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HomeMy WebLinkAboutContract 47534 g�011 12 CTS SECRETAI rJ r 1.0 , CONTRACTNO. ' FEB 2 A'�' ,N 401 PROFESSIONAL SERVICES AGREEMENT 1?' tv This PROFESSIONAL SERVICES AGREEMENT("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Susan Alanis, its duly authorized Assistant City Manager, and Industrial/Organizational Solutions, Inc. ("Agency"), an Illinois Corporation and acting by and through Chad Legel, its duly authorized President, each individually referred to as a"party"and collectively referred to as the"parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A—Statement of Work plus any amendments to the Statement of Work All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of delivering and scoring an entry-level firefighter examination. Agency shall provide the firefighter examination and electronic version of the study guide,and will be responsible for scoring the examination and providing rank-ordered scores to the City. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. 2. TERM. This Agreement shall commence February 24,2016 ("Effective Date")and shall expire on May 31, 2016, unless terminated earlier in accordance with the provisions of this Agreement. The City shall have the option, in its sole discretion, to renew this Agreement under the same terms and conditions,for up to five(5)successive(1)year terms, each a renewal term. 3. COMPENSATION. The City shall pay Agency a flat fee of$24,500 for the provision of the firefighter examination, study guide and sanring services. The total cost of test provided and worked performed under this agreement shall not exceed $24,500. Agency shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Agency not specified by this Agreement unless the City first approves such expenses in writing. Professional Services Agreement _ Industrial/Organizational Solutions,Inc. RV Page I of 12 FT. WORM, IrK 4. TERMINATION. 4.1. Convenience. The City or Agency may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Agency of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever,except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Breach. Subject to Section 27 herein, either party may terminate this Agreement for breach of duty, obligation or warranty upon exhaustion of all remedies set forth in Section 27. 4.4 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Agency for services actually rendered up to the effective date of termination and Agency shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Agency shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Agency has received access to City information or data as a requirement to perform services hereunder, Agency shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts.Agency hereby warrants to the City that Agency has made full disclosure in writing of any existing or potential conflicts of interest related to Agency's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement,Agency hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. Agency, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3 Unauthorized Access. Agency shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Agency shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Agency shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 2 of 12 protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Agency agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Agency involving transactions relating to this Contract at no additional cost to the City. Agency agrees that the City shall have access during normal working hours to all necessary Agency facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Agency reasonable advance notice of intended audits. Agency further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Agency shall operate as an independent contractor as to all rights and privileges and work performed under this agreement, and not as agent,representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Agency shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Agency acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Agency, its officers, agents, employees, servants, contractors and subcontractors. Agency further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Agency. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Agency or any officers, agents, servants, employees or subcontractors of Agency. Neither Agency, nor any officers, agents, servants, employees or subcontractors of Agency shall be entitled to any employment benefits from the City. Agency shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY - AGENCY SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND,ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH,TO ANY AND ALL PERSONS,OF ANY KIND OR CHARACTER,WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF AGENCY, ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 3 of 12 B.INDEMNIFICATION-AGENCY HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY HIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO AGENCY'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF AGENCY, ITS OFFICERS, AGENTS,SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Ji J Agency shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment,the assignee shall execute a written agreement with the City and the Agency under which the assignee agrees to be bound by the duties and obligations of Agency under this Agreement. The Agency and Assignee shall be jointly liable for all obligations of the Agency under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Agency referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Agency under this Agreement as such duties and obligations may apply. The Agency shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Agency shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,OOO,QOQ Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Agency, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned,hired and non-owned (c) Worker's Compensation-Statutory limits Employer's liability $100,000 Each accident/occurrence Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 4 of 12 $100,000 Disease-per each employee $500,000 Disease-policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Professional Liability(Errors&Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees,officers,officials,agents,and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth,Texas 76102,with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A-VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Agency has obtained all required insurance shall be delivered to the City prior to Agency proceeding with any work pursuant to this Agreement. Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 5 of 12 11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Agency agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Agency of any violation of such laws,ordinances, rules or regulations,Agency shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Agency, for itself, its personal representatives,assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Agency's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non- discrimination covenant by Agency, its personal representatives,assigns, subcontractors or successors in interest, Agency agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To the CITY: To Agency: City of Fort Worth Industrial/Organizational Solutions,Inc. Attn: Susan Alanis,Assistant City Manager Attn: Chad Legel 1000 Throckmorton 1127 S.Mannheim Rd. Suite 203 Fort Worth TX 76102-6311 Westchester IL 60154 Facsimile: (817)392-8654 708-410-0200(phone) 708-410-1558(fax) With Copy to the City Attorney At same address 14. SOLICITATION OF EMPLOYEES. Neither the City nor Agency shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent Agency, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 6 of 12 15. GOVERNMENTAL POWERSAMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Agency to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Agency's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVEI ING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted, at law or in equity,is brought pursuant to this Agreement,venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Agency shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law,ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority,transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only,shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 7 of 12 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument,which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference,contains the entire understanding and agreement between the City and Agency, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. COUNTERPARTS. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be considered an original, but such counterparts shall together constitute one and the same instrument and agreement. Any signature delivered by a party by facsimile or other electronic transmission (including email transmission of a portable document file (pdf) or similar image) shall be deemed to be an original signature hereto. 25. WARRANTY OF SERVICES. Agency warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Agency's option,Agency shall either(a)use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or(b)refund the fees paid by the City to Agency for the nonconforming services. 26. IMMIGRATION NATIONALITY ACT. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Agency shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Agency shall complete the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Agency shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Agency shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Agency shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Agency. 27. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Agency has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 8 of 12 discovering the claim,dispute,or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10)business days of receipt of the notice,both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of,or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non-binding mediation in Tarrant County, Texas,upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process,the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may,before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 28. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement and any amendment hereto, may be executed by any authorized representative of Agency whose name, title and signature is affixed on the Verification of Signature Authority Form,which is attached hereto as Exhibit f°B" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 29. OWNERSHIP OF WORK PRODUCT. The entry-level firefighter test and study guide being provided to the City is and shall remain the exclusive property of Agency. No ownership or rights to Agency's copyrighted materials are conferred through this agreement. City shall be the sole and exclusive owner of all score reports and analysis provided by Agency to City. [SIGNATURE PAGE FOLLOWS] Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 9 of 12 IN W T SS WHEREOF,the parties hereto have executed this Agreement in multiples this�day of ACCEPTED AND AGREED: ORGANIZATION.- CITY RGANIZATION.CITY OF FORT WORTH: By: By; Name: eltt,, C y Name. Susan Alanis Title: f:� AsaKtant City Manager Date: c� - 3 / ;� Date: ATTEST: APPROVAL7COanj MENDED: _7� Y : a rim d 'S �l �., �./ By me: Brian icicerson Title: V. Co.,s 14"V<' S erg C_ w Title: Hung n Resources Director 0 , `7s ATTEST• o � �O �� �$ By: $ o aKy $ ° 0 City Sec °9Ooonua�'�4�� A APPROVED .AS TO FORM AND LEGALITY: By A Name: Guillermo (Will) S. Trevino Assistant City Attorney CONTRACT AUTHORIZATION: M&C: Not Required Date Approved: N/A 1295 Forin: Not Required En "ql Professional Services Agreement ? ' !ti Industrial/Organizational Solutions,Inc. �R�b'q�� Page 10 of 12 � h 1� EXHIBIT A STATEMENT OF WORK Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 11 of 12 �w Y INDUSTRIALIORGANIZATI❑NAL SOLUTIONS February 9, 2016 Vj r ItCI, II. 5u1 � Harold Cates 0 4 1 ` ) ) Human Resources Department 18 City of Fort Worth 1011011.1 01(1 lic� .tetyr�:r!Lill!nelli mil SENT VIA ELECTRONIC MAIL Mr. Cates: 1/0 Solutions will provide the National Firefighter Selection Inventory (NFSI) to the City of Fort Worth to be used as an entry-level firefighter screening tool. 1/0 Solutions will assess the City a flat rate of$24,500 for the one-time use of the NFSI. While IOS expects that the City will not require more than 1,400 exams, should additional exams be needed, they will be supplied for no additional cost. All unused exams will be returned to 1/0 Solutions. IOS will supply a form of the NFSI that has not been recently used in the Dallas/Ft. Worth area and is different from the form used by Ft. Worth in 2013. 1/0 Solutions will provide a .pdf file of the NFSI Study Guide that can be posted on the City's website or distributed electronically. This .pdf file will be removed from the website and distribution will be terminated at the time of the administration of the NFSI test. Best regards, Chad Legel, M.S. President(CEO ,r Public Safety Selection Experts EXHIBIT C SIGNATURE VERIFICATION FORM Full Legal Name of Company: Industrial/Organizational Solutions,Inc. Legal Address: 1127 S. Mannheim Rd. Suite 203 Westchester IL 60154 Services to be provided: Entry-level firefighter examination Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten(10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. Name: ('A,j Position: Signature 2. Name:?,,,_, P sition: t/ic{ Signature 3. Name: Position: Signature Name: Signature of!Pr�estden CrEO Other Title:' 1 Date: d- le-/F Professional Services Agreement Industrial/Organizational Solutions,Inc. Page 12 of 12