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HomeMy WebLinkAboutContract 31262 Y SECRETARY�?'�1 O ONTRACT N PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made on JLk A 2004 ("Effective Date"), between the City of Fort Worth ("CITY"), a municipal corporation, and Public Enterprise Group Incorporated, ("PEG" or "CONSULTANT"), also referred to as "Parties". RECITALS CITY is a public entity organized and existing pursuant to the Charter of the City of Fort Worth and the Constitution of the State of Texas. CITY is currently interested in the development of public-private partnerships for the purpose of securing sponsors for CITY, and desires to engage the services of CONSULTANT to assist in such project and to render its services on the terms and conditions provided in this Agreement. CONSULTANT is a corporation possessing the skills and knowledge needed to bring together public entities and private entities in ways mutually benefiting both entities, and desires to render the professional services for the CITY as provided herein. CONSULTANT further warrants that it is experienced and capable of performing the tasks hereunder in a professional and competent manner. THEREFORE, CITY hereby engages the services of the CONSULTANT, and in consideration of the mutual promises herein contained, the parties agree as follows: I. APPOINTMENT 1.1 CITY hereby appoints PEG and PEG hereby accepts appointment as an exclusive independent agent authorized to secure sponsors for CITY on the terms and conditions contained in the Agreement. 11. RELATIONSHIP OF PARTIES 2.1 PEG is an independent contractor and not an employee of CITY and all obligations of PEG performed hereunder shall be fulfilled as an independent contractor. In addition, except as specifically provided herein, PEG has no power or authority to incur any debt, obligation or liability on behalf of CITY. 2.2 Except as otherwise provided, CITY neither has nor reserves any right or power to exercise any direction, control or determination over the manner, means or methods of PEGS activities and objectives in its operations, other than those specific items listed in Section 4 of this Agreement. 23 As an independent contractor, PEG is responsible for filing all necessary federal, state and local tax returns and paying all applicable income taxes. PEG will not For-, Worth Contract Draft U . _,4 J, be treated as an employee with respect to any services or federal tax purposes and for state tax purposes and warrants that it understands its federal, state and local tax obligations. 2.4 PEG understands that it is not an employee of CITY, that CITY is not obligated to provide any benefits to it, and that it is not entitled to any benefits except such benefits as CITY chooses to provide to PEG. PEG further understands that it is not entitled to any compensation in connections with the Agreement except for the amounts set forth in Section 6 below. Ill. TERM 3.1 This Agreement shall be effective commencing on the date set forth above, and shall continue in effect until it has been terminated by either party pursuant to the termination provisions of this Agreement. IV. SERVICES 4.1 The work to be performed by PEG on behalf of FORT WORTH shall include: 4.1.1 PHASE 1 —ANALYZE THE REVENUE POTENTIAL PEG shall develop and submit to the City Manager or his/her designee an asset inventory list and a prospective sponsor target list. PEG shall inspect and evaluate CITY facilities in search of assets offering promising marketing opportunities. PEG shall also review current contracts as provided by the City and assist the City in the development of a set of program policies and procedures. PEG shall complete this work within two months of entering into this Agreement. 4.1.2 PHASE 2 — DEVELOP THE MARKETING PLAN Based on the work completed in Phase 1, an Asset Management Strategic Marketing Plan will be developed. This plan will include an inventory of existing assets and top potential categories. PEG shall complete this work during the third month after entering into this Agreement. 4.1.3 PHASE 3 — PACKAGING TOP PROSPECTS PEG shall develop a Corporate Sponsorship Package for each designated category that includes customized rights and benefits and will guide the City in formulation of category specific Request for Proposals. PEG shall complete this phase during the fourth month after execution of this agreement. 4.1.4 PHASE 4 — SOLICITATION OF SPONSORSHIPS PEG will initiate a multilevel marketing sales campaign for priority prospects, conducting presentations at multiple executive levels and Fort Worth Contract Draft 2 escorting the prospects on site visitations. PEG will deliver the RFP to the qualified prospects and guide them through the RFP process. PEG shall then initiate negotiations. PEG shall complete this work during the fifth and sixth months after entering into this Agreement. 