HomeMy WebLinkAboutContract 39748CITY SECRETARY
C®NTR,P,CT NO,
3
AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and
entered into by and between THE CITY OF FORT WORTH, a home -rule municipal
corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant
City Manager, and FIRST SOUTHWEST COMPANY, a Delaware Corporation authorized to
do business in the State of Texas ("Consultant"), acting by and through its duly authorized
Senior Vice President.
1. Scope of Services. The Fort Worth City Manager has appointed a Pension Benefits
Committee ("Committee") to review and discuss pension benefits for retired employees based on
the City of Fort Worth's ability to pay for those benefits. Consultant covenants and agrees, with
good faith and due diligence, to provide financial advice and guidance to the Committee, City
staff, and the Committee Facilitator as they research, prepare, and review financial and actuarial
data and develop recommendations to the City Manager regarding pension benefits.
h particular, Consultant will perform the following consulting functions:
a) Provide guidance to the Committee in formulating questions and data requests to be
posed to actuaries in an effort to elicit information that will be most beneficial to the
Committee in conducting its inquiry and fulfilling its purpose.
b) Explain possible financing, rating, and budget implications of alternative accrual and
funding strategies that might be employed.
c) Perform analyses and calculations related to budget volatility and funding that are being
considered.
d) Investigate the effects of different funding strategies on the Retirement Fund's eligibility
for partial State and Federal reimbursement of benefit costs.
e) Provide comparisons with other public entities in the areas of: benefit structure,
allocation of contributions as between employers and employees, benefit eligibility
criteria, participation levels, and cost. To the extent possible, Consultant shall include
other similar Texas public entities when presenting comparisons.
f) Locate and/or provide other background articles and research that, in Consultant's
opinion, will be beneficial to the Committee as it performs its analysis.
g) Respond to ad hoc requests from the Committee.
Consultant's listed duties shall include "on site" personal attendance by Consultant's employees
at meetings with City staff, Committee members, and the Committee facilitator -requested as
needed by City staff, Committee members, and the Committee F M1 APIA1kFgP,
CITY SECRETARY
FT. WORTH, TX
Professional Services Agreement with FIRST SOUTHWEST COMPANY
Consultant will interact frequently with the City staff and the Committee Facilitator to obtain
data and discuss results. Consultant shall also maintain appropriate documentation of all work
performed. All actions and objectives described above are referred to in this Agreement as the
"Services."
2. Tenn. This Agreement shall govern Services provided by Consultant for arsine -month
period, beginning February 15 2010 and ending October 31, 2010, unless terminated earlier in
accordance with Section 5 of this Agreement.
3. Compensation.
a) Fee
As full and complete compensation, Consultant shall be paid a total consultation fee not
to exceed Twenty -Five Thousand Dollars ($25,000.00), such fee to be billed and paid in
accordance with Subsection 3(b). This not -to -exceed amount may only be increased by
execution of a written amendment to this Agreement. Consultant understands and
acknowledges that any proposed increase may require specific approval from the Fart
Worth City Council.
b) Structure of Payments
i. Consultant's fee shall be paid for the work performed by its employees according
to the following rate schedule:
Managing Director /Executive Vice President /
Senior Vice President
$250.00
per
hour
Vice President
$200.00
per
hour
Assistant Vice President / Associate
$150.00
per
hour
Administrative Assistant
$ 75.00
per
hour
The amounts listed shall be billed and paid in quarter-hour increments.
Professional Services Agreement with FIRST SOUTHWEST COMPANY Page 2 of 10
ii No later than the 15th day of each month, Consultant will provide City with a
signed invoice detailing (1) the name and title of each individual who provided
work to or on behalf of the Committee during the previous month, (2) the dates
and times of such work, (3) the total number of hours such individual worked
during the previous month, (4) the total amount of fee due for such individual for
the previous month, and (5) the total compensation due from the City for all such
individuals. If the City requires additional reasonable information, it shall request
the same promptly, and the Consultant shall provide such additional reasonable
information to the extent the same is available.
iii. Unless there is a dispute or contest regarding the billing, invoices are due and
payable within 30 days of receipt.
iv. In the event of a disputed or contested billing, only the portion being contested
will be withheld from payment, and the undisputed portion will be paid. City will
exercise reasonableness in contesting any bill or portion thereof No interest will
accrue on any contested portion of the billing until the contest has been mutually
resolved.
v. For contested billings, the City shall make payment in full to Consultant within 60
days of the date the contested matter is resolved. If City fails to make such
payment, Consultant may, after giving 7 days' written notice to City, suspend
services under this Agreement until paid in full, including interest calculated from
the date the billing contest was resolved. In the event of suspension of services,
Consultant shall have no liability to City for delays or damages caused to City
because of such suspension of services.
4. Termination. Either Party may terminate this Agreement at any time, with or without cause,
bWY providing thirty days' written notice of termination. In the event this Agreement is
terminated prior to expiration of the Term, City shall pay Consultant only for services
actually rendered as of the effective date of termination.
