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HomeMy WebLinkAboutContract 38615 (2)ry SEC ETAP CON RACT NO % AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into by and between THE CITY OF PORT WORTH, a home -rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and THE RETIREMENT STORE, INC. ("Consultant"), acting by and through its duly authorized President. 1. Scope of Services. Consultant covenants and agrees, with good faith and due diligence, to assist the City in the development and implementation of an oversight committee (the "Committee") to direct and supervise the activities of the Third Party Administrators of the City's deferred compensation plan (the "457 Plan" or "Plan") a In particular, Contractor will assist the City in a) Determining and defining (by way of enabling documents, such as a charter) the appropriate authority, activities, and composition for the Committee. b) Establishing criteria to be used in selecting members for the Committee to ensure that the members represent a diversified cross section of employee participants. Criteria shall include a requirement that each Committee member be a plan participant, a subject matter expert, or both. c) Educating Committee members on their roles and responsibilities to the City and to Plan participants and imparting to Committee members an understanding of the levers in the Plan structure that create participant value. After an initial Committee has been established, Contractor will assist the Committee in a) Establishing processes to provide consistent and effective oversight of the Plan. b) Drafting an Investment Policy Statement for the Plan. The services listed above shall include "on site" personal attendance by Consultant at three, one -day meetings with City staff, Committee members, or both. In addition, Consultant will interact frequently with the City staff to obtain data, discuss results, and manage the project ®CCICIAL RECORD CITY,�CRETARY FT. WORTH TX Professional Services Agreement with The Retirement Store, Inc. _ � _ 0 � A 1 1 � 0 3 I N schedule and shall maintain appropriate documentation of all work performed, objectives described above are referred to in this Agreement as the "Services." All actions and 2. Schedule. The major steps involved in the Services and target completion deadlines shall be as follows: ACtIVItY Projected Date of Completion 1. Approve Proposal/issue contract 05/01/2009 2. Develop Oversight Committee Selection Criteria 05/15/2009 3. Seat Initial Oversight Committee 06/30/2009 • Elect officers • Establish rules/procedures • Complete Fiduciary Training 4. Develop Investment Policy Statement 07/15/2009 5. Conduct (2) Quarterly Reviews of 457 Plan' Within 45 days of quarter close (8/15/09 & 11/15/09) Timely performance of Services is conditioned on all actual quantitative and qualitative Plan information being provided by existing Third Party Administrators in a format prescribed by the Consultant. 3. Term. Services shall be provided by Consultant for a term beginning May 1, 2009 and ending Apri130, 2010, unless terminated earlier in accordance with Section 5 of this Agreement. 4. Compensation. a) Fee As full and complete compensation for all Services described above, Consultant shall be paid a flat fee of Ten Thousand Dollars ($10,000.00) plus travel reimbursement as detailed below. Any additional work requested by the City beyond the scope of the Services shall be available for a fee of One Hundred and Eighty -Five Dollars ($185.00) per hour for technical services plus travel reimbursement as detailed below. Consultant also agrees to provide additional on -site visits, beyond those included as part of the Services, for a fee of Fifteen Hundred Dollars ($1,500.00) per day, which amount shall include five to six hours of technical assistance, plus travel reimbursement as detailed below. Professional Services Agreement with The Retirement Store, Inc. Page 2 of 11 b) Travel Expenses In addition to any fee due under Subsection (4)(a), City shall reimburse Consultant for travel -related expenses (such as airfare, hotel, rental car, and personal car mileage) at Consultant's actual cost in an amount not to exceed Five Hundred Dollars ($500.00) per on -site visit. Personal car mileage will be billed at standard IRS business mileage rates in effect at the time of travel. City shall provide Consultant with a meal allowance of Twenty -Five Dollars ($25.00) per diem for on -site visits that require an overnight stay. c) Structure of Pam i. Consultant's fee will be divided into four equal payments corresponding to certain project milestones as follows: Completion of Fiduciary Training: $2,500 Completion of Investment Policy Statement $2,500 Completion of Plan Review (2nd Quarter 2009) $2,500 Completion of Plan Review (3rd Quarter 2009) $25500 ii. Following completion of each of the listed milestones, the Consultant shall provide the City with a signed fee invoice summarizing the portion of the Services that has been completed and requesting payment. If the City requires additional reasonable information, it shall request the same promptly after receiving the above information, and the Consultant shall provide such additional reasonable