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HomeMy WebLinkAboutContract 39669:;ITY SECRETARY CNTRACT NO . ,�, l�lo AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into by and between THE CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and THE ELIM GROUP ("Consultant"), a sole proprietorship, acting by and through its duly authorized President and Chief Executive Officer. Scope of Services. Consultant covenants and agrees, with good faith and due diligence, to assist the City of Fort Worth by facilitating meetings of the Healthcare Benefits Committee and Pension Benefits Committee, which were appointed by the City Manager to review and discuss pension and healthcare benefits for active and retired employees based on the City of Fort Worth's ability to pay for those benefits, and in preparing each Committee to make recommendations to the City Manager regarding those benefits. 2. Consultant Duties. During the initial meeting of each Committee, Consultant shall lay out the format and ground rules for Committee meetings, provide a timeline for meetings and deliverables, facilitate the appointment of a Committee Chair, facilitate presentation of the City Manager's charge to the Committee, and lead a discussion to develop a plan to accomplish the charge and assigned duties and tasks. Consultant shall use information obtained at the initial meeting to design and prepare for future Committee Meetings. Prior to each Committee Meeting, Consultant shall: (1) Confer with the Committee Chair to prepare an agenda and establish an overview of the objective(s) of the upcoming meeting in relation to the Committee's overall objectives and the role of the facilitator in the upcoming meeting. (2) Communicate to the City's designated contact person the specific needs and requirements for a meeting facility, equipment set-up and logistics, and needed resources. (3) At least four business days prior to the meeting, provide the Committee with a Meeting agenda, and major discussion topics. Professional Services Agreement with The Elim Group OFFiCIAI_. RECORD CITY SECRETARY FT. WORTH, TX Page 1 of 12 During Committee Meetings, Consultant shall: (1) Facilitate the discussion of issues and topics. (2) Ask questions to solicit further discussion and information as appropriate. (3) Guide the Committee toward resolution of issues and topics raised during the meeting and facilitate the Committee in considering if and to what extent such issues and topics will be addressed in the Committee's ultimate recommendations to the City Manager. No later than one week after the date on which each Meeting takes place, Consultant shall provide a written summary of the Meeting to the Committee Chair in an electronic, Microsoft Word format. If desired and required by either Committee or the City, Consultant shall conduct focus group meetings, strategic planning and strategy sessions, or debriefs with guided discussions intended to solicit input from identified individuals and/or groups regarding issues to be addressed in development of each Committee's report. Consultant's services shall be provided using four-hour facilitation units known as `Slim Group Units" or EGUs. Consultant shall provide the City with up to 40 EGUs for the Base Fee. City may schedule these EGUs at any time and date during the Term of this Agreement that is mutually agreed to by the City's Primary Contact and the Consultant's authorized representative. If the facilitation services for the Pension Benefits Committee and Healthcare Benefits Committee do not utilize all 40 EGUs, City may engage Consultant to provide the remaining EGUs in the form of facilitation services for other City projects and meetings. 3. Citv's Duties. City agrees to perform the following: Primary Contact — City shall appoint a primary contact person to work with Consultant to schedule and arrange for meeting facilities, equipment and resources. Professional Services Agreement with The Elim Group Page 2 of 12 Staff Support — City shall provide staff support to Consultant and to each Committee to furnish such necessary support functions as note taking, typing and transcription, copying, and audio/visual assistance. Facilities and Equipment — City shall arrange for and provide a facility suitable to the Consultant and for such equipment and supplies as may reasonably be required by the Consultant. Educational and Technical Information — City shall ensure that each Committee receives reasonable background and technical information concerning the City benefits being reviewed by that Committee. In addition, City shall ensure the Consultant receives reasonable background and technical information concerning all benefits being reviewed by both Committees so that the Consultant may develop a level of understanding of the issues being considered. Subject Matter Experts - City shall provide or arrange for subject matter experts to be available to each Committee as necessary to address questions and issues that arise during Committee Meetings. 4. Term. This Agreement shall govern services provided by Consultant for a term beginning January 1, 2010 and ending December 31, 2010, unless this Agreement is terminated earlier in accordance with Section 6. 