4.1.5 PHASE 5 — NEGOTIATION, SELECTION, & FINAL CONTRACT PEG shall negotiate and assist CITY with selection process with one or more sponsors. PEG shall meet with Staff to review sponsor bids, analyze the content and make recommendations for prospect selections. PEG will organize presentations of the proposal by recommended prospects to City Staff. Upon selection of a marketing sponsor, the offer will be referred to the City Attorney for development of a formal agreement. The agreement shall be presented to the City Council for final approval. This work will be completed within timelines mutually agreed to by PEG and CITY. 4.1.6 PHASE 6 — IMPLEMENTATION OF PROGRAM When CITY enters into a marketing sponsor agreement, PEG shall monitor and manage the relationship between CITY and sponsor to insure both compliance and satisfaction are achieved. PEG will develop performance evaluation materials and committees to oversee the successful implementation of the new program. This work will be completed on an ongoing basis. PEG will provide progress reports on sales activity for new marketing relationships. V. USE OF AGENTS OR ASSISTANTS 5.1. To the extent reasonably necessary to enable the CONSULTANT to perform its duties hereunder, CONSULTANT shall be authorized to engage the services of any agents or assistants which it may deem proper, and may further employ, engage, or retain the services of such other persons or corporations to aid or assist in the proper performance of its duties. All cost of the services of, or expenses incurred by, such agents or assistants shall be chargeable directly to CONSULTANT. 5.2. In the event of a dispute based upon said prevailing wage laws, CONSULTANT shall indemnify, defend and hold harmless at its expense, including the provision of legal counsel, CITY, its agents, employees and officers from liability, claims, demands, damages and costs pertaining to said prevailing wage laws. VI. FEE 6.1. For services to be rendered under this Agreement, PEG shall be entitled to a fee for actual services performed, payable as follows: 6.1,1 'COMMISSION FORMULA PEG shall be entitled to receive a commission of 12% on total gross revenues generated by the sponsor agreements procured by PEG. CITY Fon Worth Contract Dmft shall pay PEG said commission within thirty (30) days following receipt of revenues from the sponsor agreements. If sponsor agreements are multi- year in nature, and payments are made annually or in installments, then PEG shall be paid said commission within thirty (30) days after receipt of payment from the sponsor. The packaging and pricing of sponsor agreements may be changed by CITY in its sole discretion from time to time, and PEG shall not receive any increased commission as a result of such change, unless PEG directly negotiated the change. 6.2 Should the CITY require additional services not included in this Agreement, any such additional services shall be negotiated and paid separately. 6.3 PEG shall be reimbursed for actual and necessary travel and business expenses PEG incurs on behalf of the CITY. These records will be made available to the CITY upon submission of invoices for reimbursement of these expenses. These expense payments will be refunded to the CITY in five equal portions (each portion equal to 20% of the total expenses) to be deducted one portion from each of the first five commission payments made to PEG. VII. TERMINATION 7.1. Either party may terminate this Agreement upon thirty (30) calendar days' prior written notice to the other, provided that such termination shall be without prejudice to any other remedy the termination party may have against the other for any breach or default of this Agreement. In the event of termination, any work in progress will continue to completion unless otherwise specified in the notice of termination. The CITY shall pay such commissions as may be due on any sponsor agreements completed by the CONSULTANT and accepted by the CITY after the notice of termination. Commission payments due the CONSULTANT from agreements completed prior to the notice of termination will continue as provided in Section 6 of this Agreement. Termination pursuant to this clause by CONSULTANT shall be deemed effective only after a full thirty days have lapsed, and then on the first of the following month. Fort Worth Comma Draft Vill. AUDIT BY CITY 8.1. CONSULTANT shall permit CITY or any authorized representatives of CITY, at all reasonable times, access to and the right to examine all records, books, papers or documents related to CONSULTANT's performance under this Agreement including, but not limited to, expenses for sub-consultants, agents or assistants, direct and indirect charges for work performed and detailed documentation for all such work performed or to be performed under this Agreement. IX. COPIES OF DATA 9.1. Copies or originals of all data collected by CONSULTANT in relation to work associated with this Agreement shall be provided to CITY. Data collected, stored, and/or provided shall be in a form acceptable to CITY and agreed upon by CITY. X. CONFIDENTIALITY 10.1. CONSULTANT shall not disclose, publish, or authorize others to disclose or publish, design data, drawings, specifications, reports, or other information pertaining to the projects assigned to CONSULTANT by CITY or other information to which CONSULTANT has had access during the term of this Agreement without the prior written approval of the City Attorney during the term of this Agreement and for a period of two (2) years after the termination of this Agreement. XI. INSURANCE 11.1. Public Liability and Property Damage Insurance 11.1.1. CONSULTANT shall assume all responsibility and liability for damages to property and injuries to persons, including accidental death, which may arise out of or may be caused by CONSULTANT'S performance of this Agreement, by its subcontractors or by any one CONSULTANT directly or indirectly employed, and whether such damage or injury may accrue, or may be discovered, before or after termination of this Agreement. 