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HomeMy WebLinkAboutContract 39710 (2)CITY SECRETARY CONrgACT Np, PROFESSIONAL SERVICES AGREEMENT 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 Karen L. Montgomery, its duly authorized Assistant City Manager, and Crowe Horwath LLP ("Consultant"), an Indiana limited liability partnership and acting by and through James E. Stempak, its duly authorized Principal, individually referred to as a "party," collectively referred to as the "parties." CONTRACT DOCUMENTS: The contract documents shall include: 1. This Professional Services Agreement 2. Exhibit A — Scope of Work 3. Exhibit B — Payment Schedule 4. Exhibit C — Milestone Acceptance Form 5. Exhibit D — Network Access Agreement In the event of a conflict between the documents, the order of precedence shall be (i) this Professional Services Agreement, (ii) Exhibit A, Scope of Work, (iii) Exhibit B, Payment Schedule, (iv) Exhibit C, Milestone Acceptance form. Notwithstanding the foregoing, if the conflict is related to access to the City's network system, then Exhibit D shall control in all instances. All Exhibits listed above are attached hereto and incorporated herein for all purposes incident to this Agreement. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of Financial Management Policy Development and Documentation. 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. This service will be provided in accordance with the Standards for Consulting Services established by the American Institute of Certified Public Accountants. The extent and sufficiency of the services and procedures to be performed will be determined with the City and are the sole responsibility of the management of the City. 2. TERM. This Agreement shall commence upon the last date that both parties have executed this Agreement ("Effective Date"), and shall remain in effect until September 30, 2010, unless terminated earlier in accordance with the provisions of this Agreement. S. COMPENSATION. The City shall pay Consultant an amount not to exceed $590,083.00 ("Contract Amount") in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "B," which is incorporated for all purposes herein. Consultant 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 Consultant not specified by this Agreement unless the City first approves such expenses in writing. OFFICIAL RECORD CITY SECRETARY Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP FT. WORTH, T 2009 FMPS Development -- Page 1 of 21 5. TERMINATION. WWWWWWWWOM 4.1. Default. In the event of a default, the defaulting party must be given written notice specifying the event of default and a minimum of thirty (30) days to cure such default (the "cure period"). If the default is not cured within the cure period to the satisfaction of the non -defaulting party, then the non -defaulting party shall have the right to terminate the Agreement immediately upon written notice 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 completion of all services contemplated herein, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant 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. 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 services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. Consultant, for itself and its officers, agents 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, during the initial term, during any renewal terms, and until the expiration of three (3) years after final payment under this contract, have access to and the right to examine at reasonable times any invoices, workpapers, including but not limited to documents and information retained by Consultant to support processes, procedures, and conclusions reached by Consultant, timesheets and any relevant records of the Consultant involving transactions relating to this Contract at no additional cost to the City. 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, during the initial term, during any renewal terms, and until expiration of three (3) years after final payment of the subcontract, have access to and Professional Services Agreement City of Fort Worth Crowe Horwath, LLP 2009 FMPS Development Page 2 of 21 the right to examine at reasonable times any invoices, workpapers, including but not limited to documents and information retained by subcontractor to support processes, procedures, and conclusions reached by subcontractor, timesheets and any relevant records of the subcontractor involving transactions relating 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 Consultant shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant 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. Consultant acknowledges that the doctrine of respondent superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. 8. LIMITATION OF LIABILITY AND INDEMNIFICATION. EXCEPT FOR TANGIBLE PROPERTY DAMAGE CLAIMS OR PERSONAL INJURY CLAIMS, INCLUDING DEATH, CONSULTANT'S LIABILITY TO CITY HEREUNDER FOR DAMAGES, REGARDLESS OF THE LEGAL THEORY OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THREE (3) TIMES THE TOTAL CONTRACT AMOUNT. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO THE FULL EXTENT ALLOWED BY LAW. THIS LIMITATION OF LIABILITY SHALL ALSO APPLY AFTER TERMINATION OF THIS AGREEMENT. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL TANGIBLE PROPERTY DAMAGE AND/OR 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 CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR 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 EITHER TANGIBLE PROPERTY DAMAGE AND/OR 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 ACTS OR OMISSIONS 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. 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. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 3 of 21 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) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis Coverage shall be on any vehicle used by the Consultant, 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 $1003000 Each accident/occurrence $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) including Technology Liability $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Technology coverage may be provided through an endorsement to the Professional Liability policy, or a separate policy specific to Technology 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 Certificates. (a) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City Manager's Office prior to Consultant proceeding with any work pursuant to this Agreement. The Commercial General Liability and Auto Liability policies shall be endorsed to name the City as an Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 4 of 21 additional insured thereon, as its interests may appear. The term "Uny 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. (b) Consultant shall endeavor to provide a minimum of thirty (30) days notice of cancellation or reduction in limits of coverage 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. Notices shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS. Each party agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant'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 Consultant, its 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: To The CITY: City of Fort Worth Attn: Karen L. Montgomery Assistant City Manager 1000 Throckmorton Street Fort Worth, Texas 76102-6311 Facsimile: (817) 392-6134 14. SOLICITATION OF EMPLOYEES. To CONSULTANT: Crowe Horvath LLP Attn: James E. Stempak Principal 5215 North O'Connor Boulevard, Suite 200 Irving, Texas 75039 Facsimile: 800-599-9114 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. Professional Services Agreement City of Fort Worth_Crowe Horvath, LLP 2009 FMPS Development Page 5 of 21 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 the City's or Consultant's respective right 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. 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 (force majeure), 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. CHANGES IN LAWS, REGULATIONS OR RULES. Consultant may periodically communicate changes in laws, regulations, or rules to the City. However, the City has not engaged the Consultant to and Consultant does not undertake an obligation to advise the City of changes in laws, regulations, rules, industry or market conditions, the City's own business practices, or other circumstances, except to the extend required by professional standards. No advice Consultant may provide should be construed to be investment advice. 21. MEDIATION. If a dispute arises in whole or in part, out of or related to this engagement, or after the date of this agreement, between the City and the Consultant, and if the dispute cannot be settled through negotiation, the City and the Consultant agree first to try in good faith to settle the dispute by non -binding mediation administered by the American Arbitration Association under its mediation rules for professional accounting and related services disputes before resorting to litigation or other dispute -resolution procedure. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 6 of 21 22. NO PUNITIVE OR CONSEQUENTIAL DAMAGES. Any liability of either party to the other party shall not include any special, consequential, incidental, punitive, or exemplary damages or loss nor any lost profits, savings, or business opportunity. 23. 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. 24. 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. 25. AMENDMENTS /MODIFICATIONS /EXTENSIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto uMess such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 26. 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 Consultant, 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. 27. 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. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 28. AFFILIATES. Crowe Horwath LLP is an independent member of Crowe Horwath International, a Swiss Verein. Each member firm of Crowe Horwath International is a separate and independent legal entity. Crowe Horwath LLP and its affiliates are not responsible or liable for any acts or omissions of Crowe Horwath International or any other member of Crowe Horwath International and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Horwath International or any other member of Crowe Horwath International. Crowe Horwath International does not render any professional services and does not have an ownership or partnership interest in Crowe Horwath LLP. Crowe Horwath International and its other member firms are not responsible or liable for any acts or omissions of Crowe Horwath LLP and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Horwath LLP. Notwithstanding anything to the contrary in this section, in the event that Crowe Horwath LLP assigns or subcontracts any portion of this Agreement to a Crowe Horwath International affiliate, such assignment or subcontract shall be subject to the other terms of this Agreement. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 7 of 21 2US TIME LIMIT ON CLAIMS. In no event shall any action against the City or Consultant, arising from or relating to this engagement letter or the services provided by Consultant relating to this engagement, be brought after the earlier of 1) two (2) years after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose. [Signature page follows] Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 8 of 21 IN ITNESS WHEREOF, the parties hereto have executed this Agreement in multiples thi b -day of 49%� CITY OF FORT WORTH: Karen L. Montgomery (J Assistant City Manager Date: /A L //0 l_l By: Marty Hendrix' City Secretary APPROVED AS TO FORM AND LEGALITY: B: Maleshia Farmer Assistant City Attorney CONTRACT AUTHORIZATION: Date Approved: 1 LJ Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 9 of 21 CROWE HORWATH LLP: James E. Stempak Principal Date: \ \ \ ; o \ ATTEST: By: Name: Title: OFFICIAL RECORD CITY SECRETARY WORTH, TX FT. EXHIBIT A SCOPE OF WORK For FINANCIAL POLICY DEVELOPMENT AND DOCUMENTATION 1.0 OVERVIEW OF BUSINESS OBJECTIVES AND GOALS 1.1 The Consultant will develop a comprehensive set of financial management policies. Consultant shall perform a comprehensive review of the current (as -is) condition of City of Fort Worth Administrative Regulations and Financial Policy Statements, and brief Financial Management Services (FMS) Management on findings and recommendations for improvement in both format and content. 1.2 The Consultant shall be responsible for providing adequate staff to conduct the comprehensive assessment described above, revise existing Policy Statements and/or document new Financial Management Policies, and provide training to City fiscal staff regarding the new and revised Policy content. 1.3 The Consultant shall also conduct a second comprehensive assessment to determine the alignment of existing Departmental Operating Procedures with new and revised Financial Policy Statements. This second assessment will include all City Departments including Financial Management Services. Responsibility for correcting Departmental Operating Procedures will remain with City of Fort Worth employees. 1.4 Consultant will perform the work in two phases. Phase I will address material weaknesses and significant deficiencies as identified in the Management Letter for fiscal year 2007, as prepared by the City's independent auditors. Phase II will cover all other policies not addressed in Phase I. 1.5 The Consultant will construct Policy Statements which reflect best governmental fiscal and accounting practices regarding internal controls. In addition, the Consultant will construct Policy Statements that will facilitate a future ERP implementation and integrate seamlessly with the top ten (market share) ERP Applications. 1.6 Organizational Recommendations. Pursuant to the stated goals herein; the Consultant will be expected to provide expert guidance and recommendations for improvement regarding the current decentralized fiscal management organization model. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 10 of 21 2.0 REQUIRED SERVICES 2.1 The Consultant shall report to the Director of Financial Management Services (FMS) and shall provide independent, objective and expert guidance, recommendations, oversight and assistance regarding all aspects of the City's financial op lice development and documentation including: 2.1.1 Phase 1 2.1.1.1 Task 1 -Consultant shall develop City of Fort Worth enterprise financial policies which address and resolve external audit comments documented in the FY2007 and FY2008 Management Letter regarding material weaknesses and significant deficiencies. 2.1.1.2 Task 2 -Consultant shall develop and conduct City-wide training sessions for departmental fiscal staffs on new and/or revised Policy Statements generated as a result of the effort described in Phase 1, Task 1, above. 2.1.1.3 Task 3 -Consultant shall conduct an assessment of City-wide departmental fiscal management procedures for alignment and compliance with all new and/or revised policy statements generated as a result of actions defined in Phase 1 and present findings to the Director of Financial Management Services. 2.1.2 Phase 2 2.1.2.1 Task 1 -Consultant shall conduct an assessment of all remaining City financial policies, not addressed by the actions defined in Phase 1, for adequacy of content, internal controls and topical coverage. Task 2 -Consultant shall develop City enterprise financial policies which address and resolve deficiencies documented as a result of the effort described in Phase 2, Task 1. 