5. Compensation. a) Facilitation Fees As full and complete compensation for the 40 EGUs to be provided by Consultant to City, Consultant shall be paid a total facilitation fee not to exceed Fifty Thousand Dollars ($50,000.00) (Base Fee) plus expense reimbursement as detailed below. If the City requires additional services beyond 40 EGUs, Consultant shall offer additional EGUs at the lesser of the following two fee rates plus expense reimbursement as detailed below: (i) One Thousand Seven Hundred Fifty Dollars ($1750.00) per EGU if purchased individually or (ii) One Thousand Professional Services Agreement with The Elim Group Page 3 of 12 b) c) Two Hundred and Fifty Dollars ($1,250.00) per EGU if purchased in groups of ten. Expense Reimbursement In addition to any fees due under Subsection (4)(a), City shall reimburse Consultant for actual travel -related expenses (such as personal car mileage, tolls and a limited per diem). Personal car mileage will be billed at standard IRS business mileage rates in effect at the time of travel. City shall also reimburse Consultant for actual cost of other expenses incurred in the performance of the duties under the terms of this Agreement, including postage and shipping, materials, training aids and other reasonably necessary expenses. The total cost of all expense reimbursement associated with the initial 40 EGUs provided shall not exceed Five Thousand Dollars ($5,000.00). Structure of Pavments i. Consultant's Base Fee will be divided into three payments as follows: On or before January 31, 2010 $20,000.00 On or before April 31, 2010 $20,000.00 On or before July 31, 2010 $10,000.00 ii. On or before the first day of the month in which a payment is scheduled to be made, Consultant shall provide the City with a signed fee invoice summarizing the portion of the services that has been completed and requesting payment. If the City requires additional reasonable information, it shall request the same promptly, and the Consultant shall provide such additional reasonable information to the extent the same is available. iii. Expense reimbursement shall be paid monthly. No later than the 15th day of each month, Consultant will provide City with an invoice detailing the actual costs incurred in performing services under this Agreement during Professional Services Agreement with The Elim Group Page 4 of 12 the preceding month. Invoices are due and payable within 30 days of receipt. iv. 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. V. 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 interest 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. 6. Termination. Either Party may terminate this Agreement at any time, with or without cause, by providing 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 Services actually rendered and travel expenses actually incurred as of the effective date of termination. In the event this Agreement is terminated by Consultant prior to the provision of the 40 initial EGUs, Consultant shall refund to City the difference between (i) the Base Fee that has been paid and (ii) the number of EGUs rendered prior to termination multiplied by One Thousand Two Hundred and Fifty Dollars ($1,250.00). 7. 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 Professional Services Agreement with The Elim Group Page 5 of 12 officers, agents, servants, employees, and subcontractors. The doctrine of respondeat superior shall not apply as between the City and Consultant, its officers, agents, servants, employees, or subcontractors. 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, servants, employee, or subcontractor of Consultant is in the paid service of City. 8. Liability and Indemnification. CONSULTANT AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (I) CONSULTANT'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (Ii) ANYNEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITYOR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONSULTANT AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITYAS FURTHER PROVIDED BY THE LAWS OF TEXAS. 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 shall survive the expiration or termination of this Agreement. Professional Services Agreement with The Elim Group Page 6 of 12 9. 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 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 • 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 insurance shall be maintained for the duration of the contractual agreement. Coverage shall be in the following amounts: (1) $1,000,000 per occurrence or claim (2) $1,000,000 aggregate • Worker's Compensation & EmWovers Liability: (1) Workers' compensation — Statutory Coverage (2) Employers Liability - $500,000 / $500,000 /$500,000 • Automobile Liability for Owned/Leased Vehicles, Non -Owned Vehicles, and Hired Vehicles (1) Combined single Limit for Bodily Injury and Property Damage - $1,000,000 per accident Professional Services Agreement with The Elim Group Page 7 of 12 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 with such requests or revisions as a condition precedent to the effectiveness of this Agreement. 10. Assimnment. 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. Any attempted assignment of subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. If 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 grants 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. 11. Compliance with Law. Consultant, its officers, agents, servants, 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, servants, employees, or subcontractors, then Consultant shall immediately desist from and correct such violation. 12. Non -Discrimination. In the execution, performance, or attempted performance of this Agreement, Consultant will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will Professional Services Agreement with The Elim Group Page 8 of 12 Consultant permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination. 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 officers, 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 officers, agents, employees, or subcontractors. 13. Riaht 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 section. City shall give subcontractor reasonable advance notice of intended audits. This section shall survive the expiration or termination of this Agreement. 14. 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 Professional Services Agreement with The Elim Group Page 9 of 12 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. 15. 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. 16. 