11.1.2. At its own expense, CONSULTANT shall obtain, pay for and maintain during the life of the Agreement an "occurrence" policy for Commercial General Liability (including Contractual Liability) and for Automobile Liability which shall protect it and CITY from claims for injuries and damages. The policy shall add the City of Fort Worth, its officers, agents and employees as additional insureds under the policy in the following amounts: A. COMMERCIAL GENERAL LIABILITY INSURANCE in an amount not less than One Million Dollars ($1,000,000) per occurrence for bodily injury and personal injury, including accidental death, to any one person, property damage insurance in an amount not less than One Million F I ort Worth Contract Draft Dollars ($1,000,000); and a combined single limit of insurance in an amount not less than One Million Dollars ($1,000,000); and an aggregate of Two Million Dollars ($2,000,000). B. AUTOMOBILE LIABILITY INSURANCE endorsed for all vehicles (whether rented, leased, hired, scheduled, owned or non-owned), in an amount not less than One Million Dollars ($1,000,000) per occurrence for bodily injury, including accidental death, to any one person; property damage insurance in an amount not less than One Million Dollars ($1,000,000); or a combined single limit of insurance in an amount not less than One Million Dollars ($1,000,000). 11.1.3. At all times, the insurance company issuing the policy shall be a licensed or "approved" insurer in the State of Texas; shall be domiciled within, and organized under the laws of, a state of the United States; and shall carry an A.M. Best & Company minimum rating of"A:Vll." 11.1.4. All policies shall contain a "Separation of Insured" clause and a "Primary Coverage" clause for any loss arising out of or caused by CONSULTANT'S performance of the Agreement. In addition, the policies shall contain a statement of obligation on the insurance carrier's part to notify CITY, by registered mail, at least thirty (30) days in advance of any policy cancellation, termination, or reduction of coverage. 11.1.5. CONSULTANT shall deliver to CITY a "certificate of insurance" and an "additional insured endorsement", both documents countersigned by the insurance carrier or its authorized representative, on forms satisfactory to Risk Management, which set forth the above provisions. 11.1.6. The countersigned certificate, along with the additional insured endorsement, shall state: "The City of Fort Worth, its officers, agents and employees are added as additional insured's under this policy. This insurance is primary to the coverage of the City of Fort Worth. Neither the City nor any of its insurers shall be required to contribute to any loss. The insurance shall apply separately to each insured. The issuing company shall mail thirty (30) days advance notice to the City of any policy cancellation, termination, or reduction of coverage." 11.1.7. Additionally, the certificate of insurance shall state if any claim has been paid or is currently pending under the policy, and if so, the amount of the claim(s) and the amount of liability limits as lowered by the paid or pending claim(s), Any deductibles or self-insured retentions shall be set forth on the certificate and shall be subject to CITY'S review and approval. Fort Worth Contract eft 11.2. Workers' Compensation Insurance 11.2.1. At its own expense, CONSULTANT shall obtain, pay for, and maintain for the duration of the Agreement, complete workers' compensation insurance. CONSULTANT shall provide proof of workers' compensation coverage by delivering to CITY either an insurance certificate or a certificate of consent to self-insure. The City of Fort Worth shall not be responsible for any claims at law or inequity caused by CONSULTANT'S failure to comply with this paragraph. 11.2.2. All workers' compensation insurance policies shall bear an endorsement, or shall attach a rider, which provides that the insurer will notify CITY, by registered mail, at least thirty (30) days in advance of the policy's expiration, termination or cancellation. 11.3. Professional Liability Insurance 11-3.1. At its own expense, CONSULTANT shall obtain, pay for, and maintain for the duration of the Agreement, a Professional Liability policy (that includes errors and omissions, and professional malpractice) in an amount not less than Two Million Dollars ($2,000,000) per occurrence. The policy shall provide coverage for any loss arising out of or caused by CONSULTANT'S performance of the Agreement. X11. INDEMNITY 12.1. CONSULTANT shall indemnify, defend and hold harmless, to the maximum extent permitted by law, CITY and its officers, agents, employees and representatives, from and against any and all liability, suits, actions, proceedings, judgments, claims, losses, liens, damages, injuries (whether in contract or in tort, including personal injury, accidental death or property damage, and regardless of whether the allegations are false, fraudulent or groundless), costs and expenses (including attorney's fees, litigation, arbitration, mediation, appeal expenses) which in whole or in part arise out of or are connected with, or which are alleged to have arisen out of or to have been connected with, CONSULTANT'S performance of this Agreement (including performance by its agents, employees, subcontractors or by any one CONSULTANT directly or indirectly employed). CONSULTANT shall not make any statements or representations to prospective sponsors that could mislead or confuse the sponsors, and shall indemnify, hold harmless and defend CITY from and against any and all claims, damages, liabilities, losses, costs, charges and expenses (including reasonable attorney's fees) resulting wherefrom, which may be brought in connection with or arising from any such statements or representations. 