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4 Wd PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT("Agreement") is made and entered into by
and between the CITY OF FORT WORTH ("City"), 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 EMD CONSULTING GROUP, LLC ("Contractor"), a Missouri Limited
Liability Company. City and Contractor are each individually referred to as a "party" and collectively
referred to as the"parties." The term"Contractor"shall include Contractor, its officers,agents,employees,
representatives, contractors, or subcontractors. The term "City" shall include its officers, employees,
agents, and representatives.
WHEREAS, the City and Contractor previously entered into City Secretary Contract No. 45796,
by which Contractor assisted the City in recruiting and hiring a highly qualified individual to serve as the
Director for the Fort Worth Botanic Garden; and
WHEREAS, the City and Contractor previously entered into City Secretary Contract No. 47706,
by which Contractor provided the City with professional consulting services for a strategic planning study
for the Fort Worth Botanic Garden; and
WHEREAS, the City desires to have Contractor provide additional professional consulting
services for the Fort Worth Botanic Garden in furtherance of Contractor's previous work for the City;
NOW,THEREFORE,in considered of the covenants and agreements contained herein, City and
Contractor agree as follows:
AGREEMENT DOCUMENTS:
The Agreement documents shall include the following:
1. This Professional Services Agreement;
2. Exhibit A—Scope of Services; and
All Exhibits which are attached hereto and incorporated herein, are made a part of this Agreement
for all purposes. In the event of any conflict between the terms and conditions of the Exhibits and the terms
and conditions set forth in the body of this Agreement, the terms and conditions of this Agreement shall
control.
1. SCOPE OF SERVICES.
Contractor hereby agrees, with good faith and due diligence, to provide the City with research,
document review, preparation and public presentation services for the Strategic Planning Task Force
studying long term sustainability and governance issues at the Fort Worth Botanic Garden. Specifically,
Contractor will perform all duties outlined and described in the Scope of Services,which is attached hereto
as Exhibit "A" and incorporated herein for all purposes, and further referred to herein as the "Services."
Contractor shall perform the Services in accordance with standards in the industry for the same or similar
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services. In addition,Contractor shall perform the Services in accordance with all applicable federal,state,
and local laws, rules, and regulations.
2. TERM.
This Agreement shall begin on February 1, 2018, ("Effective Date")and shall expire on February
1,2019("Expiration Date"),unless terminated earlier in accordance with the provisions of this Agreement
or otherwise extended by the parties.
3. COMPENSATION.
City shall pay Contractor an amount not to exceed$5,000.00 in accordance with the provisions of
this Agreement and Exhibit "A". Contractor 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 Contractor not specified by this
Agreement unless the City first approves such expenses in writing. City agrees to pay all invoices of
Contractor in accordance with the applicable provisions of Chapter 2251 of the Texas Government Code.
4. TERMINATION.
4.1 Convenience. Either the City or Contractor may terminate this Agreement at any time and
for any reason by providing the other party with thirty(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
party,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 Contractor 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 prior
to the Expiration Date,the City shall pay Contractor for Services actually rendered up to the effective date
of termination and Contractor 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, Contractor shall provide the City with copies of all completed or partially completed
documents prepared under this Agreement. In the event Contractor has received access to City information
or data as required to perform the Services hereunder, Contractor shall return all City data to the City and
certify that all City data has been removed from Contractor's computers and other electronic devices.
5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION.
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5.1 Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made
full disclosure in writing of any existing or potential conflicts of interest related to Contractor's Services
under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this
Agreement,Contractor hereby agrees immediately to make full disclosure to the City in writing.
5.2 Confidential Information. The City acknowledges that Contractor may use products,
materials, or methodologies proprietary to Contractor. The City agrees that Contractor'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. Contractor, 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.
5.3 Unauthorized Access. Contractor 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.Contractor 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, Contractor
shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what
information has been accessed by unauthorized means and shall fully cooperate with the City to protect
such information from further unauthorized disclosure.
6. RIGHT TO AUDIT.
Contractor 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 at reasonable times any directly pertinent books,
documents, papers and records, including, but not limited to, all electronic records, of the Contractor
involving transactions relating to this Agreement at no additional cost to the City. Contractor agrees that
the City shall have access during normal working hours to all necessary Contractor 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 Contractor not less than ten (10) days written notice of any intended
audits.
Contractor further agrees to include in all its subcontractor agreements that are authorized by this
Agreement a provision to the effect that the subcontractor agrees that the City shall, until the expiration of
three(3)years after final payment of the subcontract, have access to and the right to examine at reasonable
times any directly pertinent books, documents, papers and records of such subcontractor involving
transactions related to the subcontract, and further that the City shall have access during normal working
hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to
conduct audits in compliance with the provisions of this paragraph. The City shall give subcontractor not
less than ten (10)days written notice of any intended audits.
7. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Contractor shall operate as an independent contractor as
to all rights and privileges granted herein and the Services performed under this Agreement, and not as an
agent, representative or employee of the City. Subject to and in accordance with the conditions and
provisions of this Agreement,Contractor 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, consultants and subcontractors. Contractor acknowledges that the doctrine of respondeat
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superior shall not apply as between the City, its officers, agents, servants and employees, and Contractor,
its officers, agents, employees, servants, contractors and subcontractors. Contractor further agrees that
nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and
Contractor. It is further understood that the City shall in no way be considered a Co-employer or a Joint
employer of Contractor or any officers, agents, servants, employees or subcontractors of Contractor.
Neither Contractor, nor any officers, agents, servants, employees or subcontractors of Contractor shall be
entitled to any employment benefits from the City. Contractor 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.
CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANYAND ALL PROPERTY
LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,INCLUDING DEATH, TO ANYAND
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 CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES
CONTRACTOR 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 CLAIMS OR LAWSUITS FOR EITHER
PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO
CONTRACTOR'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL
INJURY, INCLUDING DEATH, TO ANY AND 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 CONTRACTOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES
9. ASSIGNMENT AND SUBCONTRACTING.
Contractor 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 Contractor under which the assignee agrees
to be bound by the duties and obligations of Contractor under this Agreement.The Contractor and Assignee
shall be jointly liable for all obligations of Contractor under this Agreement prior to the assignment. If the
City grants consent to a subcontract,the subcontractor shall execute a written agreement with the Contractor
referencing this Agreement under which the subcontractor shall agree to be bound by the duties and
obligations of the Contractor under this Agreement as such duties and obligations may apply. Contractor
shall provide the City with a fully executed copy of any such subcontract.
10. INSURANCE.
10.1 Contractor shall carry the following insurance coverage with a company that is licensed to
do business in Texas or is otherwise approved by the City:
1. Commercial General Liability with a combined limit of not less than $1,000,000 per
occurrence.
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2. Automobile Liability Insurance with a combined limit of not less than $1,000,000 per
occurrence.
3. Professional Liability(Errors&Omissions)in the amount of$1,000,000 per claim and
$1,000,000 aggregate limit.
4. Statutory Workers' Compensation and Employers' Liability Insurance requirements
per the amount required by statute.
5. Any other insurance as required by the City.
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
non-payment of premium.Notice shall be sent to the Risk Manager, City of Fort
Worth,200 Texas Street,Fort Worth,Texas 76102,with a copy to the Fort Worth 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 the City's Risk Manager. If the rating is below that required,
written approval of the City's Risk Manager is required.
5. Any failure on the part of City to request required insurance documentation shall not
constitute a waiver of the insurance requirement.
6. Certificates of Insurance evidencing that the Contractor has obtained all required
insurance shall be delivered to the City prior to Contractor proceeding with any work
pursuant to this Agreement.
11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS.
Contractor agrees that in the performance of the Services and obligations under this Agreement, it
shall comply with all applicable federal, state and local laws,ordinances, rules and regulations. If the City
notifies Contractor of any violation of such laws, ordinances, rules or regulations, Contractor shall
immediately desist from and correct the violation.
12. NON-DISCRIMINATION COVENANT.
Contractor,for itself,its personal representatives,assigns,subcontractors and successors in interest,
as part of the consideration herein, agrees that in the performance of Contractor'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 CONTRACTOR, ITS PERSONAL
REPRESENTATIVES, ASSIGNS, SUBCONTRACTORS OR SUCCESSORS IN INTEREST,
CONTRACTOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND
DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM.
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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: To CONTRACTOR:
City of Fort Worth EMD Consulting Group,LLC
Attn: Ennis Anderson Attn: Richard Daley
3220 Botanic Garden Boulevard 140 Foothills Drive
Fort Worth,TX 76107 Hendersonville,NC 28792
Facsimile: (817)392-5539 Mobile: (828) 707-5863
With copies to the Fort Worth City Attorney and
the City Manager at:
200 Texas Street
Fort Worth,TX 76102
14. SOLICITATION OF EMPLOYEES.
Neither the City nor Contractor 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 an 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.Notwithstanding the foregoing,this
provision shall not apply to an employee of either party who responds to a general solicitation of
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 or immunities.
16. NO WAIVER.
The failure of the City or Contractor 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 Contractor's
respective right to insist upon appropriate performance or to assert any such right on any future occasion.
17. GOVERNING LAW/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 pursuant to 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.
