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HomeMy WebLinkAboutContract 32787 (2) CITY SECRETARY �JQ CITY OF FORT WORTH,TEXAS CONTRACT NO. /U 7 AND YMCA OF METROPOLITAN FORT WORTH,INC. AGREEMENT FOR CONSULTING SERVICES This AGREEMENT is between the City of Fort Worth (the "City"), a home rule municipal corporation of the State of Texas, located in Tarrant, Denton and Wise Counties, Texas, YMCA of Metropolitan Fort Worth, Inc. (YMCA), a legally constituted Texas non-profit corporation, and The Winfield Consulting Group,Inc. (the"Consultant"), a for-profit corporation Article I Project The scope of the Project is to conduct studies to determine if the YMCA of Metropolitan Fort Worth should expand the existing Clark Nowlin YMCA or in collaboration with the City of Fort Worth build a new full-facility three miles north on City park property known as North Park. Article H Project Schedule and Scope of Services A. The Consultant will present the City and the YMCA with initial findings on the Project by December 29`h and a final report by January 27,2006. B. The scope of services and study determinations are as follows: 1. The study shall answer the following questions related to demand: a. How the YMCA of Fort Worth can continue to serve the residents with a wide variety of programs and services for children, teens, and adults of all ages at the existing facility. b. The number of new additional households that would have a great deal of interest in joining an expanded Clark Nowlin YMCA. c. The potential revenue generated from new membership units within the first 15-18 months d. The demographic and psychographic profile of prospective members 2. The study will determine if the current Clark Nowlin YMCA or a new full-facility located three miles north on City park property will be viewed as the most convenient by the majority of prospective members? 3. The study will determine, through both qualitative and quantitative research, the following: 1) which configuration of programming options and new major facility features for an expanded Clark Nowlin YMCA or a new full-facility Center will attract the highest number of membership units; 2) if the YMCA must be expanded in phases; 3) and if expanded in phases, which configuration of major features needs to be included in Phase I to ensure sufficient annual operating income to pay for the additional operating costs resulting from the expansion. Proposed features and features based on national trends that will be studied will include, but are not limited to,the following: 9,MCIA 5C cls � � Programming and Facilities for Adults and Children: a) Segmented aquatics facilities, including: i. a warm-water pool with water playground features for recreational swimming, therapeutic exercise,and instruction; ii. a separate cool-water lap pool for lap swimming and competition; iii. whirlpool, sauna, and steam room facilities; and iv. an indoor cool water pool for competition and lap swimming b) Expansion or new segmentation of the comprehensive adult fitness center,which could offer a wide variety of new cardiovascular and muscle-strengthening activities; c) Expanded or new first-class studio for aerobics, dance and adult exercise; d) New services for adults and seniors,ranging from cardiovascular,weight management, and exercise programs specifically for women,to new aquatic-based orthopedic rehabilitation services in conjunction with local medical centers; e) Separate workout space for women; f) Indoor and outdoor walking and running programs and facilities; and g) Gymnasium for pick-up games and sports leagues and a variety of indoor sports Programming and Facilities for Children: a) Creatively-designed spaces for child care programs from infant care to preschool b) Expanded or new facilities for a variety of after-school sports and recreation programs for younger children and adolescents, from martial arts,to sports leagues, to programs in art, dance,and music c) A fitness and adventure center designed and programmed specifically for teens that could offer kickboxing,a teen-run YMCA radio station,and conditioning for sports d) Expanded or new facilities for summer day camps,from traditional camp with crafts and swimming to theme-based camps like sports camp and arts camp e) A field house for activities that promote family recreation, such as climbing towers, high ropes,and indoor skating rinks and ramps f) A youth center for educational programs such as tutoring,learning how to use a computer, and leadership classes Article III Qualitative and Quantitative Research A. Qualitative Research Step I. The client will designate a strategic planning team consisting of three to five members to work with the consultant. Step 11. The consultant will conduct secondary research to conceptualize the needs,propose the targeted survey boundaries,and audit providers of similar services. Step III. The consultant will conduct telephone interviews with a total of 200 current members of the Clark Nowlin YMCA to determine their location preference. Step IV. The consultant will conduct a focus group with people interested in an expanded Clark Nowlin YMCA or a new full-facility Center, including: • appropriate representatives of the Board of Directors of the YMCA of Metropolitan Fort Worth • appropriate representatives from the Parks&Community Service Department of the City of Fort Worth • appropriate representatives of other community leaders and/or potential partners, who are interested in expanding the facility • key staff members of the YMCA of Metropolitan Fort Worth B. Quantitative Research Step I. The consultant will develop the survey instrument based on focus groups, market audits, exploratory interviews, and national trends identified by the consultant and field-test the instrument for the appropriateness of the questions, the chronology, and the language. Step U. The consultant will review the survey instrument with the strategic planning team word- by-word, issue-by-issue, along with all other aspects of the survey. While the actual survey instrument remains proprietary to the Consultant, the design of the survey will be unique and approved by the client. Step M. The Consultant will conduct in-depth telephone interviews with a total of 600 randomly