12.2. CONSULTANT'S obligation to indemnify, defend and hold harmless shall remain in effect and shall be binding upon CONSULTANT whether such injury or damage shall accrue, or may be discovered, before or after termination of this Agreement. Fort Worth Contract Draft 12.3. CONSULTANT'S failure to comply with this section's provisions shall constitute a material breach upon which CITY may immediately terminate or suspend this Agreement. XIII. ENTIRE AGREEMENT 13.1. This Agreement supersedes any and all other Agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other Agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. XIV. DISPUTE RESOLUTION 14.1. In the event of a dispute between the parties, the parties shall first meet and confer within a period of 90 days to resolve the matter. CITY in no way waives nor relinquishes any rights to have disputes decided in a court of proper jurisdiction. Venue of any action arising hereunder shall be exclusively in Tarrant County, Texas. XV. NOTICES 15.1. All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly given on the date either personally delivered to the address indicated below; or on the third (3rd) business day following deposit, postage prepaid, using certified mail, return receipt requested, in any U.S. Postal mailbox or at any U.S. Post Office. Should CITY or CONSULTANT have a change of address, the other party shall immediately be notified in writing of such change, provided, however, that each address for notice must include a street address and not merely a post office box. All notices, demands or requests from CONSULTANT to CITY shall be given to CITY addressed as follows: CITY: City Manager City of Fort Worth 1000 Throckmorton Fort Worth, TX 76102 Tel. No. 817-392-6116 CONSULTANT: Public Enterprise Group Inc. 101 Main Street, Suite 240 Huntington Beach, CA 92648 Attn: Don Schulte Tel. No. 714-374-3330 Fort Worth Cuntract Draft XVI. NON-DISCRIMINATION IN EMPLOYMENT 161. CONSULTANT certifies and agrees not to discriminate against any employee or person who is subject to this Agreement because of race, color, religion, religious belief, national origin, ancestry, citizenship, age, sex, sexual orientation, marital status, pregnancy, parenthood, medical condition, or physical or mental disability. Evidence of discrimination shall be sufficient cause for termination of this Agreement, XVIL FORCE MAJEURE 17.1. Neither party shall be considered in default in the performance of its obligations hereunder or any of them, if such obligations were prevented or delayed by any cause, existing or future, beyond the reasonable control of such party which include but are not limited to acts of God, labor disputes or civil unrest. Any delays beyond the control of either party shall automatically extend the time schedule as set forth in this Agreement by the period of any such delay. XVIII. COUNTERPARTS 18.1. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same document. Each of the parties shall sign a sufficient number of counterparts, so that each party will receive a fully executed original of this Agreement, XIX. APPLICABLE LAW 19.1. This Agreement shall be construed under and in accordance with Texas law. Executed at Texas, on the day and year first written. CITY OF FORT WORTH: CONSULTANT: By By City Manager 0 z a t I Y. DL/ ATTESMD BY f,ty Arhyrow Wool rNFort Worth Contract Draft 3-t -4 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 511812004 DATE: Tuesday, May 18, 2004 LOG NAME: 13PEG REFERENCE NO.: C-20085 SUBJECT: Agreement with the Public Enterprise Group to Assist in Developing Corporate Partnership Revenue Programs RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an agreement with the Public Enterprise Group (PEG) to assist the City of Fort Worth in marketing its assets and developing corporate partnership revenue programs. DISCUSSION: The Public Enterprise Group will assist the City in developing and implementing a comprehensive marketing program to generate revenue for the City throughout the terms of the contracts with corporate partners that PEG helps the City to conclude. This program may include: soft drink marketing, snack vending, telecommunications, direct mail, signage and commercial concessions. One of the first steps in the program will be to assist the City in the development of a set of program policies, to be approved by the City Council, to guide the marketing of City assets and the pursuit of corporate partnerships. In exchange for assisting the City negotiate any partnership contract, PEG will receive a 12% commission on all revenue it raises for the City through such contracts. As indicated to Council earlier this year, staff proceeded to issue a Request for Proposal for a Marketing Income Consultant. Four firms responded, and their proposals were evaluated by a nine-member staff committee. Two firms were invited to make presentations to the committee, and PEG is the committee's recommendation. This recommendation was discussed with the GNRC May 4, 2004, and the GNRC approved presenting this recommendation to the full Council. FISCAL INFORMATIONXERTIFICATION: The Finance Director certifies that funds will be available from revenue generated through sponsorships and corporate partnerships to make the commission payments to PEG, TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for QLtty MajnAq"!$_Office: Charles Boswell (6183) Qiig1tjatirtg_Qepar"ent Head Jim Keyes (851 7) Jim Keyes (8517) T'no'Tinmi— ]'App(;