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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 MAJEURE.
The City and Contractor 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, shall not be deemed a
part of this Agreement,and are not intended to define or limit the scope of any provision of this Agreement.
21. 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.
22. AMENDMENTS/MODIFICATIONS/EXTENSIONS.
No amendment, modification, or extension of this Agreement shall be binding upon a party hereto
unless set forth in a written instrument,which is executed by an authorized representative of each party.
23. ENTIRETY OF AGREEMENT.
This Agreement, including and exhibit attached hereto and any documents incorporated herein by
reference, contains the entire understanding and agreement between the City and Contractor, 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 representation in entering into this Agreement or any
amendment hereto.
25. COUNTERPARTS.
This Agreement may be executed 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
instrument. An executed Agreement,modification,amendment, or separate signature page shall constitute
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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 party's original signature is not delivered.
26. THIRD PARTY BENEFICIARIES.
The provisions and conditions of this Agreement are solely for the benefit of the City and
Contractor, and their lawful successors or assigns, and are not intended to create any rights, contractual or
otherwise,to any other person or entity.
27. SURVIVAL.
Section 4.4 (Duties and Obligations of Parties), Section 5 (Confidentiality), Section 6 (Right to
Audit), and Section 8 (Liability and Indemnification) shall survive termination of this Agreement.
28. IMMIGRATION NATIONALITY ACT.
Contractor shall verify the identity and employment eligibility of its employees who perform work
under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon
request by the City, Contractor shall provide the City with copies of all I-9 forms and supporting eligibility
documentation for each employee who performs work under this Agreement. Contractor shall adhere to
all Federal and State laws as well as establish appropriate procedures and controls so that no services will
be performed by any Contractor employee who is not legally eligible to perform such services.
CONTRACTOR SHALL INDEMNIFY THE CITYAND HOLD THE CITYHARMLESS FROMANY
PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY
CONTRACTOR, CONTRACTOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR
LICENSEES. The City, upon written notice to Contractor, shall have the right to immediately terminate
this Agreement for violations of this provision by Contractor.
29. PROHIBITION ON BOYCOTTING ISRAEL.
Contractor acknowledges that in accordance with Chapter 2270 of the Texas Government Code,
the City is prohibited from entering into a contract with a company for goods or services unless the contract
contains a written verification from the company that it: (1)does not boycott Israel;and(2)will not boycott
Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings
ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Agreement,
Contractor certifies that Contractor's signature provides written verification to the City that Contractor.
(1) does not boycott Israel, and(2) will not boycott Israel during the term of this Agreement.
30. OWNERSHIP OF WORK PRODUCT.
The City shall be the sole and exclusive owner of all reports,work papers,procedures,guides, and
documentation, created, published, displayed, and/or produced in conjunction with the Services provided
under this Agreement (collectively, "Work Product"). Further, the 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,
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Contractor hereby expressly assigns to the 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.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this
day of ,20�.
CITY OF FORT WORTH: CONTRACTOR:
EMD CONSULTING GROUP,LLC
Sus anis Ricaley
Assistant City
2M, nager Partner
Date: / Date:
APPROVAL RECOMMENDED: ATTEST:
Ric rd Zavala
Dire tor, Park and Recreation Department Name:
Title:
APPROVED AS TO FORM AND LEGALITY:
Richard A. McCracken
Assistant City Attorney
CONTRACT AUTHORIZATION: CITY'S CONTRACT COMPLIANCE
MANAGER:
M&C: N/A By signing I acknowledge that I am the person
Date: responsible for the monitoring and administration
Form 1295: N/A of this contract, including ensuring all
performance a requirements.
ATTEST:
'� �. Ennis Anderson
V- F®��. Garden Center Coordinator
Mary J. Kay
City Secretary V;' -:0
* ;U
OFFICIAL RECORD
�kAS CITY SECRETARY
FT. WORTH,TX
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EXHIBIT A
SCOPE OF SERVICES
EMD Consulting will provide the City with research, document review, preparation and public
presentation services for the Strategic Planning Task Force studying long term sustainability and
governance issues at the Fort Worth Botanic Garden. These services build on previous work with the City
of Fort Worth in researching and preparing Strategic Planning Reports for the Garden received by City
Council in November, 2016. EMD will also provide consultation to staff on information and
recommendations that emerges from the task force process.
Services to include preparation, review of staff goals and approach to presenting necessary information,
and one task force presentation on the Strategic Plan. In addition, up to 10 hours of additional review of
documents and consulting time on the task force project in response to member and staff questions.
Base Services $3,500.00
Expenses $1,500.00
Total amount not to exceed: $5,000.00
LEGAL NAME OF ENTITY
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