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CONTRACT N®.4 0
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 Kevin Smith, its duly authorized representative,
individually referred to as a "party," collectively referred to as the "parties."
1. SCOPE OF SERVICES.
Consultant hereby agrees to provide the City with professional consulting services for the
purpose of completing the City's 2010 Comprehensive Annual Financial Report (CAFR). 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 expire upon completion of all work contemplated herein, but not
later than September 30, 2010.
3. COMPENSATION.
The maximum amount to be paid to Consultant for all services performed hereunder shall not
exceed $y23000.00 ("Contract Amount"), which shall include all expenses incurred by Consultant.
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.
4. TERMINATION.
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.
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2010 CAFR
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Ou-?3-10 A11�44 IN
OFFICIAL. RECORD
CITY SECRETARY
T. WORTH, TX
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.
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 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
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. It is
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2010 CAFR
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further understood that the City shall in no way be considered a Co -employer or a Joint employer of
Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither
Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be
entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and
all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants,
employees or subcontractors.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION.
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. NOTWITHSTANDING THE FOREGOING, 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.
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.
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
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2010 CAFR
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(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
$100,000 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
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.
(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.
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2010 CAFR
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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
Attn0 Kevin Smith
Partner
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.
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.
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City of Fort Worth Crowe Horvath, LLP
2010 CAFR
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110 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.
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
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City of Fort Worth_Crowe Horwath, LLP
2010 CAFR
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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.
No extension, mocation 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 any 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 a member of Crowe Horwath International, a Swiss association. 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.
[Signature page follows]
Professional Services Agreement
City of Fort Worth_Crowe Horwath, LLP
2010 CAFR
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IN VITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this �O41w�day of
, 2010.
CITY OF FORT WORTH: CROWE HORWATH LLP:
Karen L. Montgomery o
Assistant City Manager
Date: 'is�lxe5
ATT
By: �
arty Hendrix
City Secretary
APPROVED AS TO FORM AND LEGAL'
By:
Maleshia Farmer
Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: AdlAA i�Sc�,i lt�
tl
Date Approved:
Professional Services Agreement
City of Fort Worth_Crowe Horwath, LLP
2010 CAFR
Page 8 of 9
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Kevin Smith
Title: Partner
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EXHIBIT A
STATEMENT OF WORK
1.1 In preparation and providing assistance with the completion of the City's 2010
Comprehensive Annual Financial Report (CAFR), the Consultant will provide training on the creation and
preparation of fixed asset workbooks for the general government, internal service and proprietary funds
to include:
1.1.1 Roll Forward
1.1.2 Detail of beginning balance by category
1.1.3 Detail of Non-CIP additions
1.1.4 Detail of CIP additions
1.1.5 Detail of Transfers
1.1.6 Detail of Disposals/Retirement
1.1.7 Detail of ending Fixed Asset balance by category
1.1.8 Detail of ending CIP
1.1.9 CIP appropriations
1.1.10 Detail of adjustments, transfers, etc. matched to corresponding asset/project
1.2 Consultant will provide training on other capital asset maintenance and functions as listed:
1.2.1 Schedule of capitalized interest and supporting calculation
1.2.2 Detail of Repair and Maintenance expense
1.2.3 Schedules of capital leases showing beginning and ending balances and additions
and terminations during the year
1.2.4 Schedule of Operating Leases
1.2.5 Detail of Contributed Assets
1.2.6 GASB 42 procedure memo
1.2.7 Confirmations for year-end outstanding balances for all capital leases
1.2.8 Capital Outlay reconciliation
1.2.9 Reconciliation of Gain/Loss on Proceeds of Sale of assets balances for all capital
leases
1.2.10 Reconciliations of Gain/Loss on Proceeds of Sale Assets
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2010 CAFR
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