZlxZ , 20/� . AGREED: AGREED: CITY OF FORT WORTH: TH ZIMUT N By: By: I Sus4 Al is David W. Eisenl hr Assist nt ity Manager President Date: `'= Date: 6 e " ° ATTES STTEST: ) By: o`� y: ��6L� � Ma J. Kay X45_. °° �°G° Shelley L. Eisenlo City Secretary " u'' Secretary/Treasurer APPROVED O FORM AND LEGALITY: B • Maleshia B. tarmer Senior Assistant City Attorney CONTRACT AUTHORIZATION: M&C: Not Required Date Approved: oc!F ICUI�L REC®R® CITY SECRETARY �T, WORTHO TX The Azimuth Group,Inc. Professional Services Agreement Page 10 of 12 Rev.04/2015 City Secretary Contract No. EXHIBIT A STATEMENT OF WORK Objectives The objectives of the senior management staff planning workshops include: • Engagement of the management team in open and honest communication about emerging strategic issues, opportunities and challenges. • Development and/ or validation of a set of strategic themes that will help the City's policy leaders focus less on the immediate tactical needs of the community and more on the overarching, futuristic opportunities. • Building a more cohesive management team through shared understanding, commitment and buy-in to a more future oriented way of thinking and behaving. • Providing a foundation for the city staff's articulation of its operational, priorities and to provide them with a more comprehensive appreciation for the larger issues that may challenge them in the future. Scope of Services • Confer with the City Manager and designated staff to validate the scope, desired end state and deliverables of the senior management staff planning workshop. • Collect and review pertinent internal background documents, issue papers, studies, etc. to assist in the development of a workshop plan and agenda. • Based on the input received from senior city leadership, the review of background materials, design and plan a one-half day strategic planning session for the city's department directors and executive team. • Review the proposed planning session agenda and activities with the City Manager, Assistant City Manager and Chief Performance Officer and revise as necessary. • Develop required management staff workshop activities, exercises and materials. • Lead and facilitate a series of activities and discussions with the management staff to communicate the results and implications of the City Council's strategic priorities, propose additions and/or clarifications of those priorities from the staff's administrative and operational perspectives. • Prepare a written summary of the management workshop results and develop recommendations for further follow-up as needed. • Make a formal public presentation of the workshop results and recommendations as requested. The Azimuth Group,Inc. Professional Services Agreement Page 11 of 12 Rev.04/2015 k City Secretary Contract No. Deliverables AGI will provide a high-level written report summarizing the conclusions reached and decisions resulting from the management staff workshop. The report will be in the form of a narrative and bulleted list summary and will include compilations and graphical depictions, where appropriate, of the management team's findings and conclusions. City Responsibilities The City of Fort Worth will provide the following personnel and logistical support for this project: • The City will assign a staff member as the main point of contact for the planning and coordination of the workshop session. This individual will be responsible for the assembly of any requested documents and other background material, coordination of all workshop logistics, scheduling of any meetings or conference calls necessary and providing general logistical support of the process. • The City will work with AGI to make such technical arrangements for presentation projection / display, session recording, etc. that may be required. The workshop room will include required facilities and equipment including, at a minimum, a projector, power availability and projection screen. • The City will provide and pay directly for required meeting rooms, room setups, food and beverage and other facilities and services required to support the workshops. • AGI will deliver one reproducible and one electronic copy in PDF format of the final session summary reports. The City will be responsible for the reproduction and distribution of this document as needed. The Azimuth Group,hic. Professional Services Agreement Page 12 of 12 Rev.04/2015