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HomeMy WebLinkAboutContract 35970 CITY SEETARY CON RACT NO3,�WO AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT ("Agreement") is made and entered into between THE CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas ("City"), acting by and through Karen L. Montgomery, its duly authorized Assistant City Manager, and NIA Consulting, a Texas professional corporation ("Consultant"), acting by and through Dr. Pamela Johnson, its duly authorized representative. RECITALS WHEREAS, Consultant provides professional consultant and facilitation services; and WHEREAS, City is in need of professional consultant and facilitation services to assist City in delivering leadership training; and WHEREAS, City and Consultant desire to enter into a contract to have such services provided which benefit City. NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: AGREEMENT 1. Services. Consultant covenants and agrees to fully perform, or cause to be performed, with good faith and due diligence, all objectives described in Exhibit "A", attached and incorporated herein for all purposes incident to this Agreement ("Services"). 2. Term. Services shall be provided by Consultant for a term beginning October 29, 2007 and ending when City determines the Services are complete, or December 1, 2008, whichever occurs first. t 3. Fee. In consideration of the Services to be performed hereunder by Consultant, City promises and agrees to pay Consultant an amount not to exceed Twenty-four Thousand Dollars ($24,000) ("Fee"). The Fee shall be compensation for all Services. Payment from City to Consultant shall be made on an invoice basis following receipt by City from Consultant of a signed invoice. The invoice shall be submitted to City no later than the 151h day following the end of the month. 4. Termination. Either party may cancel this Agreement at any time and for any reason by providing the other party 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 Service actually rendered 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, subcontractors and program participants. The doctrine of respondeat superior shall not apply as between the City and Consultant, its officers, agents, servants, employees, subcontractors, or program participants, and 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, employee, or subcontractor of Consultant is in the paid service of City. 6. Indemnification. CONSULTANT COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND,AT ITS OWN EXPENSE, CITY AND ITS OFFICERS,AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS 2 AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS OF CITY; AND CONSULTANT HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED,ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN, WHETHER OR NOT CAUSED IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS,AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY. CONSULTANT LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF CONSULTANT, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS,AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY. CONSULTANT AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE INJURY, DEATH, DAMAGE OR LOSS IS CAUSED BY CITY'S SOLE OR CONCURRENT NEGLIGENCE. 3 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 6 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 7 as well as any and all other public risks related to Consultant's performance of its obligations under this Agreement. Consultant shall specifically obtain the following types of insurance at the following limits: • Commercial General Liability: $1,000,000 per occurrence; providing blanket contractual liability insurance products and completed operations; independent contractor's liability; and coverage for property damage to City facilities; and • Automobile Liability: $1,000,000 per occurrence or accident; including, but not limited to, all vehicles, whether owned or hired, in use by Consultant, its employees, agents or subcontractors; and + Worker's Compensation/Employer's Liability: Worker's compensation coverage as required by applicable law; and Employer's Liability at $100,000 per accident. • Errors & Omissions (Professional Liability): If coverage is written on a claims-made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement. The certificate of insurance shall state that the coverage is claims-made and include the retroactive date. The 4 insurance shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence coverage. Coverage shall be in the following amounts: (1) $1,000,000 per occurrence or claim (2) $2,000,000 aggregate 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 which such requests or revisions as a condition precedent to the effectiveness of this Agreement. 8. Assijznnient. 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, and any attempted assignment of subcontract of same without such prior written approval shall be void and constitute a breach of this agreement. 9. Compliance with Law. Consultant, its officers, agents, 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, employees or subcontractors, then Consultant shall immediately desist from and correct such violation. 10. Non-Discrimination. Consultant, in the execution, performance or attempted performance of this contract and Agreement, will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color or national origin, nor will Consultant permit its officers, agents, employees, or subcontractors to engage in such discrimination. 5 This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and Consultant hereby covenants and agrees that Consultant, its 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 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 paragraph. City shall give subcontractor reasonable advance notice of intended audits. This Section 11 shall survive the expiration or termination of this Agreement. 12. Fiscal Funding. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 6 13. Entire Agreement. This written instrument constitutes the entire agreement by the parties hereto concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement, which purports to vary from the terms hereof shall be void. 14. Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. 15. Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand-delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below: Karen L. Montgomery (Consultant Name& Address) Assistant City Manager/CFO Dr. Pamela Johnson City of Fort Worth NIA Consulting 1000 Throckmorton Street 5435 N. Garland Avenue Fort Worth, Texas 76102 Suite 140, PMB-201 Garland TX 76040 (817) 392-6222 (972) 494-9497 16. Non-Waiver. The failure of City or Consultant 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 District's right to assert or rely upon any such term or right on any future occasion. 17. 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 and proposed services with respect to the Project. 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. 7 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 Open Records Act. Consultant, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to any third party without the prior written approval of the City. 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 Majeure. 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, including, but not limited to, compliance with any government law, ordinance or regulation, 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. 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. [SIGNATURES APPEAR ON FOLLOWING PAGE.] 8 IN WITNESS WHEREOF, the parties hereto have exec ted this agreement in multiples in Fort Worth, Tarrant County, Texas, to be effective as of d , 2007. CITY OF FORT WORTH: CONSULTANT: By: Varen y:L. Montgomery Dr. Pamela Jo on Assistant City Manager/CFO NIA Consu g ATTEST: B Marty Hendrix City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant Ci Attorney 9 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appearedPvnt� n known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the IJ16L e&zuI��✓and that she executed the same as the act of said h for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _day of / A.D. 2007. o�000c�ooaeao ' �^ TERRY L MoKNWEY NI * Not"Pubila ?Stelof lic in an for STATE OF TE Texas My Comm.Exp.07-06.10 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Karen L. Montgomery, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the City of Fort Worth for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , A.D. 2007. Notary Public in and for the State of Texas 10 EXHIBIT "A" Letter of Agreement Vital Leadership Skills for Managers Training Program 2007-2008 Program Sessions—Dr. Pamela Johnson will provide 12 days of consultation/facilitation service that focuses on leadership training. Training sessions will be held at various Fort Worth locations. The City of Fort Worth will provide the facility, arrange for room set up and will provide a flip chart stand with chart pad, TV, VCR, a computer and LCD projector. NIA Consulting will provide other equipment needed for the particular session. Program Materials—All program materials, both facilitator materials and participant workbooks, have been purchased and will be provided by the City of Fort Worth. Fees for Consultation/Facilitation—The consultation/facilitation fee of$2,000 per training day has been established based on 12 specific training sessions/outcomes. The total agreed upon amount for consultation/facilitation fees is not to exceed $24,000. This fee cannot be altered or cancelled except as noted below under the heading Emergency Contingencies. Payment—A fee of$2,000 for professional consultation/facilitation services will be invoiced 30 days in advance of each session. During the week of the scheduled training session, Learning Services staff will submit the invoice to the Finance Department for processing. The Finance Department will mail payments directly to NIA Consulting at the address on file. Emergency Contingencies—Should the City of Fort Worth elect to cancel any training dates due to Acts of God or an organizational emergency that would require an organizational response,NIA Consulting will honor its professional fee of$2,000 per day provided the Cityof Fort Worth reschedules the training event within 21 days of the original training date.