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, Assistant City Manager Mike Conduff, President and CEO City of Fort Worth The Elim Group 1000 Throckmorton St. 10 Royal Oaks Circle, Suite 201 Fort Worth, Texas 76102 Denton, TX 76210-5576 (817) 392-6222 (940) 382-3945 17. Non -Waiver. The failure of either Party 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 Consultant's right to assert or rely on any such term or right on any future occasion. 18. 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 provision of the Services. In the event that any conflicts of interest arise after the execution of this Agreement, Consultant hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict. 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 Professional Services Agreement with The Elim Group Page 10 of 12 agrees that the City is subject to various public information laws and regulations, including, but not limited to, the Texas Public Information Act. Consultant, for itself and its officers, agents, servants, employees, and subcontractors, 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. 19. Minority and Woman Business Enterprise Participation. In accordance with City Ordinance No. 15530, the City has goals for the participation of minority business enterprises and woman business enterprises ("M/WBE") in City contracts. Consultant acknowledges the M/WBE goal established for this Agreement and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Consultant may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. 20. Governmental Powers. Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 21. 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. 22. Force Majeure. If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or emergency by the federal, state, county, or City government in accordance with applicable law; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such Event. Professional Services Agreement with The Elim Group Page 11 of 12 23. 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. 24. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. 25. Entire Agreement. This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the Parties concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. EXECUTED in multiple originals on this, the 1 ath day of Q , 201-0. CITY OF FORT WORTH, TEXAS Karen L. Montgomery Assistant City Manager Date Signed: /7�//o ATTEST: F'C4"H:e n 'x City Secretary APPROVED AS TO FORM AN FGA TV 11 � Denis C. c roy Assistant City Atto ey M&C (9- -16 � 01--00 Professional Services Agreement with The Elim Group a THE GROUP Michael A. Conduff President and Chief Executive Officer Date Signed: WITNESS: OFRECORD CITY SECRETARY , FT. WORTH, TX 42of12 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 12/15/2009 DATE: Tuesday, December 15, 2009 REFERENCE NO.: **G-16788 LOG NAME: 02ELIM SUBJECT: Authorize an Agreement for Consulting and Group Facilitation Assistance with The Elim Group in an Amount Not to Exceed $55,000.00 RECOMMENDATION: It is recommended that the City Council authorize the City Manager to enter into an Agreement with The Elim Group to provide consulting and group facilitation assistance to the City of Fort Worth and the City Manager`s appointed Healthcare and Benefits Committees in an amount not to exceed $55,000.00. DISCUSSION: During the Fiscal Year 2010 Budget Process, the City Council was provided information about the cost of the current level of pension and retiree healthcare benefits. The Annual Required Contribution (ARC) of both benefits is not being met due to other competing demands for services and, as such, is creating a greater liability that must be addressed. It was decided that establishing two Committees, a Pension Committee and a Healthcare Committee, both comprised of knowledgeable but separate employees and business representatives, would allow a balanced discussion with recommendations to be made to the City Manager for consideration in the Fiscal Year 2011 budget process. It was also decided that a neutral facilitator should be selected to work with the Committees. It is recommended that the City Council authorize the City Manager to enter into an Agreement with The Elim Group for such consulting and group facilitation assistance to the Healthcare Committee and the Pension Committee. The Elim Group is a consulting firm specializing in Board Governance, Leadership Training, Motivational Speaking and Management Improvement. The firm is particularly known for its work in improving organizational performance. Mike Conduff is President and Chief Executive Officer of The Elim Group. The Elim Group anticipates each Committee will require bi-weekly meetings a month for at least six months. Pricing for meeting facilitation services would be based upon half -day facilitation sessions known as an "Elim Group Unit" (EGU) at a discounted price of $1,250.00 per EGU. The Agreement with The Elim Group would provide for up to 24 EGUs for a total cost of up to $50,000.00. These "EGUs" may be used in half -day or full -day increments. If all EGUs are not utilized during the work of the two Committees, they may be used throughout the year on other budget related projects. In addition, the City will reimburse The Elim Group for necessary travel and related expenses and for other customary reasonable and necessary expenses incurred in the performance of the duties under the terms of the Agreement. Such travel and other expenses are not expected to exceed $5,000.00. The total cost of the Agreement for Fiscal Year 2010 for consulting and facilitation services plus reasonable travel expenses and other customary reasonable and necessary expenses is not expected to exceed $55,000.W. MIWBE -- A waiver of -the goal for MMBE subcontracting requirements was requested by the Purchasing Divisiou and approved by tbb MIWBE Office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. FISCAL INFORMATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the General Fund. m&cfundIog,pj pp FROM Fund/Account/Centers GGO1 539120 0901100 Karen Montgomery (6222) Horatio Porter (2379) Horatio Porter (2379)