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HomeMy WebLinkAboutContract 44140 (2)CITYSECRETARY&/cJ,L, coNTRACflJO. AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into by and between THE CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and THE RETIREMENT STORE, INC. ("Consultant"), a Texas corporation acting by and through its duly authorized President. RECITALS WHEREAS, in accordance with Section 457 of the Internal Revenue Code, the City has established a deferred compensation plan for its employees (the "457 Plan" or "Plan"); and WHEREAS, since 2006, Consultant has provided the City with advisory services in connection with administration of the Plan; and WHEREAS, in 2011, the City established an advisory committee to direct and supervise the activities of the Plan's third -party administrators (the "Committee"); and WHEREAS, two outside contractors, Nationwide Retirement Solutions and ICMA-RC, currently provide third -party administration services for the Plan; and WHEREAS, the Committee has recommended that the City re-examine and re-evaluate Plan administration alternatives and that it conduct a new request for proposals (RFP) for Plan administration to facilitate this process; and WHEREAS, the City wishes to engage Consultant to continue providing on -going advisory services and to provide assistance with the crafting of the RFP and evaluation of responses. Agreement for Professional Services — The Retirement Store, Inc. 02-01-1 3 P01 .53 IN OFFICIAL RECORD C'TY SECRETARY IF1G WORTh, TX Page 1 of 14 NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: AGREEMENT 1. Services. a) Consultant will, in good faith and with due diligence, provide advisory services associated with the 457 Plan RFP (the `RFP Project") and with the on -going administration of the Plan ( `Advisory Consulting"). (i) RFP Project With respect to the RFP Project, Consultant shall assist in the development of an RFP for administration of the City's 457 Plan, evaluation of RFP responses, and development and preparation of a final recommendation to the Fort Worth City Council In particular Consultant will (i) provide technical support in development of the RFP documents; (ii) develop responses to questions from potential bidders; (iii) analyze and score all RFP responses and provide a detailed report of evaluation criteria, scoring, and ranking to the City; and (iv) provide assistance and expertise to the City in developing a final recommendation. Completion of the RFP Project shall include four (4) days of on -site personal attendance and assistance by Consultant at no additional cost or expense. (ii) In -Person Advisory Consulting In addition to the RFP Project, Consultant shall provide general consulting services related to the Plan by in -person attendance at City or Committee meetings or functions on an as -needed, as -requested basis. (iii) Remote Advisory Consulting Agreement for Professional Services — The Retirement Store, Inc. Page 2 of 14 In addition to the RFP Project, Consultant shall provide general consulting services related to the Plan via e-mail, telephone, or other remote communication on an as -needed, as -requested basis. The RFP Project, In -Person Advisory Consulting, and Remote Advisory Consulting are referred to collectively as the "Services." Consultant shall perform the Services in accordance with standards in the industry for the same or similar services In addition Consultant shall perform the Services in accordance with all applicable federal, state, and local laws, rules, and regulations. 2. Term. Services shall be provided by Consultant for a term beginning May 1, 2012, and ending December 31, 2013, unless ten ninated earlier in accordance with Section 4 of this Agreement. 3. Compensation. a) Fee (i) As full and complete compensation for the RFP Project, Consultant shall be paid a flat fee of Twenty -Four Thousand and Five Hundred Dollars ($24,500.00) plus travel reimbursement as detailed below. (ii) For any In -Person Advisory Consulting work outside the RFP Project, Consultant shall be paid a fee of One Thousand Two Hundred and Fifty Dollars ($1,250.00) per day plus travel reimbursement as detailed below (iii) For any Remote Advisory Consulting work outside the RFP Project, Consultant shall be paid a fee of One Hundred and Eighty -Five Dollars ($185.00) per hour. b) Travel Reimbursement Agi eement for Professional Services — The Retirement Store, Inc. Page 3 of 14 For the RFP Project and In -Person Advisory Consulting work, the City shall reimburse Consultant for travel -related expenses (such as airfare hotel, rental car, and personal car mileage) for such on -site attendance at Consultant s actual cost in an amount not to exceed Five Hundred Dollars ($500.00) per on -site visit Personal car mileage will be billed at standard IRS business mileage rates in effect at the time of travel In addition, City shall provide Consultant with a meal allowance of Twenty -Five Dollars ($25.00) per diem for on -site visits that require an overnight stay. c) Structure of Payments i. The fee for the RFP Project will be divided into three payments corresponding to certain project milestones as follows: Issuance of RFP $8,000.00 Submission of Report of Proposal Scoring $8,500.00 Completion of Contract Recommendation $8,000.00 The fee for In -Person Advisory Consulting and Remote Advisory Consulting will be paid monthly in arrears. Travel Reimbursement will be paid monthly in arrears. ii. For the RFP Project, following completion of each of the listed milestones, the Consultant shall provide the City with a signed fee invoice summarizing the portion of the RFP Project that has been completed and requesting payment. For In -Person Advisory Consulting and Remote Advisory Consulting work, the Consultant will issue monthly invoices for all work performed during the previous month along with signed time sheets documenting the dates and time work was performed and indicating the nature of the Services provided. Agreement for Professional Services — The Retirement Store, Inc Page 4 of 14 For Travel Reimbursement, the Consultant will submit monthly reimbursement request invoices indicating the travel expenses incurred in connection with the provision of Services during the previous month along with receipts documenting each travel -related expense for which reimbursement is being sought No receipts shall be required for payment of the meal allowance associated with on -site visits that require an overnight stay. iii. All required invoices shall be submitted to Rebecca Galaviz, 1000 Throckmorton, Fort Worth, Texas 76102. If