Professional Services Agreement with FIRST SOITTHWEST COMPANY Page 3 of 10
5. Irtdependent Contractor. Consultant shall operate hereunder as an independent contractor
and not as an officer, agent, servant, or employee of City. Consultant shall have exclusive
control of and the exclusive right to control the details of the services performed hereunder,
and all persons performing same, and shall be solely responsible for the acts and omissions of
its officers, agents, servants, employees, and subcontractors. The doctrine of respondent
superior shall not apply as between the City and Consultant, its officers, agents, servants,
employees, or subcontractors. Nothing herein shall be construed as creating a
partnership or joint enterprise between City and Consultant. It is expressly understood
and agreed that no officer, agent, servants, employee, or subcontractor of Consultant is in the
paid service of City.
6. Insurance. During the term of this Agreement, Consultant shall procure and maintain
at a!I times, in full force and effect, a policy or policies of insurance that provide the
specific coverage set forth in this Section as well as any and all other public risks
related to Consultant's performance of its obligations under this Agreement.
Consultant shall specifically obtain the following types of insurance at the following
limits:
• Commercial General Liability:
$1,000,000 per occurrence; providing blanket contractual liability insurance products and
completed operations; independent contractor's liability; and coverage for property
damage to City facilities; and
• Errors &Omissions (Professional Liability);
If coverage is written on a claims -made basis, the retroactive date shall be coincident
with or prior to the date of the contractual agreement. The certificate of insurance shall
state that the coverage is claims -made and include the retroactive date. The insurance
shall be maintained for the duration of the contractual agreement and for five (5) years
following completion of the service provided under the contractual agreement or for the
warranty period, whichever is longer. An annual certificate of insurance submitted to the
City shall evidence coverage. Coverage shall be in the following amounts:
(1} $1,0001000 per occurrence or claim
Professional Services Agreement with FIRST SOUTHWEST COMPANY Page 4 of 10
(2) $1,000,000 aggregate
Consultant shall promptly provide the City with certificates of insurance that verify
Consultant's compliance with the insurance requirements of this Agreement. The City's
Risk Manager shall have the right to review and evaluate Consultant's insurance coverage
and to make reasonable requests or revisions pertaining to the types and limits of that
coverage. Consultant shall comply with such requests or revisions as a condition precedent
to the effectiveness of this Agreement.
7. Assignment. Consultant shall not assign or subcontract all or any part of its rights,
privileges, or duties under ibis Agreement without the prior written consent of City. Any
attempted assignment of subcontract without the City's prior written approval shall be void
and constitute a breach of this Agreement.
If City grants consent to an assignment, the assignee shall execute a written agreement with
the City and the Consultant under which the assignee agrees to be bound by the duties and
obligations of Consultant under this Agreement. The Consultant and Assignee shall be
jointly liable for all obligations under this Agreement prior to the assignment. If the City
grants consent to a subcontract, the subcontractor shall execute a written agreement with the
Consultant referencing this Agreement under which the subcontractor shall agree to be bound
by the duties and obligations of the Consultant under this Agreement as such duties and
obligations may apply, The Consultant shall provide the City with a fully executed copy of
any such subcontract.
8. Compliance with Law. Consultant, its officers, agents, servants, employees, and
subcontractors, shall abide by and comply with all laws, federal, state and local, including all
ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the
attention of Consultant any such violation on the part of Consultant or any of its officers,
agents, servants, employees, or subcontractors, then Consultant shall immediately desist from
and correct such violation.
Professional Services Agreement with FIRST SOTJTIIWEST COMPANY Page 5 of 10
9. Non -Discrimination. In the execution, performance, or attempted performance of this
Agreement, Consultant will not discriminate against any person or persons because of
disability, age, familial status, sex, race, religion, color, national origin, or sexual orientation,
nor will Consultant permit its officers, agents, servants, employees, or subcontractors to
engage in such discrimination.
This Agreement is made and entered into with reference specifically to Chapter 17, Article
III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment
Practices"), and Consultant hereby covenants and agrees that Consultant, its officers, agents,
employees, and subcontractors have fully complied with all provisions of same and that no
employee or employee -applicant has been discriminated against by either Consultant, its
officers, agents, employees, or subcontractors.
10. Right to Audit. Consultant agrees that the City shall, until the expiration of three (3) years
after final payment under this Agreement, have access to and the right to examine any
directly pertinent books, documents, papers and records of the Consultant involving
transactions relating to this Agreement. Consultant agrees that the City shall have access
during normal working hours to all necessary Consultant facilities and shall be provided
adequate and appropriate workspace in order to conduct audits in compliance with the
provisions of this section. The City shall give Consultant reasonable advance notice of
intended audits.
Consultant further agrees to include in alI of its subcontractor agreements hereunder a
provision to the effect that the subcontractor agrees that the City shall, until the expiration of
three (3) years after final payment under the subcontract, have access to and the right to
examine any directly pertinent books, documents, papers and records of such subcontractor
involving transactions to the subcontract, and further that City shall have access during
normal working hours to all subcontractor facilities and shall be provided adequate and
appropriate workspace in order to conduct audits in compliance with the provisions of this
section. City shall give subcontractor reasonable advance notice of intended audits.