information to the extent the same is available. On full and final completion of the Services, Consultant shall submit a final fee invoice, and City shall pay any balance due within 30 days of receipt of such invoice. iii. Travel reimbursement shall be paid monthly. The Consultant will issue monthly invoices for all travel costs under this Agreement no later than the Professional Services Agreement with The Retirement Store, Inc. Page 3 of 11 15th day following the end of the month. payable within 30 days of receipt. Travel invoices are due and 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. vi. Notwithstanding anything to the contrary herein, the City shall not be liable to Consultant for payment of fees, expenses, and any other compensation hereunder in an aggregate amount greater than $25,000.00. 5. Termination. Either Party may terminate this Agreement at any time, with or without cause, by providing Consultant with 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 and travel expenses actually incurred as of the effective date of termination. 6. Independent 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 Professional Services Agreement with The Retirement Store, Inc. Page 4 of I I 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 respondeat 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. 7. Liability and Indemnification. CONSULTANT AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (I) CONSULTANT'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (II) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITYOR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONSULTANT AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITYAS FURTHER PROVIDED BY THE LAWS OF TEXAS. Consultant shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. This Section 6 shall survive the expiration or termination of this Agreement. 8. Insurance. During the term of this Agreement, Consultant shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specc coverage set forth in this Section as well as any and all other public risks related to Consultant's performance of its Professional Services Agreement with The Retirement Store, Inc. Page 5 of 11 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) $1,000,000 per occurrence or claim (2) $1,0005000 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. 9. Assignment. Consultant shall not assign or subcontract all or any part of its rights, privileges, or duties under this 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. Professional Services Agreement with The Retirement Store, Inc. Page 6 of 11 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. 10. 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. 11. 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. 12. 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 Professional Services Agreement with The Retirement Store, Inc. Page 7 of 11 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 all 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. This Section 11 shall survive the expiration or termination of this Agreement. 13. Fiscal Funding. 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. 14. Venue and Jurisdiction. 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. 15. Notices. Notices to be provided hereunder shall be sufficient if forwarded to 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. Professional Services Agreement with The Retirement Store, Inc. Page 8 of 11 Karen L. Montgomery, Assistant City Manager City of Fort Worth 1000 Throckmorton St. Fort Worth, Texas 76102 (817) 392-6183 Al DiCristofaro, President The Retirement Store, Inc. 10305 Yucca Dr. Austin, Texas 78759 (512) 291-2228 16. 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 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. 17. Disclosure of Conflicts and Confidential Information. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's 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. 18. Minority and Woman Business Enterprise 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 WWBE goal established for this Agreement and its commitment to meet that goal. Any Professional Services Agreement with The Retirement Store, Inc. Page 9 of 11 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. 19. 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. 20. 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. 21. Force Majeure. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 22. 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. 23. 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. 24. Entire Agreement. This written instrument (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. Professional Services Agreement with The Retirement Store, Inc. Page 10 of 11 EXECUTED in multiple originals on this, the day of , 2009. CITY OF FORT WORTH, TEXAS Karen L. Montgomery Assistant City Mana er Date Signed: (� % ATTEST: City Secretary APPROVED AS TO FORM AND LEGALITY. Denis C. McElroy 61 Assistant City Attorney No M&C Required Al DiCristofaro President Date Signed: Professional Services Agreement with The Retirement Store, Inc. STORE, INC. OFFICIAL RECORD CITY SECRETARY FT. WORTH, ory Page 11 of 11