2.1.2.3 Task 3 - Consultant shall conduct City-wide training for departmental fiscal staffs on new and/or revised Policy Statements generated as a result of Phase 2, Task 2, above. 2.1.2.4 Task 4 -Consultant shall conduct an assessment of City-wide departmental fiscal management procedures for alignment and compliance with all new and/or revised policy statements generated as a result of actions defined in Phase 2 and present findings to the Director of Financial Management Services. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 11 of 21 3.0 DELIVERABLES AND MILESTONES 3.1 Project Charter 3.2 Written assessment of current state of City's financial policies and recommendations 3.3 Draft policies addressing material weaknesses and significant deficiencies from fiscal years 2007 and 2008 financial audits. 3.4 Final policies addressing material weaknesses and significant deficiencies from fiscal years 2007 and 2008 financial audits. 3.5 Training plan and materials for City-wide implementation of newly developed and revised policies. 3.6 Delivery of training identified in 3.5 above. 3.7 Assessment of City-wide procedures against new and revised policies. 3.8 Written assessment of all remaining City financial policies, not addressed by the actions defined in Phase 1, for adequacy of content, internal controls and topical coverage. 3.9 Draft policies addressing deficiencies documented as a result of the effort described in Phase 2, Task 1. 3.10 Final policies addressing deficiencies documented as a result of the effort described in Phase 2, Task 1. all Training plan and materials for City-wide implementation of newly developed and revised policies. 3.12 Delivery of training identified in 3.11 above. 3.12 Assessment of City-wide procedures against new and revised polices identified All deliverables and milestones shall be accepted in a writing signed by the City and evidenced by information provided in the form of attached Exhibit C. 4.0 ASSUMPTIONS 4.1 All products, deliverables and documentation generated as a result of the efforts described herein are the exclusive property of the City of Fort Worth. 4.2 Consultant will track issues, action items and parking lot items. 4.3 When needed, on site office space will be provided as follows: 4.3.1 A cubicle/office with Internet access; 4.3.2 Access to a copier; 4.3.3 Meeting rooms when available; 4.3.4 Server access for storing project documentation; and 4.3.5 Projector for facilitated meetings. 4.4 Multiple copies of reports will be prepared at the City's expense. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 12 of 21 4.5 Specified City staff will be reasonably available for interviews and to participate on the project as agreed upon and appropriate. 4.6 Office and meeting room space will be reasonably available on -site for project - related meetings and other project -related purposes. 4.7 The City will accept or reject all deliverables within ten (10) business days. Business days are considered to be the normal City hours of operation: Monday Friday; 8 a.m. - 5 p.m., excluding City holidays. If a deliverable is rejected, the City will provide a written description of the defects of the deliverable(s). Consultant will correct and resubmit deliverables in five business days. 4.8 Minimal administrative support will be required, but in those instances when it is required, it will be provided by the City. 4.9 The Consultant's work will be conducted on site, travel time and costs are included in agreed upon pricing. 5.0 CRITICAL SUCCESS FACTORS 5.1 Effective sponsorship and oversight is critical to the success of the project. The consultant will work with the FMS Management Team to establish an overall Project Charter that will govern all aspects of the project. All planning assumptions must support the larger strategic business direction of the City. It is essential that the Consultant confirm the City's business priorities by reviewing existing business plans, interviewing key senior staff and coming to consensus with the Project Team over the project Is assumptions. 5.2 Provide project plan documents including the detailed project plan, communication plan, potential risks, escalation procedures and resource requirements. The detailed project plan will list tasks, schedules, durations, estimated hours, key milestones, and related dependencies. 5.3 Monitoring and evaluation of performance will be accomplished through the tracking of milestones and targets, and compensation will be tied to performance. 5.4 Communicate progress and findings to the project team via email, minutes and briefings on a weekly basis throughout the duration of the project. Assist with the preparation of briefing materials and presentation of such to the City Manager staff, Audit and Finance Committee, City Council and Employee Meetings as requested. 6.0 OUT OF SCOPE 6.1 Implementation of any technology solutions is considered out of scope. The Consultant will be providing policy focused editorial guidance, recommendations for improvements, quality assurance, training and oversight with respect to the implementation of policy statements. 