the City requires additional reasonable information in connection with any invoice, it shall request the same promptly after receiving the above information, and the Consultant shall provide such additional reasonable information to the extent the same is available. iv. On full and final completion of the Services, Consultant shall submit a final invoice, and City shall pay any balance due within 30 days of receipt of such invoice. In the event of a disputed or contested billing or reimbursement invoice, only the portion being contested will be withheld from payment and the undisputed portion will be paid. City will exercise reasonableness in contesting any bill, reimbursement invoice or portion thereof. No interest will accrue on any contested amount until the contest has been mutually resolved. vi. For contested billings and reimbursement requests the City shall make payment in full to Consultant within 60 days of the date the contested matter is resolved. If City fails to make such payment, Consultant may, after giving 7 days' written notice to City, suspend services under this Agreement for Professional Services — The Retirement Store, Inc Page 5 of 14 Agreement until paid in full, including interest calculated from the date the billing contest was resolved. In the event of suspension of services, Consultant shall have no liability to City for delays or damages caused to City because of such suspension of services. vii Under no circumstances shall the City's cumulative monetary obligation to the Consultant for all Fees and Travel Reimbursement under this Agreement exceed Thirty -Five Thousand Dollars ($35,000.00). 4. Termination. Either Party may terminate this Agreement at any time, with or without cause, by providmg the other Party with thirty (30) days' written notice of termination In the event this Agreement is terminated prior to expiration of the Tenn, City shall pay Consultant only for Services actually rendered and travel expenses actually incurred as of the effective date of termination. In the event this Agreement is terminated prior to expiration of the Tenn, 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. Independent Contractor. Consultant shall operate hereunder as an independent contractor and not as an officer, agent, servant, or employee of City. Consultant shall have exclusive control of and the exclusive right to control the details of the Services performed hereunder and all persons performing same and shall be solely responsible for the acts and omissions of its officers agents, servants employees, and subcontractors. The doctrine of respondeat superior shall not apply as between the City and Consultant, its officers, agents, servants, employees, or subcontractors. Nothing herein shall be construed as creating a partnership or joint enterprise between City and Consultant. It is expressly understood and agreed that no officer, agent, servants, employee, or subcontractor of Consultant is in the paid service of City. 6. Liability and Indemnification. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND Agreement for Professional Services — The Retirement Store, Inc Page 6 of 14 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 AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (1) CONSULTANT'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (11) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY LLABILITYRESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONSULTANT AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS. Consultant shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. This section shall survive the expiration or termination of this Agreement 7. Confidential and Proprietary Information. The City acknowledges that Consultant may use products, materials, or methodologies proprietary to Consultant. The City agrees that Consultant's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products, materials or methodologies unless the Parties have executed a separate written agreement with respect thereto. Consultant, for itself and its officers, agents, servants, employees, and subcontractors, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such infoiniation to any third party without the prior written approval of the City. Agreement for Professional Services — The Retirement Store, Inc. Page 7 of 14 Notwithstanding the foregoing, Consultant understands and agrees that the City is a public entity under the laws of the State of Texas, and as such, is subject to various public information laws and regulations, including, but not limited to, the Texas Public Information Act, Chapter 552 of the Texas Government Code (the "Act '). Consultant acknowledges that, under the Act, the following information is subject to disclosure: 1) all documents and data held by the City, including information obtained from the Consultant, and 2) information held by the Consultant for or on behalf of City that relates to the transaction of City's business and to which City has a nght of access If the City receives a request for any documents that may reveal any of Consultant's proprietary information under the Act, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Consultant prior to disclosure of such documents The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as "Proprietary / Confidential Information" or if disclosure is required by the Act or any other applicable law or court order In the event there is a request for such information, it will be the responsibility of Consultant to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction 8. Insurance. During the tern of this Agreement, Consultant shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth in this Section as well as any and all other public risks related to Consultant's performance of its obligations under this Agreement. Consultant shall specifically obtain the following types of insurance at the following limits: • Errors & Omissions (Professional Liability): If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement The certificate of insurance shall state that the coverage is claims -made and include the retroactive date. The insurance shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of Agreement for Professional Services — The Retirement Store, Inc. Page 8 of 14 insurance submitted to the City shall evidence coverage. Coverage shall be in the following amounts: (1) $1,000,000.00 per occurrence or claim (2) $1,000,000.00 aggregate Consultant shall promptly provide the City with certificates of insurance that verify Consultant's compliance with the insurance requirements of this Agreement. The City's Risk Manager shall have the right to review and evaluate Consultant's insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. Consultant shall comply with such requests or revisions as a condition precedent to the effectiveness of this Agreement. 