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2009-052ORDINANCE NO. 0100 9 --0 5g AN ORDINANCE TO THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON AND MARKETSPHERE CONSULTING, LLC FOR A FIXED ASSET/JOB COST SYSTEM NEEDS ASSESSMENT AND GAP ANALYSIS; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE (RFSP 4225-FIXED ASSET/JOB COST SYSTEM NEEDS ASSESSMENT JD EDWARDS FIXED ASSET/JOB COST SYSTEM GAP ANALYSIS AWARDED TO MA.RKETSPHERE CONSULTING, LLC IN AN AMOUNT NOT TO EXCEED S 194,93 0). WHEREAS, the professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. The City Manager is hereby authorized to enter into a professional service contract with MarketSphere Consulting, LLC, to provide professional consulting services for a Fixed Asset/Job Cost System Assessment and Gap Analysis, a copy of which is attached hereto and incorporated by reference herein. SECTION II. The City Manager is authorized to expend funds as required by the attached contract. SECTION III. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION IV. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2009. MARK . B O, • HS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: *u I APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY 3 -ORD 'le 4225 PROFESSIONAL SERVICES AGREEMENT FOR RFSP- 4225 FIXED ASSET/JOB COST SYSTEM NEEDS ASSESSMENT JD EDWARDS FIXED ASSET/JOB COST SYSTEM GAP ANALYSIS STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the day of , 2009, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and MarketSphere Consulting, LLC, with its corporate office at 909 Lake Carolyn Parkway Suite 1900 Irving, TX 75039 hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, Fixed Asset/Job Cost System Needs Assessment JD Edwards Fixed Asset/Job Cost System Gap Analysis ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: The CONSULTANT shall perform all those services as necessary and as described in the OWNER's RFSP 4225-Fixed Asset/Job Cost System Needs Assessment JD Edwards Fixed Asset/Job Cost System Gap Analysis, which is on file in the office of the Purchasing Agent as Exhibit "A" and is incorporated by reference as if set forth fully herein. A. To perform all those services set forth in CONSULTANT's Proposal for Professional Services dated January 12, 2009, which proposal is on file in the office of the Purchasing Agent as Exhibit "B" and is incorporated by reference as if set forth fully herein. B. CONSULTANT shall perform all those services set forth in individual task orders (Exhibit B and Exhibit D) which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. C. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders. ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee. ARTICLE IV COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of "to be determined". 2. "Direct Non-Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "C" which is attached hereto and is incorporated by reference as if set forth fully in this Agreement. Exhibit C or other similar documents that may be executed by OWNER and CONSULTANT will contain all pertinent hourly rates or fixed fee arrangements (if appropriate). The "Project Arrangements" are included in Exhibit D. Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The Page 2 OWNER may withhold the final five percent (5%) of the contract amount until completion of the Project. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER. The CONSULTANT shall not proceed to perform any additional services without obtaining prior written authorization from the OWNER. C. PAYMENT: If the OWNER fails to make undisputed payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, prompt payment act interest as set forth in Chapter 2251 of the Texas Government Code shall be paid on the amounts due the CONSULTANT. In addition, the CONSULTANT may, if it has not received payment by the thirty-first (31") day after receipt of invoice, after giving ten (10) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay prompt payment act interest if the OWNER has a bona fide dispute with the CONSULTANT concerning the payment or if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." OWNER must promptly notify CONSULTANT in writing if any work is determined to be unsatisfactory or if there is a bona fide dispute. ARTICLE V OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants. ARTICLE VI OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. Page 3 In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE VII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE VIII INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE IX INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. Page 4 C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE X ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to mediation. No mediation arising out of or relating to this Agreement may proceed without the agreement of both parties to submit the dispute to mediation. The location for the mediation shall be the City of Denton, Denton County, Texas unless a different location is agreed to by the parties. ARTICLE XI TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article N "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Page 5 Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. CONSULTANT retains design responsibility and liability at all times during this Agreement and after completion of this Agreement. ARTICLE XIII NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: MarketSphere Consulting, LLC Director of Corporate Services 1125 S 103`d Street, Suite 400 Omaha, NE 68124 To OWNER: City of Denton Bryan Langley, Director of Finance 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XIV ENTIRE AGREEMENT This Agreement, consisting of 15 pages and four exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. Page 6 ARTICLE