6.2 Development and documentation of departmental procedures and/or desk top work instructions will remain the responsibility of City of Fort Worth staff. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 13 of 21 7.0 PAYMENT STRUCTURE Payments shall be made in accordance with Exhibit B, attached hereto. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 14 of 21 Il'k117fii=3 PAYMENT SCHEDULE Payments shall be made by the City on a net 30 days basis following receipt of a valid invoice from the Consultant according to the following schedule. Payment items noted with an asterisk (*) will be invoiced to the City on a monthly basis until the deliverable is completed. Invoices shall be computer -generated or typewritten and shall include the City's contract number, the release purchase order number, the deliverable item provided, proof of acceptance of the deliverable by the City in the form of Exhibit "C" attached hereto and the proper dollar amount for that item. 1. City acceptance of Deliverable: Project Plan with Engagement Timeline - $23,000 2. City acceptance of Deliverables: Task 1 — Update or creation of the city-wide financial policies for the processes outlined in the proposal - $189,000, divided as follows: a. Material Weakness related processes - $40,000 b. Significant Deficiency related processes - $46,000 c. Other processes - $103,000* 3. City acceptance of Deliverables: Task 2 —Creation of training curriculum and schedules and completion of training sessions - $80,000* 4. City acceptance of Deliverables: Task 3 —Assessment of city-wide policy compliance across departments and completion of gap analysis - $298,000, divided as follows: a. Material Weakness related processes - $76,000 b. Significant Deficiency related processes - $46,000 c. Other processes - $176,000* 5. Additional Services a. In the event additional services are required, the parties shall execute a written amendment to this Agreement specifically setting forth the additional services and the resulting change in compensation, if any, to be received for the services. b. The Consultant will be entitled to bill the City for the additional services at a professional hourly rate of $160.00 per hour. The City and Consultant will arrive at a mutually agreed upon rate prior to the commencement of such additional services.* Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 15 of 21 EXHIBIT C Acceptance Form Services Delivered: Milestone /Deliverable Ref. #: Milestone /Deliverable Name: Unit Testing Completion Date: Milestone /Deliverable Target Completion Date: Milestone /Deliverable Actual Completion Date: Approval Date: Comments (if needed): Approved by Contractor: Signature: Printed Name: Title: Date: For Director Use Only Contracted Payment Amount: Adjustments, including penalties: Approved Payment Amount: Professional Services Agreement City of Fort Worth_G•owe Horwath, LLP 2009 FMPS Development Page 16 of 21 Approved by Director: Signature: Printed Name: Title: Date: EXHIBIT D NETWORK ACCESS AGREEMENT This NETWORK ACCESS AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation with its principal location at 1000 Throckmorton Street, Fort Worth, Texas 76102, organized under the laws of the State of Texas and situated in portions of Tarrant, Denton and Wise Counties, Texas, and CROWE HORWATH LLP, ("Consultant"). 1. The Network. The City owns and operates a computing environment and network (collectively the "Network"). Contractor wishes to access the City's network in order to perform activities defined in the Professional Services Agreement for Financial Management Policy Development and Documentation. In order to provide the necessary support, Contractor needs access to the City's Internet. 2. Grant of Limited Access. Consultant is hereby granted a limited right of access to the City's Network for the sole purpose of providing services related to Financial Management Policy Development Documentation activities as described in the Professional Services Agreement. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials. The City will provide Consultant with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a services agreement, then this Agreement will expire at the completion of the contracted services, or upon termination of the services agreement, whichever occurs first. 4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed annually if the following conditions are met: 4.1 Contracted services have not been completed. 4.2 Contracted services have not been terminated. 4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the Consultant has provided the City with a current list of its officers, agents, servants, employees or representatives requiring Network credentials. Notwithstanding the scheduled contract expiration or the status of completion of services, Consultant shall provide the City with a current list of officers, agents, servants, employees or representatives that require Network credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 17 of 21 5. Network Restrictions. Consultant officers, agents, servants, employees or representatives may not share the City -assigned user IDs and passwords. Consultant acknowledges, agrees and hereby gives its authorization to the City to monitor Consultant's use of the City's Network in order to ensure Consultant's compliance with this Agreement. A breach by Consultant, its officers, agents, servants, employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Consultant pursuant to this Agreement shall be grounds for the City immediately to deny Consultant access to the Network and Consultant's Data, terminate the Agreement, and pursue any other remedies that the City may have under this Agreement or at law or in equity. 