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
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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.
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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.
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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
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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
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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
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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.
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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:
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• 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.
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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.
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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: