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HomeMy WebLinkAboutContract 45796 (2)CITY sECRETAm'j6qq0 � CONTRACT NO. .. 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 of the State of Texas, acting by and through Susan Alanis, its duly authorized Assistant City Manager, and EMD CONSULTING GROUP, LLC ("Consultant"), a Missouri limited liability company, acting by and through Richard H. Daley, its duly authorized Member, each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A — Statement of Work All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. 1. SCOPE OF SERVICES. Consultant shall, with good faith and due diligence, assist the City in recruiting and hiring a highly qualified individual to serve as the Director for the Fort Worth Botanic Garden for the City of Fort Worth. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. The actions and objectives contained in Exhibit A are referred to herein as the "Services." Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. 2. TERM. This Agreement shall be binding upon execution by the parties and commence on August 1, 2014 ("Effective Date") and shall expire on the earlier of one year or when a candidate is hired for the Position, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. a. Total Compensation. Total compensation under this Agreement shall not exceed Thirty - Nine Thousand Dollars and No Cents ($39,000.00) for all Services performed under this Agreement to include the total of the Consultant's fixed fee and all reimbursable expenses. Fee. As full and complete compensation for all Services described herein, Consultant shall be paid a fixed fee of Thirty -Six Thousand Five Hundred Dollars and No Cents ($36,500.00), inclusive of travel expenses (one trip, two people, to Fort Worth, Texas for four days). The City shall pay the Consultant in the following installments set forth below: 1. Seven Thousand Three Hundred Dollars and No Cent ($7,300.00) within thirty (30) calendar days after the execution of this Agreement by all parties Professional Services Agreement — EMD Consulting, LLC Saadi OFFICIAL RECORD GITY SECRETARY RECEIVED JULJ2 Spi4'5fjj%1fl 2. Seven Thousand Three Hundred Dollars and No Cent ($7,300.001 after completion of the organizational inquiry and analysis, stakeholder interviews, and focus group meetings, and submission and approval of the Position description set forth in Section 1 of Exhibit A. 3. Ten Thousand Nine Hundred Fifty Dollars and No Cents ($10,950.001 upon submittal of the matrix of candidates to the City. 4. Ten Thousand Nine Hundred Fifty Dollars and No Cents ($10,950.00) upon the City's hiring of a candidate for the Position. ii. Reimbursable Expenses. In addition to any fee due under Subsection 3(a)(i), City shall reimburse Consultant for advertising expenses in an amount not to exceed Two Thousand Five Hundred Dollars and No Cents ($2,500.00). Incurred reimbursable expenses will be paid concurrently with any invoice submitted for the performance of Services. b. Following completion of each of the listed milestones set forth in Subsection 3(a)(i)(2-4), the Consultant shall provide the City with a signed fee invoice summarizing (i) the portion of the Services that has been completed and (ii) the Reimbursable Expenses that have been incurred and requesting payment. In submitting invoices, Consultant shall provide copies of receipts for all Reimbursable Expenses. If the City requires additional reasonable mformation, it shall request the same promptly after receiving the above information, and the Consultant shall provide such additional reasonable information to the extent the same is available Invoices shall be submitted to the City of Fort Worth, attention Sandra Youngblood, 4200 South Freeway, Suite 2200, Fort Worth, Texas 76115 Invoices are due and payable within 30 days of receipt. c. On full and final completion of the Services, the Consultant shall submit a final invoice, and City shall pay any balance due within 30 days of receipt of such invoice. d In the event of a disputed or contested billing, only the portion being contested will be withheld from payment, and the undisputed portion will be paid City will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until the contest has been mutually resolved. e For contested billings, the City shall make payment in full to Consultant within 60 days of the date the contested matter is resolved. If City fails to make such payment Consultant may, after giving 7 days' written notice to City suspend Services under this Agreement until paid in full, including mterest calculated from the date the billing contest was resolved In the event of suspension of Services, Consultant shall have no liability to City for delays or damages caused to City because of such suspension of Services. £ Consultant shall not perforrn 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. Professional Services Agreement — EMD Consulting, LLC Page 2 of 11 4. TERMINATION. a. Termination for Convenience. The City may terminate this Agreement for its convenience upon ten (10) days written notice to Consultant. Upon receipt of such notice, Consultant shall immediately discontinue all Services and work and the placing of all orders or the entering into of contracts for all supplies, assistance, facilities and materials in connection with the performance of this Agreement and shall proceed to cancel promptly all existing contracts insofar as they are chargeable to this Agreement. If the City terminates this Agreement under this section, the City shall pay Consultant for Services actually performed in accordance herewith prior to such termination, less such payments as have been previously made, in accordance with a fmal statement submitted by Consultant documenting the performance of such work. ii. Consultant may, for any reason, terminate this Agreement upon thirty (30) days written notice to the City. Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement on or before the effective date of termination If the Consultant terminates this Agreement under this section, the City shall pay Consultant for Services actually performed in accordance herewith prior to such termination, less such payments as have been previously made, in accordance with a final statement submitted by Consultant documenting the performance of such Services. b. Termination for Cause. The City may terminate this Agreement for cause in the event Consultant fails to perform in accordance with the terms and conditions contained herein. In such event the City shall give Consultant written notice of Consultant's failure to perform, giving Consultant fourteen (14) calendar days to come into compliance with the Agreement's requirements If Consultant fails to come into compliance with this Agreement, City shall notify Consultant, in writing and this Agreement shall be terminated as of the date of such notification Termination of this Agreement under this provision shall not relieve the Consultant of any damages resulting from a breach or a violation of the terms of this Agi eement. c. Non-annronriation of Funds In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due 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 the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. d. Upon termination of this Agreement for any reason, Consultant shall provide the City with originals and copies of all completed or partially completed work prepared under this Agreement within thirty (30) calendar days after the effective date of termination, unless otherwise stated in this Agreement. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant s 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. Consultant, for itself and its Professional Services Agreement — EMD Consulting, LLC Page 3 of 11 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 a third party without the prior written approval of the City. 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. 6. RIGHT TO AUDIT. a. Consultant agrees that the City shall, until the expiration of three (3) years after fmal payment under this Agieement, 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 reasonable advance notice of intended audits. b. Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until 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 City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in ordet to conduct audits in compliance with the provisions of tins paragraph. City shall give subcontractor reasonable notice of 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 fiuther agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant 8. LIABILITY AND INDEMNIFICATION. a. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY, INCLUDING BUT NOT LIMITED TO, 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. b. 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 CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING, BUT NOT LIMITED TO, Professional Services Agreement — EMD Consulting, LLC Page 4 of 11 ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, 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 CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCON1'BACTING. 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 giants 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. a. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: i. Coverage and Limits 1. Commercial General Liability A. $1,000,000 Each Occurrence B. $2,000,000 Aggregate 2. Automobile Liability A. $1,000,000 Each accident on a combined single limit basis or B. $250,000 Bodily injury per person C. $500,000 Bodily injury per occurrence D. $100,000 Property damage E. Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. 'Any vehicle" shall be any vehicle owned, hired and non -owned 3. Worker's Compensation A. Statutory limits B. Employer s liability D. $100 000 Each accident/occurrence E $100,000 Disease - per each employee F. $500,000 Disease - policy limit G. This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with hmits Professional Services Agreement — EMD Consulting, LLC Page 5 of 11 consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq Tex. Rev. Civ. Stat.) and minimum policy lmrits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee 4. Professional Liability (Errors & Omissions) A. $1,000,000 Each Claim Limit B. $1,000,000 Aggregate Limit C. Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims -made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. b. Certificates. 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 All policies except Workers' Compensation and Professional Liability shall be endorsed to name the City as an additional insured thereon, as its interests may appear All policies shall contain a Waiver of Subrogation for the benefit of the City of Fort Worth. The term City shall include its employees officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) clays' 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. Such terms shall be endorsed onto Consultant s insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Tbrockmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address 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 of group of individuals on any basis prohibited by law including Chapter 17, Article III of the Code of the City of Fort Worth 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. Professional Services Agreement — EMD Consulting, LLC Page 6 of 11 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 or (2) received by the other party by United States Mail, certified, return receipt requested, addressed as follows: To The CITY: City of Fort Worth Assistant City Manager 1000 Throckmorton Street Fort Worth, TX 76102-6311 Facsimile: (817) 392-8654 To the City Attorney at the same address. 14. SOLICITATION OF EMPLOYEES. To CONSULTANT: EMD Consulting Group, LLC Attn: Richard H Daley 140 Foothills Drive Henderson NC 28792 Facsimile: none 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 mdependent 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. 