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon termination of this Agreement, Consultant agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Consultant, its officers, agents, servants, employees and/or representatives to access the City's Network. 7. Information Security. Consultant agrees to make every reasonable effort in accordance with accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Consultant agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to, theft of Consultant - owned equipment that contains City -provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City -provided Network credentials, and unauthorized use or sharing of Network credentials. 8. LIABILITY AND INDEMNIFICATION. EXCEPT FOR TANGIBLE PROPERTY DAMAGE CLAIMS OR PERSONAL INJURY CLAIMS, INCLUDING DEATH, CONSULTANT'S LIABILITY TO CITY HEREUNDER FOR DAMAGES, REGARDLESS OF THE LEGAL THEORY OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THREE (3) TIMES THE TOTAL CONTRACT AMOUNT. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO THE FULL EXTENT ALLOWED BY LAW. THIS LIMITATION OF LIABILITY SHALL ALSO APPLY AFTER TERMINATION OF THIS AGREEMENT. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL TANGIBLE PROPERTY DAMAGE AND/OR 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 CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR 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 EITHER TANGIBLE PROPERTY DAMAGE AND/OR 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 ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 18 of 21 SUBJECT TO THE LIMITATION ABOVE, CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY ON ACCOUNT OF ANY BREACH OF THIS ACCESS AGREEMENT BY CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, SHALL NOT BE LIABLE FOR ANY DAMAGES THAT CONSULTANT MAY INCUR AS A RESULT OF THE CITY'S RESTRICTIONS TO OR DENIAL OF ACCESS TO CONSULTANT'S DATA ON ACCOUNT OF ANY BREACH OF THIS ACCESS AGREEMENT BY CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, OR FOR ANY REASONABLE SECURITY MEASURES TAKEN BY THE CITY. 9. Confidential Information. Consultant, for itself and its officers, agents, employees, and representatives, 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 further agrees that it 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. 10. Right to Audit. Consultant agrees that the City shall, during the initial term, during any renewal terms, and until the expiration of three (3) years after final payment under this contract, have access to and the right to examine at reasonable times any invoices, workpapers, including but not limited to documents and information retained by Consultant to support processes, procedures, and conclusions reached by Consultant, timesheets and any relevant records of the Consultant involving transactions relating to this Contract at no additional cost to the City. 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 subConsultant agreements hereunder a provision to the effect that the subConsultant agrees that the City shall, during the initial term, during any renewal terms, and until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any invoices, workpapers, including but not limited to documents and information retained by subConsultant to support processes, procedures, and conclusions reached by subConsultant, timesheets and any relevant records of the subConsultant involving transactions relating to the subcontract, and further that City shall have access during normal working hours to all subConsultant 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 subConsultant reasonable notice of intended audits. 11. Agreement Cumulative. This Agreement is cumulative of and in addition to any written contracts, agreements, understandings or acknowledgments with the City signed by Consultant. This Agreement and any other documents incorporated herein by reference constitute the entire understanding and Agreement between the City and Consultant as to the matters contained herein regarding Consultant's access to and use of the City's Network. 12. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented, or amended in any manner except by written instrument signed by an authorized representative of both the City and Consultant. Professional Services Agreement City of Fort Worth Crowe Horwath, LLP 2009 FMPS Development Page 19 of 21 13. Assignment. Consultant may not assign or in any way transfer any of its interest in this Agreement. Any attempted assignment or transfer of all or any part hereof shall be null and void. 14. 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. 15. Force Maieure. Each party shall exercise its best efforts to meet its 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 (force majeure), 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. 