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CONTRACT NO. 9 ,fir
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
EMI► 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,A9 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.
i. 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
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2. Seven Thousand Three Hundred Dollars and No Cent ($7,300.00) 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 ($10,950.00)
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 information, 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
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.
£ Consultant shall not perform any additional services for the City not specified by this
Agreement unless the City requests and approves in writing the additional costs for such services. The
City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless
the City first approves such expenses in writing.
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4. TERMINATION.
a. Termination for Convenience.
i. 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 final 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
Agreement.
C. Non-appropriation 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
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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 final
payment under this Agreement,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 order to conduct
audits in compliance with the provisions of this 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 further agrees that nothing herein shall be construed as the
creation of a partnership or joint enterprise between City and Consultant.
8. LL4,BILITY 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 ACTS)
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,FROMAND AGAINST ANYAND ALL CLAIMS OR LAWSUITS
FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING, BUT NOT LIMITED TO,
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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 SUBCONTRACTING.
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 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.
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 limits
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consistent with statutory benefits outlined in the Texas workers'
Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ.
Stat.) and minimum policy limits 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) days' notice of cancellation or reduction in limits of
coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-
payment of premium. Such terms shall be endorsed onto Consultant's insurance policies.Notice shall be
sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, 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 or 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.
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13. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined
to have been delivered when (1) hand-delivered to the other parry, 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: To CONSULTANT:
City of Fort Worth EMD Consulting Group,LLC
Assistant City Manager Attn: Richard H. Daley
1000 Throckmorton Street 140 Foothills Drive
Fort Worth,TX 76102-6311 Henderson,NC 28792
Facsimile: (817)392-8654 Facsimile: none
To the City Attorney at the same address.
14. SOLICITATION OF EMPLOYEES.
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
independent contractor, any person who is or has been employed by the other during the term of this
Agreement,without the prior written consent of the person's employer.
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 real 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
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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 pact 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 EMD CONSULTING GROUP,LLC
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By; By: ,��o
san Alanis Richard H.Daley
Assistant City Manager Member
Date: — Date:
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Professional Services Agreement—ENM Consulting,LLC Page 9 of it
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 organizations (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.
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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
Botanic 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
interview with the candidate to probe into that person's background, understand any gaps
in 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 finalists and the final 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
interviews by the City and assist the City with any and all interviews of the finalists.
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.
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