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 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 / VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas If any action, whether teal 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 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 Professional Services Agreement — EMD Consulting, LLC Page 7 of 11 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 and revised this Agreement and that the normal rules of recruitment to the effect that any ambiguities are to be resolved against the recruitment party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. AMENDMENTS / MODIFICATIONS / EXTENSIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of 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 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. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH By: Date: san Alanis Assistant City Manager lati � 241/ EMD CONSULTING GROUP, LLC By: Date: Richard H. Daley Member Professional Services Agreement — EMD Consulting, LLC Page 8 of 11 APPROVED AS TO FORM AND LEGALITY: /-s-L Tyyfr(Wa1lach litigant City Attorney ATTF ECORD COP( ( SECRETARY Frro WORTH, 17 Professional Services Agreement — EMD Consulting, LLC Page 9 of 11 EXHIBIT A STATEMENT OF WORK Consultant shall furnish all labor, materials, and equipment necessary to assist the City in the recruitment of the Director of the Botanic Garden for the City of Fort Worth (the "Position") and perform the professional services listed below: 1. Understanding the Needs of the Position. a. Consultant shall begin the hiring process by developing a thorough understanding of the City, as an organization and the Position based on: (1) a review of all relevant materials (including, but not limited to, the current job description); (2) in -person interviews with key stakeholders; (3) in -person interviews with the individual that currently holds the same or equivalent position; and (4) City personnel. b. The focus of this Position should be on executive leadership, strategic planning, capital developments resource management, political astuteness, relationship effectiveness, and consensus building. c. Consultant shall conduct stakeholder interviews and focus group meetings in Fort Worth with the following: (1) leaders of the Botanic Garden support orgamzations (including, but not limited to, the Fort Worth Botanical Society, the Fort Worth Garden Club the Council of Garden Clubs); (2) key people at the local institutions of higher learning (including, but not limited to, Texas Christian University and Tarrant County College); (3) leaders of the Botanical Research Institute of Texas (BRIT); (4) and local community organizations (including, but not limited to, the Stock Show, Events Facilities Fort Worth, AgriLife, and local museums). Consultant will also meet with the appropriate City staff (preferably all necessary staff as well as the management staff), key volunteers, and, if appropriate, select donors. d. After conducting the above -stated meetings, the Consultant shall prepare a description of the Position for approval by the Fort Worth City Manager or that person's designee e. The process detailed in this section is estimated to take one month to complete 2. Recruitment a. The Consultant shall conduct a national search for the Position, which shall include, without limitation, the following: i. Advertising in appropriate places, primarily American Public Garden's Association's publications and hotline, as well as appropriate Fort Worth news outlets for a minimum period of one month. ii. Conducting one-to-one phone calls throughout the country to public garden leaders. b. The process detailed in this section is estimated to take three to four months to complete. Professional Services Agreement — EMD Consulting, LT r Page 10 of 11 3. Matching the Candidates with the Needs of Fort Worth Botanic Garden a. Consultant shall use the new Position description that includes not only requirements but desirable characteristics and background to develop a matrix specific to the Fort Worth Botamc Garden to use in narrowing and rating the field of candidates. The matrix shall include approximately twenty (20) candidates in preferred order for the City to review and must, at the very least, highlight each candidate s knowledge, skills, and abilities and justify why candidates are or are not best suited to fill the Position. b. Beyond the matrix Consultant shall provide the City with notes on each candidate to provide more in-depth reviews of the candidates based on interviews with the candidates and knowledge of those candidates. 4. Collection of Information a. The Consultant shall conduct the initial screening of all candidates. After initial contact with the candidates by phone, Consultant shall collect resumes and other related background material fiom the candidates for review. The Consultant shall make its initial assessments from these materials as well as from phone conversations with people who recommend them • b. If a candidate meets the job requirements, the Consultant shall schedule a phone mterview with the candidate to probe into that person's background understand any gaps m resume and expand on the materials given to it, and assess the candidate's communication skills. For some candidates, especially those that the Consultant believes are the strongest ones when matched against the needs of Fort Worth Botanic Garden, a second interview will be completed c. The Consultant shall assess the strengths of the candidates, areas that it thinks may be challenges, and judge the candidate's seriousness about the position and a move to Fort Worth. 5. Recommendations a. The selection of the fmalists and the fmal top candidate for the Position shall be made by the City with the assistance of the Consultant. Along with the matrix and notes on the candidates, Consultant shall indicate the candidates that it feels are the best matches for the Position. Consultant shall be available for conversations following its report as the City continues its process of interviews and making the final selection. Consultant shall provide suggested interview processes and questions for the candidates invited for mterviews by the City and assist the City with any and all interviews of the fmalists 6. Communication with the City a. Throughout the Consultant process, Consultant shall stay in regular communication with the appropriate City staff. The Consultant shall provide updates regarding the progress of the search as frequently as desired by the City Professional Services Agreement — EMD Consulting, LLC Page 11 of 11