selected households that live in the area but do not belong to a YMCA. Please note that this is the number of completed interviews. Article IV. Data Collection,Analysis,Interpretation,and Presentation Step I. The Consultant will develop software and tabulate all findings. Step I1. The Consultant will deliver the initial findings via conference call and discuss the presentation of the final report. Step III. The Consultant will present the written final report, providing analysis and making specific recommendations. The report will answer all questions set forth in this proposal, including: • Forecast new membership units during the first 15-18 months of the operation; • Anticipated revenues generated from annual memberships; • Specific suggestions for programming and pricing strategies; and • Specific suggestions for facility size and major features This process will provide findings with a 95% confidence level and a statistical error of plus or minus 4.0%. The parties agree that the survey instrument is intellectual property owned by The Winfield Consulting Group and as such cannot be distributed outside the company under any circumstances. However, the City and the YMCA shall have full ownership of the study findings and the final report and can choose to circulate them at its own discretion. -3- Article IV. Compensation The Consultant's compensation shall be as follows: $20,000 in professional fees and$5,000+1-20%in out-of-pocket expenses total cost for the study. The cost includes ten (10) bound copies of the final report as well as an Adobe Acrobat file of the report. This will allow you to make additional copies of the report for immediate distribution or for future use,such as in fundraising efforts.Additional bound copies of the report are available at cost. The City and the YMCA shall share equally in the costs of the Compensation paid to the Consultant Article VI. Terms of Payment In accordance with our payment procedure, fifty (50%) percent of the professional fee is due at the inception of the project,along with a fifty(50%)percent advance on out-of-pocket expenses. Twenty-five (25%) percent of the professional fee will be paid upon delivery of initial findings and the remaining 25%of the professional fee and the balance of out-of-pocket expenses will be billed in the final invoice,provided the Consultant provides the following: A. Invoices and Payment 1. The Consultant shall provide the City and YMCA sufficient documentation to reasonably substantiate the invoices. 2. Invoices will be issued by the Consultant for all work performed under this Agreement. Invoices shall be based upon the percent completion for each task. Invoices are due and payable within 30 days of receipt. 3. Upon completion of services enumerated in Article I, the final payment of any balance will be due within 30 days of receipt of the final invoice. 4. In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The City and YMCA will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. 5. If the City or YMCA fails to make payment in full to the Consultant for billings contested in good faith within 60 days of the amount due, the Consultant may, after giving seven (7) days' written notice to City and YMCA, suspend services under this Agreement until paid in full, including interest. In the event of suspension of services, the Consultant shall have no liability to City or the YMCA for delays or damages caused the City and the YMCA because of such suspension of services. 4- C,fly 6KEIRETAIF FT. .SIN, TOKS Article VII Obligations of the Consultant A. General The Consultant will serve as the City and YMCA's consulting representative under this Agreement, providing professional consultation and advice and furnishing customary services incidental thereto. B. Standard of Care The standard of care applicable to the Consultant's services will be the degree of skill and diligence normally employed in the State of Texas by professional engineers or planning consultants performing the same or similar services at the time such services are performed. C. Preparation of Drawings The Consultant will provide to the City and YMCA the original study findings and the final report of all plans on disks, or as otherwise approved by City and YMCA, which shall become the property of the City and the YMCA. City or the YMCA may use such study findings and the final report in any manner it desires;provided,however,that the Consultant shall not be liable for the use of such study findings and the final report for any project other than the Project described herein. D. Right to Audit 1. Consultant agrees that the City and the YMCA will have the right to audit the financial and business records of the Consultant that relate to this Project] (collectively "Records") at any time during the Term of this Agreement and for one (1) year thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for one (1)year thereafter, Consultant shall make all Records available to the City and the YMVA at a location in the City acceptable to all parties following reasonable advance notice by the City and the YMCA and shall otherwise cooperate fully with the City and YMCA during any audit. Notwithstanding anything to the contrary herein, this Section shall survive expiration or earlier termination of this Agreement 2. Consultant further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant agrees that the City and/or YMCA shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that the City and/or YMCA shall have access during normal working hours to all necessary subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article together with subsection (3) hereof. City and/or YMCA shall give subconsultant reasonable advance notice of intended audits. 3. Consultant and subconsultant agree to photocopy such documents as may be requested by the City or the YMCA. The City and YMCA agrees to reimburse Consultant for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. OFF10AL RECORD My ffir-Affily -s- FT, WORTH, fix. E. Consultant 's Insurance 1. Insurance coverage and limits: Consultant shall provide to the City a certificate(s)of insurance documenting policies of the following coverage at minimum limits, which are to be in effect prior to commencement of work on the Project: Commercial General Liability $1,000,000 each occurrence $1,000,000 aggregate Automobile Liability $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Coverage shall be on any vehicle used in the course of the PROJECT. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease—policy limit $100,000 disease—each employee 2. Certificates of insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with the Project. (a) This policy shall include broad form contractual coverage and must name the City and the YMCA an additional insured parties. The term City and YMCA shall include its employees, officers,officials, agents, and volunteers as respects the contracted services. (b) Certificate(s) of insurance shall document that insurance coverages specified according to items section G.(1) and G.(2) of this Agreement are provided under applicable policies documented thereon. (c) Any failure on part of the City or the YMCA to request required insurance documentation shall not constitute a waiver of the insurance requirements. (d) A minimum of thirty (30) days notice of cancellation, non-renewal or material change in coverage shall be provided to the City and the YMCA. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Consultant's Insurance policies. Notice shall be sent to the City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102 and the to YMCA of Metropolitan Fort Worth, 76102. (e) Insurers for all policies must be authorized to do business in the State of Texas or be otherwise approved by the City and the YMCA; and, such insurers shall be acceptable to the City and the YMCA in terms of their financial strength and solvency. (f) Deductible limits, or self insured retentions, affecting insurance required herein may be acceptable to the City and the YMCA at its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention -6- groups must be also approved. Dedicated financial resources or letters of credit may also be acceptable to the City and the YMCA. (g) Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City and the YMCA as respect to the Project. (h) The City or the YMCA shall be entitled, upon its request and without incurring expense, to review the Consultant's insurance policies including endorsements thereto and, at the City or YMCA's discretion, the Consultant may be required to provide proof of insurance premium payments. (i) The Commercial General Liability insurance policy shall have no exclusions by endorsements unless such are approved by the City. 0) The City shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of Consultant's overhead. (k) All insurance required in Section G., except for the Professional Liability insurance policy, shall be written on an occurrence basis in order to be approved by the City. Subconsultants to the Consultant shall be required by the Consultant to maintain the same or reasonably equivalent insurance coverage as required for the Consultant. When insurance coverage is maintained by subconsultants, Consultant shall provide City with documentation thereof on a certificate of insurance. Notwithstanding anything to the contrary contained herein, in the event a subconsultant's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by Consultant of the Agreement. F. Disclosure The Consultant acknowledges to the City and the YMCA that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed Project and business relationships with abutting property owners. The Consultant further acknowledges that it will make disclosure in writing of any conflicts of interest, which develop subsequent to the signing of this contract and prior to final payment under the contract. Article IX. Obligations of the City and YMCA A. City and YMCA Furnished Data The City and YMCA will make available to the Consultant all relevant and/or technical data in the City or YMCA's possession relating to the Consultant's services on the Project. The Consultant may rely upon the accuracy, timeliness, and completeness of the information provided by the City and the YMCA. B. Prompt Notice uFfICIA'A END -7- GINTY 6§UfflAy The City and YMCA will give prompt notice to the Consultant whenever City or YMCA observes or becomes aware of any development that affects the scope or timing of the Consultant's services or of any defect in the work of the Consultant. C. Changes The City and YMCA may make or approve changes within the general Scope of Services in this Agreement. If such changes affect the Consultant's cost of or time required for performance of the services, an equitable adjustment will be made through an amendment to this Agreement with appropriate City and YMCA approval. Article X General Legal Provisions A. Authorization to Proceed Consultant shall be authorized to proceed with this Agreement upon execution of this Agreement by all parties. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the Consultant, whether in hard copy or in electronic form, are instruments of service for this Project, whether the Project is completed or not. Reuse, change, or alteration by the City or the YMCA or by others acting through or on behalf of the City or the YMCA of any such instruments of service without the written permission of the Consultant will be at the City's sole risk. The City and the YMCA shall jointly own the final designs,drawings, specifications and documents. C. Force Majeure It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same,regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. D. Fiscal Funding Out. If for any reason, at any time during any term of this Agreement, the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of(i)thirty (30) days following delivery by the City to [other party] of written notice of the City's intention to terminate or(ii)the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. E. Termination -8- 1. This Agreement may be terminated by the City or the YMCA for convenience on 30 days' written notice. This Agreement may be terminated by either the City, the YMCA or the Consultant for cause if either party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance within five (5) days of written notice and diligently complete the correction thereafter. 