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HomeMy WebLinkAboutContract 39577CITY SECRETARY 'ONTRACT NO R51:L PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made Cl" entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and DAS HR Consulting LLC ("Consultant"), a Texas limited liability company, acting by and through its duly authorized Managing Member. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services related to conducting an independent review and investigation of allegations of disparate treatment of certain City employees. 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. Unless terminated earlier in accordance with Section 4, this Agreement shall encompass services provided by Consultant for a six-month period, beginning December 7, 2009 ("Effective Date") and ending May 6, 2010. 3. COMPENSATION. As full and complete compensation for all of the services listed and described herein, City shall pay Consultant a fee of $95.00 per hour with a total amount not to exceed $3,800.00. Payment shall be made in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "B," which is incorporated for all purposes herein. The City shall not be liable for any additional fees or expenses of Consultant not specified by this Agreement unless the City first approves such amounts in writing. 4. TERMINATION. 4.1. Written Notice. The City or Consultant may terminate this Agreement with or without cause 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 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 the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the expiration of the Term, City shall pay Consultant only for services actually rendered as of the efte_ dive__date. of termirsatic and Consultant shall continue to provide the City with services re uested by the City and CITY SECRETARY FT. WORTH , TX in Professional Services Agreement with DAS HR Consulting, LLC Page 1 of 8 5. 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 services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict. Consultant, for itself, its officers, agents, servants, and employees, further 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. Consultant 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. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement and at no additional cost to the City, 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 work space 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 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 and at no cost,to the City, have access to and the right to examine 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. Consultant shall operate hereunder as an independent contractor as to all rights and privileges granted herein, and not as agent, representative, servant, or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive control of and 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. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is expressly understood and agreed that no officer, agent, servants, employee, subcontractor, or subconsultant of Consultant is in the paid service of City. 8. LIABILITY AND INDEMNIFICATION. CONSULTANT 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 Inc; EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE, OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS, OR Professional Services Agreement with DAS HR Consulting, LLC Page 2 of 8 EMPLOYEES. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY (INCLUDING DEATH) TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations, or rights under this Agreement without the prior written consent of the City. Any attempted assignment or subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. If the 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. INSURANCE. Consultant shall provide the City with certificates) 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) Worker's Compensation — if Consultant has employees Statutory limits Employer's liability $100,000.00 Each accident/occurrence $100,000,00 Disease - per each employee $500,000.00 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 $100,000.00 each accident/occurrence, $500,000.00 bodily injury disease policy limit and $1001000,00 per disease per employee (b) Errors &Omissions (Professional Liability): $1,000,000.00 Each Claim Limit $1,000,000.00 Aggregate Limit Professional Services Agreement with DAS HR Consulting, LLC Page 3 of 8 If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date to 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 services provides under the contractual agreement or for the warranty period, which ever is longer. An annual certificate of insurance submitted to the City shall evidence coverage. 10.2 Certificates. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. All applicable policies shall be endorsed to name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. The City reserves the right to make reasonable requests or revisions pertaining to the types and limits of that coverage. 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. Such terms shall be endorsed onto Consultant's insurance policies. 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. 11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS. Consultant covenants and agrees of behalf of itself, its officers, agents, servants, employees, and subcontractors to comply with all applicable federal, state, and local laws, ordinances, rules, and regulations. If the 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. 12. NON-DISCRIMINATION COVENANT. As part of the consideration herein, Consultant agrees, for itself, its officers, agents, servants, employees, personal representatives, assigns, subcontractors, and successors in interest, that in the performance of Consultant's duties and obligations hereunder, no individual or group of individuals shall be discriminated against in treatment or employment on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Consultant, its officers, agents, servants, employees, personal representatives, assigns, subcontractors, or successors in interest, Consultant 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: Professional Services Agreement with DAS HR Consulting, LLC Page 4 of 8 To The CITY: City of Fort Worth Attn: Rachel Buckley, HR Department 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile: (817) 392-8654 14. SOLICITATION OF EMPLOYEES. To CONSULTANT: DAS HR Consulting, LLC Attn: Di Ann Sanchez 5201 Birch Grove Lane Fort Worth, Texas 76137 Neither the City nor Consultant 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 contractor, 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. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. NO WAIVER. The failure of the City or Consultant 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 that party's right and ability to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW /VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of 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. If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, 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, or City government in accordance with applicable law; any arrests and restraints; civil disturbances; or explosions; or some other 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. Professional Services Agreement with DAS HR Consulting, LLC Page 5 of 8 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the rules of construction indicating that any ambiguities are to be resolved against the drafting party shall not apply or be employed in the interpretation of this Agreement or any of its exhibits, attachments, or schedules. 22. AMENDMENT. No amendment, extension, modification, or alteration of this Agreement shall be binding upon a party hereto unless such amendment, extension, modification, or alteration is set forth in writing, dated subsequent to the date hereof, and duly executed by an authorized representative of such party. 23. ENTIRETY OF AGREEMENT. This written instrument (together with any attachments, exhibits, schedules, and appendices) constitutes the entire understanding between the City and Consultant concerning the work and services to be performed hereunder. Any prior or contemporaneous, oral or written agreement that purports to vary from the terms of this Agreement is hereby declared null and void. 24. SIGNATURE AUTHORITY. The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective party, and that such binding authority has been granted by proper order, resolution, ordinance, or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering in to this Agreement. 1 WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this 1 day of 2009. CITY OF FORT WORTH, TEXAS DAS JHR CONSULTING, LLC Fernando Costa Assistant City Manager Date Signed: ZA91j? 09 ATTEST: w Marty Hend City Secretary APPROVED A TO FORM AND LEG/�LII� Derfi� C. McEl�y Assistant City ttorney No M&C Required Di Ann S�richez Mana�rfg Member Date Signed: WITNESS: CORPORATE SEAL: OFFICIAL RECORD CITY SECRETARY I T. WORTH, TX Professional Services Agreement with DAS HR Consulting, LLC Page 6 of 8 EXHIBIT A STATEMENT OF WORK • Conduct an administrative investigation involving allegations of follow City Procedures -conduct interviews with employees -review related written documentation -submit a written report with findings and/or recommendations disparate treatment and failure to Professional Services Agreement with DAS HR Consulting, LLC Page 7 of 8 PAYMENT SCHEDULE -hourly rate of $95.00 -total amount paid not to exceed $3800.00 -payment will be made within thirty days of the latter of (i) receipt of Consultant's written report and (ii) receipt of a written invoice summarizing the hours involved in rendering services under this Agreement Professional Services Agreement with DAS HR Consulting, LLC Page 8 of 8