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HomeMy WebLinkAboutContract 44129 (2)2012 ANNUAL RACIAL PROFILING REPORT PROFESSIONAL SERVICES AGRFEMENT Cli Q)ECIRMAk COMPAG 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 Charles Daniels, its duly authorized Assistant City Manager, and Del Carmen Consulting, LLC, (the "Consultant"), a Texas Limited Liability Corporation and acting by and through Alex del Carmen, Ph.D , its duly authorized President, each individually referred to as a "party" and collectively referred to as the "parties." All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional services for the purpose of creating the 2012 Annual Racial Profiling Report. 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, and Exhibit "B," the TCLEOSE state form. 2. TERM. This Agreement shall commence upon the date that both the City and Consultant have executed this Agreement ("Effective Date") and shall continue in full force and effect upon submission of the 2012 Annual Racial Profiling Report to the City and a presentation to City Council and/or providing answers any follow up questions, if necessary, whichever comes later. 3. COMPENSATION. Upon completion of all services under this Agreement, Consultant shall invoice the City an amount not to exceed $4,850.00, which shall include all services associated with the 2012 Annual Racial Profiling Report being created under this Agreement. Within 30 days of receipt of the invoice, the City shall pay Consultant an amount not to exceed $4,850.00 in accordance with the provisions of this Agreement. 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. Convenience. The City may terminate this Agreement at any time and for any reason by providing Consultant with 30 days' written notice of termination. 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC OFFICIAL 'SCOW MTV' SECRCETARY FiTrn Nat% fj 1: 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, 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. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. 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. 5.2 Confidential Information. Consultant, for itself and its officers, agents and employees, 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. 5.3 Unauthorized Access. 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, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and 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, until expiration of three (3) years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years have access to and the right to examine at reasonable times any directly pertinent books documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges and work performed under this agreement, and not as agent 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 2 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 respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is 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. LIABILITY AND INDEMNIFICATION. A. LIABILITY - CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. B. INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, 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. C. COPYRIGHT INFRINGEMENT - Consultant agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the City for infringement of any patent, copyright, trade secret, or similar property right arising from City s use of the software and/or documentation in accordance with this agreement Consultant shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim, and City agrees to cooperate with it in doing so. City agrees to give Consultant timely written notice of any such claim or action with copies of all papers City may receive relating thereto. If the software and/or documentation or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise such use is materially adversely restricted, Consultant shall, at its own expense and as City s sole remedy, either (a) procure for City the right to continue to use the software and/or documentation; or (b) modify the software and/or documentation to make it non -infringing, provided that such modification does not materially adversely affect City's authorized use of the software and/or documentation; or (c) replace the software and/or documentation with equally suitable, compatible, and functionally equivalent non -infringing software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Consultant, terminate this agreement and refund to City the payments actually made to Consultant under this agreement. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 3 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 of the Consultant under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. COMPLIANCE WITH LAWS. ORDINANCES. RULES AND REGULATIONS. Consultant agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also 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. 11. 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 12. 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: City of Fort Worth Attn: Charles W Daniels, Assistant City Manager 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile (817) 392-8654 Legal Advisor 1000 Throckmorton Fort Worth, Texas 76102-6311 13. SOLICITATION OF EMPLOYEES. Del Carmen Consulting LLC. Attn Alex del Carmen, Ph D. 3051 Trevino Grand Prairie, Texas 75054 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. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 4 14. GOVERNMENTAL POWERS/IMMUNITIES. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 15. 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. 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 pursuant to 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. 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. 18. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including but not limited to, 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. 19. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement 20. 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. 21. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party. 22. 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 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 5 any provision of this Agreement. 23. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes be deemed an original, but all such counterparts shall together constitute one and the same instrument 24. WARRANTY OF SERVICES. Consultant warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Consultant's option, Consultant shall either (a) use commercially reasonable efforts to re -perform the services in a manner that conforms with the warranty, or (b) refund the fees paid by the City to Consultant for the nonconforming services. 25. IMMIGRATION NATIONALITY ACT. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant 26. RIGHTS TO CONTRACTUAL MATERIAL. Any and all writings, documents, or information produced by Consultant pursuant to the provisions of this Agreement are the exclusive property of City; no such writing, document, or information shall be the subject of any copyright or proprietary claim by Consultant, except for the format and template are the Consultant's intellectual property. Consultant understands and acknowledges that as the exclusive owner of any and all such writings documents, and information, City has the right to use all such writings, documents, and information as City desires, for any legal purpose. 27. INFORMAL DISPUTE RESOLUTION. If either City or Consultant has a claim dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. The mediator shall be 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 6 agreed to by the parties Each party shall be liable for its own expenses, including attorney's fees; however the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 28. LICENSES AND CERTIFICATIONS CONSULTANT must comply with or obtain all licenses, legal certifications, or inspections (if any) required for the services, facilities, equipment, or materials and all applicable state and federal laws and local ordinances must be complied with by CONSULTANT in connection with performance under this Agreement. Failure to comply with this requirement shall be treated as a default and will result in termination of this Agreement. 29. TESTIMONY Consultant is prohibited from voluntarily testifying against the City after the effective date of this Agreement. 30. 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. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.] 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 7 I�WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples thisay of 20 r r ACCEPTED AND AGREED: CITY OF FORT WORTH: By: harles W. Daniels Assistant City Manager Date: 23,jj APPROVAL RECOMMENDED: By: I. w. Jb ey VV. Halstea Chief of Police APPROVED AS TO FORM AND LEGALITY: t'essica Sangsvarig (Assistant City Attorney Contract Authorization: M&C: N/A Date Approved: ATTEST. By: Mary Kays City Secretary N/A CONSULTANT: By: Del.arm e �onsuiting, LLC, me: Al k del Carmen, Ph.D itle P sident Date: AI ii='� By: „,,_rcsis)4.-autrit, •cr,orl is;•zix sit 00000oos yk Abl V \%ras Ors 0o 4 g 0 4fi 0 Q\cr 000000°Q li4 4tb trxP,J 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC oFfigwevii. RECt,4:J CITy SE 8 EXHIBIT A STATEMENT OF WORK CONSULTANT agrees to use the 2012 racial profiling data collected by the Fort Worth Police Department to create the 2012 Annual Racial Profiling Report This report shall be completed in accordance with the requirements of Texas Senate Bill 1074, accepted standards for testing the validity of statistical data and contain all the information required by the attached TCLEOSE Form "Exhibit B' and I. Service Responsibilities of Consultant a. The Consultant shall use raw data of racial profiling numbers provided by the City from the dates of 1/1/12 to 12/31/12 to develop the 2012 Annual Racial Profiling Report. b. Consultant shall provide a first draft of the comprehensive statistical analysis including appropriate tables, graphs and citations to referenced materials to the City by February 11 2013. Once Consultant has received comments back from the City regarding the first draft, the Consultant has a right to consider or not the corrections and provide the final report to the City by February 25 2013 in a format acceptable to the City. d. On or before the respective due dates in Section b and c, an original of the annual report shall be emailed to Marty Humphrey at: Marty.Humphrey@fortworthtexas.gov e. On or before the respective due dates in Section b and c, an electronic version on compact disk of the annual reports shall be delivered to Marty Humphrey. f. Consultant shall be available to attend City Council meetings to present the report and answer any questions, if necessary g. In the event that follow up questions occur after the report has been presented to City Council, Consultant agrees to provide a written response to these questions. h. After submission of the report to City, Consultant shall be available to answer staff questions and provide a response in a reasonable time regarding the report during normal business hours of 8 a.m. to 5 p.m., Monday through Friday. Response may be submitted in writing if schedules do not agree to meet in person II. Duties of the City a. Provide Consultant with raw data of racial profiling numbers from 1/1/12 to 12/31/12 and e nsure that the categories of the raw data total City will provide Consultant totaled n umbers as well. b. Provide feedback of first draft of 2012 Annual Racial Profiling Report to the Consultant by February 18 2013. c. Be available to answer Consultant questions and respond in a reasonable time during n ormal business hours of 8 am to 5 pm, Monday through Friday. Confirm availability to attend a City Council meeting and provide at least a two week advance notice to Consultant if requested to make a presentation to City Council. Provide the information necessary to complete the two forms in "Exhibit "B". 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 9 EXHIBIT B Partial Exemption Racial Profiling Reporting (Tier 1) (This is the TCLEOSE recommended form. The form is not mandatory. The information contained in this form, however, is mandatory. You may use your form, but all information must be provided.) If you claim a partial exemption you must submit a report that contains the following data or use this format to report the data. Instructions: Please fill out all boxes. If zero, use 0. 1. Total on lines 4, 11, 14, and 17 Must be equal 2. Total on line 20 Must equal line 15 Number of motor vehicle stops: 1. citation only Mark only 1 category per vehicle stop 2. arrest only 3. both Race or Ethnicity: 5. African 6. Asian 7. Caucasian 8. Hispanic 9 Middle Eastern 10. Native American Race or Ethnicity known prior to stop? 12. Yes 13. No Search conducted? Was search consented? 15. 16. 18. 19. Yes No Yes No 20. Total Must equal #15 4. Total 11. Total 14. Total 17. Total 2012 Annual Racial Profiling Report Professional Services Agreement CFW & Del Carmen Consulting, LLC 10 • (I) Tier 1 Data Motor Vehicle -Related Contact Information (1/1/12 12/31/12) Exhibit B Race/Ethnicity* 111111-111-1111.- Caucasian African Hispanic Asian Native American Middle Eastern Other Contacts N Searches N i Consensual Searches N PC Searches Total 1 1 "N" represents "number" of motor vehicle -related contacts * Race/Ethnicity is defined by Senate Bill 1074 as being of a "particular descent, including Caucasian, African, Hispanic, Asian, Native American or Middle Eastern". **Figure has been rounded Number of instances where officers knew/did not know the race/ethnicity of the suspect before being detained: (Knew) (Did not Know) Number of complaints on alleged racial profiling between 1 / 1 / 12 and 12/31 / 12 : Number Outcome Custody Arrests N 2012 Annual Racial Profiling Report Professional Services Agreement CFW and Del Carmen Consulting, LLC 11