XV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XVI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XVII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIII PERSONNEL A. The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by the CONSULTANT or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. C. In those instances deemed necessary by the OWNER, the CONSULTANT, its employees and/or its Sub-consultants shall be required to submit to background checks. ARTICLE XIX ASSIGNABILITY The CONSULTANT shall not assign any of its scope of work under in this Agreement, and shall not transfer any of its scope of work under this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER. Should the CONSULTANT assign any part of the monies due under this Agreement, CONSULTANT is Page 7 required to provide written notice of the same to OWNER. Any assignment of monies due under this Agreement shall not change any of the terms or conditions of this Agreement to include but not limited to the terms and conditions for payment under this Agreement. ARTICLE XX MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE XXI MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: (list exhibits) B. CONSULTANT agrees that OWNER shall, until the expiration of five (5) years after the final payment or after final completion of all work required under this Agreement, whichever is longer, have access to and the right to examine any directly pertinent books, documents, papers, correspondence, to include e-mails, and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT is required to maintain and make available all electronic records associated with this Agreement for purposes of examination. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. OWNER shall give CONSULTANT reasonable advance notice of intended audits. This paragraph shall work in conjunction with the Audit provision set forth in Article XXII. C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Greg Davis. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. CONSULTANT understands that OWNER is to be informed of the removal or loss of any of the key persons working under this Agreement. CONSULTANT also agrees to provide the OWNER with notice of the name(s) of who it intends to replace the key person. OWNER shall have a right to reasonably reject any Page 8 replacement key person(s) and CONSULTANT agrees to name a replacement key person(s) acceptable to the OWNER. E. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. G. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. ARTICLE XXII RIGHT TO AUDIT The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONSULTANT shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the CONSULTANT shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an overpayment of I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONSULTANT which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. Page 9 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has execute this Agreement through its duly authorized undersigned officer on this the day of , 2009. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: t ~ ;6-" APPR VED TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CONSULTANT WITNESS: BY: CITY OF DENTON INSURANCE REQUIREMENTS FOR CONSULTANTS/CONTRACTORS The Offeror'sBidder's attention is directed to the insurance requirements below. It is highly recommended that offerors/bidders confer with their respective insurance carriers or brokers to determine in advance of its proposal or bid submission tlhe availability of insurance certificates and endorsements as prescribed and provided herein. If an offeror/apparent low bidder fails to comply strictly with the insurance requirements, that offeror/bidder may be disqualified from award of the contract. Upon award, all insurance requirements shall become contractual obligations, which the successful offeror/bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Consultant/Contractor, the Consultant/Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of award, Consultant/Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the proposal/bid number and title of the project. Consultant/Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Consultants/Contractors are strongly advised to make such requests prior to proposal/bid opening, since the insurance requirements may not be modified or waived after proposal/bid opening unless a written exception has been submitted with the proposal/bid. Consultant/Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A. • Any deductibles or self-insured retentions shall be declared in the proposal or bid. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the Consultant/Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: Page 11 • Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. • That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims-made form, Consultant/Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Consultant/Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. Page 12 SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: LXJ A. General Liability Insurance: General Liability insurance with combined single limits of not less than $500,000.00shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. LXJ Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non-owned autos. LXJ Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). U Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate. U Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. LX_] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000 annual aggregate with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. I_J Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. U Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than each occurrence are required. Page 14 L] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Page 15 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. I I Name of person who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the Ph business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? E:1 N 0 Y o es B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El Yes EJ No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? 