9. Assignment. Consultant shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment of subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. If City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. Comnliance with Law. Consultant, its officers, agents, servants, employees, and subcontractors shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Consultant any such violation on the part of Consultant or any of its officers, agents servants, employees, or subcontractors, then Consultant shall immediately desist from and correct such violation. Agreement for Professional Services — The Retirement Store, Inc. Page 9 of 14 11. Non -Discrimination. In the execution, performance, or attempted performance of this Agreement, Consultant will not discriminate against any person or persons because of disability, age, familial status sex, race, religion, color, national origin, or sexual orientation, nor will Consultant penult its officers, agents, servants, employees, or subcontractors to engage in such discrimination This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and Consultant hereby covenants and agrees that Consultant, its officers, agents, employees, and subcontractors have fully complied with all provisions of same and that no employee or employee -applicant has been discriminated against by either Consultant, its officers, agents, employees, or subcontractors. 12. RiEht to Audit. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all of its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor involving transactions to the subcontract, and further that City shall have access during noiinal working hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section City shall give subcontractor reasonable advance notice of intended audits. Agreement for Professional Services — The Retirement Store, Inc Page 10 of 14 This section shall survive the expiration or termination of this Agreement. 13. Fiscal Funding In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 14. Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution, perfounance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. 15. Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand -delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other Party shown below: Susan Alanis, Assistant City Manager Al DiCristofaro City of Fort Worth The Retirement Store, Inc 1000 Throckmorton St 10305 Yucca Dr. Fort Worth, Texas 76102 Austin, Texas 78759 (817) 392-6183 (512) 291-2228 16. Solicitation of Employees. 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. 17. Non -Waiver. The failure of either Party to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's or Consultant's right to assert or rely on any such term or right on any future occasion. Agreement for Professional Services — The Retirement Store, Inc. Page 11 of 14 18. Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure m writing of any existing or potential conflicts of interest related to Consultant's provision of the Services In the event that any conflicts of interest arise after the execution of this Agreement, Consultant hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict 19. Minority and Woman Business Enterprise Participation In accordance with City Code, the City has goals for business diversity in City contracts. Consultant acknowledges the goal established for this Agreement and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Consultant may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. 20. Governmental Powers. Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 21. Severabilitv 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. 22. Force Maieure. 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; insulTections; 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 of emergency by the federal, state, county, or City government in accordance with applicable lawn issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security, any arrests and restraints* civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (each a "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. Agreement for Professional Services — The Retirement Store, Inc Page 12 of 14 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. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. 26. Counterparts: Facsimile Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument, and all of which shall constitute a single Agreement The signature of a Party to any counterpart shall be sufficient to legally bind such Party. City may remove the signature pages from one or more counterparts and attach them to any other counterpart for the purpose of having a single document containing the signatures of all Parties. Consultant may effect the execution and delivery of this Agreement by signing the same and sending a copy thereof to City or its attorney by electronic mail (e-mail) or facsimile transmission. Such e-mail or facsimile document including the signatures thereon, shall be treated in all respects as an original instrument bearing an original signature. If Consultant sends an executed copy by e-mail or facsimile transmission in the foregoing manner, Consultant shall also send the original thereof to City within five (5) days thereafter, but failure to do so shall not invalidate or otherwise affect the legality or enforceability of the e-mail or facsimile document 27. 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 Agreement for Professional Services — The Retirement Store, Inc. Page 13 of 14 authorization of the entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement. 28. Entire Agreement. This written instrument (together with any attachments, exhibits, and appendices) constitutes the entire understanding between the Parties concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. EXECUTED in multiple originals on this, the A' dayof p g CITY OF FORT WORTH, TEXAS Susan-Alanis Assistant City Ma ager Date Signed: 1 �� � � I ATTEST: ary Kayser City Secreta naetzv l ` rr"to aro President Date Signed: q F04 n�WITNESS:,4aa�00000r � .d�o oo -t 04* al 0 41)0 0 id 40 00 0,4 APPROVED AS TO FORM O0000o0 .d A AND LEGALIT�: 411/10iitat.sr� Denis MJ'lcElroy Assistant City Atto No M&C Required Agreement for Professional Services — The Retirement Store, Inc. 1 , 2013. NT STORE, INC. zorS OFFICIAL RECORD CITY SECRETARY PE WoRrH, TX Page 14 of 14