Professional Services Agreement with FIRST SOUTHWEST COMPANY Page 6 of 10
This section shall survive the expiration or termination of this Agreement.
11. Fiscal Fundin6. In the event no funds or insufficient funds are appropriated by the City in
any fiscal period for any payments hereunder, City will notify Consultant of such occurrence
and this Agreement shall terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to City of any kind whatsoever,
except as to the portions of the payments herein agreed upon for which funds shall have been
appropriated.
12. Venue and Jurisdiction. This Agreement shall be construed in accordance with law of the
State of Texas. Should any action, whether real or asserted, at law or in equity, arise out of
the execution, performance, attempted performance of this Agreement, venue for said action
shall lie in Tarrant County, Texas.
13. Notices. Notices to be provided hereunder shall be sufficient if forwarded #o the other Party
by hand -delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of
the other Party shown below:
Karen L. Montgomery, Assistant City Manager
CITY OF FORT WORTH
1000 Throckmorton St.
Fort Worth, Texas 76102
{817) 392-6222
with copy to:
Denis C. McElroy, Assistant City Attorney
CITY OF FORT WORTH
1000 Throckmorton St.
Fort Worth, Texas 76102
(817) 392-2758
Brian Whitworth ,Senior Vice President
FIRST SOUTHWEST COMPANY
325 North St. Paul Street, Suite 800,
Has, TX 75201-3852
214.953.4217
14. Non -Waiver. The failure of either Party to insist upon the performance of any term or
provision of this Agreement or to exercise any right herein conferred shall not be construed
Professional Services Agreement with FIRST SOUTHWEST COMPANY Page 7 of 10
as a waiver or relinquishment to any extent of City's or Consultant's right to assert or rely on
any such term or right on any future occasion.
15. Disclosure of Conflicts and Conf dential Information. Consultant hereby warrants to the City
that Consultant has made full disclosure in writing of any existing or potential conflicts of
interest related to Consultant's provision of the services. In the event that any conflicts of
interest arise after the execution of this Agreement, Consultant hereby agrees to make full
disclosure to the City in writing immediately upon learning of such conflict.
The City acknowledges that Consultant may use products, materials, or methodologies
proprietary to Consultant. The City agrees that Consultant's provision of services under this
Agreement shall not be grounds for the City to have or obtain any rights in such proprietary
products, materials, or methodologies unless the Parties have executed a separate written
agreement with respect thereto. Notwithstanding the foregoing, Consultant understands and
agrees that the City is subject to various public information laws and regulations, including,
but not limited to, the Texas Public Information Act. Consultant, for itself and its officers,
agents, servants, employees, and subcontractors, further agrees that it shall treat all
information provided to it by the City as confidential and shall not disclose any such
information to any third party without the prior written approval of the City.
16. Minority and Woman Business Entemrise Participation. In accordance with City Ordinance
No. 15530, the City has goals for the participation of minority business enterprises and
woman business enterprises ("M/WBE") in City contracts. Consultant acknowledges the
M/WBE goal established for this Agreement and its commitment to meet that goal. Any
misrepresentation of facts (other than a negligent misrepresentation) and/or the commission
of fraud by the Consultant may result in the termination of this Agreement and debarment
from participating in City contracts for a period of time of not less than three (3) years.
17. Governmental Powers. Both Parties agree and understand that the City does not waive or
surrender any of its governmental powers by execution of this Agreement.
Professional Services Agreement with FIRST SOUTHWEST COMPANY Page 8 of 10
18. Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired.
19. Force Majeure. If either Party is unable, either in whole or part, to fulfill its obligations
under this Agreement due to acts of God; strikes, locicouts, or other industrial disturbances;
acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises;
earthquakes; fires; floods; restraints or prohibitions by any court, board, department,
commission, or agency of the United States or of any state; declaration of a state of disaster
or emergency by the federal, state, county, ar City goverment in accordance with applicable
law; any arrests and restraints; civil disturbances; or explosions; or some ocher reason beyond
the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so
affected by such Force Majeure Event will be suspended only during the continuance of such
Event.
20. Headings not Controlling. Headings and titles used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
21. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall
be binding unless the same is in writing, dated subsequent to the date hereof, and duly
executed by the parties hereto.
22. Entire Agreement. This written instr<lment (together with any attachments, exhibits, and
appendices) constitutes the entire understanding between the Parties concerning the work and
services to be performed hereunder, and any prior or contemporaneous, oral or written
agreement that purports to vary from the terms hereof shall be void.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Professional Services Agreement with FIRST SOITTHWEST COMPANY Page 9 of 10
EXECUTED in multiple originals on this, the day of Im y, 2010.
CITY OF FORT WORTH, TEXAS
Karen L. Montgomery v
Assistant City Manager
Date Signed:
ATTEST:
City Secretary
APPROVED AS TO FORM
�V
FIRST SOUTHWEST COMPANY
Brian Whitworth
Senior Vice Preside ft
Date Signed:
WITNESS:
CORPORATE SEAL:
Assistant City��rney ���.°o �/ � o°
A o
j
No M&C Required i��(�a'r
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Professional Services Agreement with FII2ST SOUTFPJVEST COMPANY Page 10 of 10