0 N 0 Y o es D. Describe each affiliation or business relationship. 4 Signature of person doing business with the governmental entity Date Adopted 0612912007 Page 16 Exhibit C OpmarkatSphere Good Thinking at Work February 18, 2009 Mr. Bryan Langley Director of Finance City of Denton 215 East McKinney Denton, Texas 76201 Dear Bryan, This letter outlines MarketSphere's response to your request for information dated February 16, 2009. We believe that we have addressed the major concerns identified by the City of Denton. MarketSphere recognizes the limited availability of internal resources and we have altered our plan and resource model accordingly. Our intent is to maximize value to you while minimizing your internal time and costs - and also to minimize the costs associated with MarketSphere services and travel. MarketSphere is willing to accept greater responsibility and risk ownership on the initial assessment. The hours initially proposed for the City of Denton involvement with the assessment are not critical for the delivery of the assessment project. Our experience of assisting organizations with similar projects is that greater client involvement in the assessment project allows the client to take on a larger role during the implementation, thereby reducing the cost of implementation and building ownership for the ongoing program. We understand from the discussion on Monday, that resources are likely limited for both projects and have revised our estimate assuming a minimal level of involvement for the City of Denton in the assessment project. Please see the below answers to your questions. We would appreciate the opportunity to discuss these with you in the near future. Thank you again for your time and consideration. Very Truly Yours, Greg Davis Qreg.davis(a--)marketsphere.com 816-559-0620 (w) 913-568-3914 (c) Greg VerMulm greg.vermulm(a)-marketsphere.com 816-559-0624 (w) 913-484-8239 (c) Melody Orrantia melody.orrantia(a)marketsphere.com 972-868-5026 (w) 214-697-7760 (c) Mr. Bryan Langley Response to February 16, 2009 Information Request February 18, 2009 What is Marketsphere's best and final fee estimate, including estimated travel expense? MarketSphere is committed to building a partnership with the City of Denton. We have lowered the hourly rate from our original proposal by $15 per hour. We estimate the professional fees of this project at $174,930. We estimate the travel expenses of this project at $20,000. Therefore, the total cost of the project to the City of Denton is estimated at $194,930. The MarketSphere resource model to support the above estimates is shown below. Il. What is your best estimate of hours allocation of Marketsphere's team and the City of Denton team? We have minimized the time commitment for City of Denton team members by reducing hours and eliminating or altering some of the project roles. A Project Coordinator can be assigned by the City of Denton to act as a liaison between the MarketSphere team and the various departments. This resource can facilitate and expedite communication and interaction between the City's subject matter experts and the consulting team. For the City of Denton, we suggest the following resource model: Hours Per Individual Resource Role Steering Committee Potential Resources Representatives from the Oral Presentation April 2 May 2 June 2 Total 6 Project Sponsor Bryan Langley 8 8 8 24 Project Coordinator TBD (1 resource) 32 32 32 96 IT / Infrastructure Lead Bobbie Arashiro 16 16 16 48 Dept Resources for F/A and Project Cost 1-2 resources from each department F 20 8 8 36 For the MarketSphere team, we estimate the following roles which have been modified slightly from the original proposal: Resource _t, Role A Markets here Soluti on 71 ;z,Office. Flours-` lames Talley Project Lead JD Edwards Dallas 454 Bryan West Project Analyst JD Edwards Indianapolis 335 Greg VerMulm Project Advisory - Finance JD Edwards Kansas City 64 Greg Davis Project Advisory - Asset Management JD Edwards Kansas City 64 Craig Davied SME - Project Costing JD Edwards Kansas City 64 Bill Harding SME - Reporting & Analytics/Industry Enterprise Performance Management Houston 20 Carl Rizzo SME - Government IT Business Advisory - Finance Pittsburgh 20 Dan Sills QA Partner - FERC/GAAP/GASB/Utilities Business Advisory - Finance St. Louis 8 Melody Orrantia* Relationship Manager Client Satisfaction Dallas 40* *non-billable 2 Mr. Bryan Langley Response to February 16, 2009 Information Request February 18, 2009 Ill. Do you have any suggestions in changes of the project approach that would reduce Denton's time requirements? We have reduced Denton resource time requirements by minimizing their involvement in the project. MarketSphere will also implement weekly status updates, issue updates, and communication summaries to maximize Denton's visibility to project health and progress. MarketSphere will produce documentation deliverables and allow Denton resources adequate time to review and approve. IV. Is there any additional contract language Marketsphere would require besides that included in the RFP sample? As discussed today, Tom Shaw from the City of Denton Purchasing Department will provide for our review a modified contract that is more appropriate for consulting services. Kim Sucha of MarketSphere will provide any requested edits back to Bryan and Tom by end of day Thursday February 19, 2009. V. Can you provide Marketsphere's financial statement or supporting financial documents? These documents