16. Governing 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 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, 17. Time Limit On Claims. In no event shall any action against the City or Consultant, arising from or relating to this engagement letter or the services provided by Consultant relating to this engagement, be brought after the earlier of 1) two (2) years after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose. 18. Signature Authority. The signature below of an authorized representative acknowledges that the Consultant has read this Agreement and agrees to be bound by terms and conditions set forth herein. ACCEPTED AND AGREED: CITY OF FORT WORTH: By: Karen L. Montgomery (� 0 Assistant Cit Man ger Date: h,, ?= Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 20 of 21 CROWE HORWATH LLP: James E. Stempak Principal Date: \ \ a.o 1 0 ATTEST: By: Marty Hendrix City Secretary APPROVED AS,TO FORM AND Li�a�fd, By: fk C �' �a4t4, Assistant City Attorney M & C: none required Professional Services Agreement City of Fort Worth_Crowe Horwath, LLP 2009 FMPS Development Page 21 of 21 ATTEST: COUNCIL ACTION: Approved; on 12115/2009 GENERAL INFORMATION: DATE: Tuesday, December 15, 2009 LOG NAME: 13PCROWE 2009 FIN POLICY or REFERENCE NO.: C-23997 SUB]ECT: Authorize a Contract for Professional Consulting Services with Crowe Horwath, LLP, for Development of Finance Directives and Related Services for the Financial Management Services Department for a Cost Not to Exceed $590,083.00 RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a Professional Services Contract with Crowe Horwath, LLP, for consulting services for development of Finance Directives and related services for the Financial Management Services Department at a cost not to exceed $590,083.00. DISCUSSION: This Contract will provide professional consulting services to the Financial Management Services Department (FMS) to develop a set detailed Citywide policies ("Finance Directives") that will be maintained on FMS' Intranet site for operational and reference purposes. These policies are not to be confused with the Financial Management Policy Statements, which are the framework from which the Finance Directives are to be formulated. The objective of this contract is to assist FMS staff to identify and develop the above -mentioned Finance Directives, train fiscal personnel and assess departmental procedures' alignment with new or revised policies. The City desires to have the work performed in a prioritized sequence. The first priority will address material weaknesses identified in the Management Letters for Fiscal Years 2007 and 2008. The second priority will address significant deficiencies, while the third priority will address all other fiscal directives not included above. In June 2009, the City issued a Request for Proposal (RFP) for the development of detailed financial policies ("Finance Directives"), which will reflect best governmental fiscal and accounting practices regarding internal controls. The timeline for completion of this effort has been extended due to a more involved assessment of the responding proposals. The City conducted several interviews with top respondents and provided additional opportunity for informational exchange and clarification of the work scope. This effort was done in conjunction with the annual budget process, debt issuances, and other work priorities. An evaluation panel made up of representatives from the Audit and Finance Advisory Committee, the City Manager's Office, the Financial Management Services Department, the City's financial advisor and the Minority Women Business Enterprise (M/WBE) Office, evaluated proposals submitted in response to the RFP. Proposal evaluation factors included background and relevant experience of the firms, personnel qualifications, references, contract costs and M/WBE participation. Crowe Horwath, LLP, was determined to be the best evaluated firm for the contract. Crowe Horwath, LLP, performed professional services for the City in accordance with the terms of the contract executed for completion of the 2007 and 2008 Comprehensive Annual Financial Reports. Since the resulting Finance Directives from this effort will serve as foundational documentation for automated practices in the new ERP financial system, funding for this contract is included as part of the ERP Phase II (financials) implementation project budget. M/WBE - Crowe Horwath, LLP, is in compliance with the City's M/WBE Ordinance by committing to 15 percent M/WBE participation on this project. The City's M/WBE goal on this project is 15 percent. FISCAL INFORMATION / CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current capital budget, as appropriated, of the Specially Funded Capital Projects Fund. FUND CENTERS: TO Fund/Account/Centers Submitted for Citv Mana4er's Office bv: Ori4inating Department Head: Additional Information Contact: FROM Fund/Account/Centers C291 539120 131030136120 $590rO83.00 Karen Montgomery (6222) Lena Ellis (8517) Jack Dale (8357) Walter Peoples (6217) ATTACHMENTS 1. Accounting Info.pdf (CFW Internal) 2. RFF 09-0089 Contract ComDll.iance Memorandu.pdf (CFW Internal)