2. If this Agreement is terminated for the convenience of the City or the YMCA, the Consultant will be paid for termination expenses as follows: (a) Cost of reproduction of partial or complete studies, plans, specifications or other forms of Consultant's work product; (b) Out-of-pocket expenses for purchasing storage containers, microfilm, electronic data files, and other data storage supplies or services; (c) The time requirements for the Consultant's personnel to document the work underway at the time the City's termination for convenience so that the work effort is suitable for long time storage. (1) Prior to proceeding with termination services,the Consultant will submit to the City and the YMCA an itemized statement of all termination expenses. The City and YMCA's approval will be obtained in writing prior to proceeding with termination services. F. Suspension,Delay,or Interruption to Work The City or the YMCA may suspend, delay, or interrupt the services of the Consultant for the convenience of either the City or the YMCA. In the event of such suspension, delay, or interruption, an equitable adjustment in the Project's schedule, commitment and cost of the Consultant's personnel and subcontractors,and Consultant's compensation will be made. G. Indemnification CONSULTANT AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY AND THE YMCA, ITS RESPECTIVE OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND 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 MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) CONSULTANT'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS(OTHER THAN THE CITY OR THE YMCA) OR SUBCONTRACTORS, RELATED TO THIS PROJECT OR THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY 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 AND YMCA, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED ASA WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITYAS FURTHER PROVIDED BY THE LAWS OF TEXAS. -9- f H. Independent Contractor It is expressly understood and agreed that Consultant shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Consultant shall have the exclusive right to control all details and day-to-day operations relative to the this Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Consultant acknowledges that the doctrine of respondeat superior will not apply as between the City, YMCA and Consultant, its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Consultant further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City, YMCA and Consultant. I. Assignment Consultant may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any party without the prior written consent of the City and the YMCA, which consent shall not be unreasonably withheld or delayed, conditioned on (i)the prior approval of the assignee or successor and a finding by the City Council and the YMCA that the proposed assignee or successor is financially capable of completing the Project and (ii) the proposed assignee or successor has executed a written agreement with the City and the YMCA under which it agrees to assume all covenants and obligations of Consultant under this Agreement, in which case such assignee or successor shall thereafter be deemed the "Consultant" for all purposes under this Agreement. J. Jurisdiction If any action,whether real or asserted, at law or in equity, arises on the basis of any provision 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. This Agreement shall be construed in accordance with the laws of the State of Texas. K. Severability and Survival If any provision of this Agreement shall be 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. All insurance and indemnity provisions shall survive termination of this Agreement for any cause. L. Contract Construction In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably,and neither more strongly for or against any party,regardless of the actual drafter of this Agreement. M. No Third-Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City, the YMCA and the Consultant and any lawful assign or successor of the City, the YMCA and the i � t Consultant, and are not intended to create any rights, contractual or otherwise, to any other person or entity. N. Compliance This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. O. Notices Any notice provided for or permitted under this MW Sub-sublease shall be made in writing and may be given or served by (i) delivering the same in person to the party to be notified, or(ii) depositing the same in the mail, postage prepaid, certified with return receipt requested, and addressed to the party to be notified, or (iii) sending by telecopy, with a copy thereof sent by registered mail on the same day. If notice is deposited in the mail pursuant to (ii) or (iii) of this Section 22, it will be effective upon receipt or refusal. For the purpose of notice, the addresses of the parties are, until changed as provided below,as follows: If to Qiw. City of Fort Worth 1000 Throckmorton Street Fort Worth,Texas 76102 Attention: Director of Parks and Community Services Telephone: 817-871-5704 Telecopy: 817-871-5724 If to YMCA: YMCA of Metropolitan Fort Worth, Inc. 540 Lamar Street Fort Worth,Texas Attn: Telephone: Telecopy: If to Consultant: The Winfield Consulting Group,Inc. 1649 North Decatur Road Atlanta,Georgia 30307 Telephone: 404-888-0530 Telecopy: 404-881-9860 However, the parties may from time to time change their respective addresses, and each shall have the right to specify as its address any other address upon at least ten (10) days written notice to the other party P. Governmental Powers. ROD -��- FT. 'W"09UH, TEN, It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. Q. Relationship: Neither City nor YMCA or Consultant shall be construed, by virtue of this Agreement, to be the agent,partner,joint venturer,or associate of the other. R Entire Agreement. This Agreement, including its attachments and schedules, constitutes the entire Agreement, supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. %iTi -�r ri"KT WORTH ATTEST: by Watso City Secretary Assistant City Manager Approved as to Form and Legality NO M&C REQUIRED Assistant Ci Attorney YMCA OF METROPOLITAN FORT WORTH,INC. By• P ent THE WINFIELD CONSULTING GROUP,INC. ) ,'J"IT" By: Obi President -12- CSR 1910 S��U rt. � TEX.