will be sent in a separate email. Exhibit D Project Assumptions City of Denton will assign a Project Coordinator resource who will facilitate and expedite communication and interaction between the City's subject matter experts and the consulting team MarketSphere will report any non-responsive City of Denton work tasks and information or access requests to Bryan Langley (e.g. requests outstanding greater than 48 hours) • Refer to proposal dated January 12, 2009 (Exhibit "B") for additional project assumptions Project Arrangements MarketSphere's fees for the activities described in this agreement will be billed on a time and materials basis, plus actual out-of-pocket expenses. Out-of-pocket expenses (including transportation, hotels, meals, etc.) will be billed at the actual amounts incurred not-to-exceed 15% of fees. Professional fees and expense estimates for this project have been provided in Exhibit C. MarketSphere will bill in accordance with the following billing schedule: Billing. Desction Billing Details I ~'"B Date„ i2 April Billing Actual hours incurred, plus expenses April 30, 2009 May Billing Actual hours incurred, plus expenses May 31, 2009 June Billing Actual hours incurred, plus expenses June 30, 2009 July Billing Actual hours incurred, plus expenses July 31, 2009 Change Order Process During the project either party may request, in writing in a form substantially similar to Marketsphere's standard form of change order (see form attached hereto), additions, deletions, or modificationsto the scope or nature of the Services described in this Statement of Work (all referred to hereinafter as "Changes"). MarketSphere shall have no obligation to commence work in connection with any Change until the fee and/or schedule impact of the Change is agreed upon in a written change order signed by both MarketSphere and Client. Upon a request for a Change, Market here shall submit a proposal to Client on MarketSphere's standard change order form (or in a form substantially similar to MarketSphere's standard change order form attached hereto) describing the Changes, including, as applicable, the impact of such Changeson schedule and fees and expenses, Within 5 days of receipt of the proposed change order, Client shall either indicate its acceptance of the proposed Changes by signing the change order or advise MarketSphere not to perform the Changes, in which event Market here shall proceed with the original Services. The Exhibit D foregoing notwithstanding, if Market here, at the request of or with notice to Client, performs work that is not covered by this Statement of Work or that exceedsthe scope of Services described in this Statement of Work, such work shall be deemed Services provided pursuant to this Statement of Work, for which Client shall compensate MarketSphere at the same rates as those described under Exhibit C. Exhibit D MarketSphere Consulting Statement of Work Change Order Number [date] [Client contact name] [complete legal name of Client entity] [Client address] Dear [Client contact name]: This Change Order, including any appendices, schedules, and/or attachments, documents changes to the Statement of Work between MarketSphere Consulting, LLC ("MarketSphere") and [Client's complete legal name] ("Client") dated , 200_, including any prior Change Order(s) or amendments thereto (the "Statement of Work"). This Change Order constitutes the entire understanding and agreement between Client and MarketSphere with respect to such changes, supersedes all prior oral and written communications with respect to such changes (including, but not limited to, written change requests), and may be amended, modified or changed only in writing when signed by both parties. The section(s) of the Statement of Work set forth below is/are hereby amended, effective as of the date first written above, by adding at the conclusion of the respective section(s) the following text: Project Scope and Objectives [describe any changes to this section here or, if there are none, delete this form field along with the section label immediately above] MarketSphere Services and Responsibilities [describe any changes to this section here or, if there are none, delete this form field along with the section label immediately above] Deliverables [describe any changes to this section here or, if there are none, delete this form field along with the section label immediately above] Acceptance [describe any changes to this section here or, if there are none, delete this form field along with the section label immediately above] Exhibit D Client Responsibilities [describe any changes to this section here or, if there are none, delete this form field along with the section label immediately above] Project Assumptions [describe any changes to this section here or, if there are none, delete this form field along with the section label immediately above] Project Approach [describe any changes to this section here, including the impact any other changes herein will have on schedule, or, if there are none, delete this form field along with the section label immediately above] Staffinq [describe any changes to this section here or, if there are none, delete this form field along with the section label immediately above] Fees & Expenses [describe the impact that any changes above will have on fees and expenses or, if there is none, delete this form field along with the section label immediately above] Except as expressly modified herein, all other terms and conditions of the Statement of Work and the Standard Business Terms remain unchanged. Please indicate your agreement to these arrangements by signing and returning to MarketSphere the enclosed copy of this Change Order. Very truly yours, MARKETSPHERE CONSULTING, LLC By: Officer Acknowledged and Accepted: [CLIENT'S COMPLETE LEGAL NAME] By: Title: Date: