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HomeMy WebLinkAboutContract 45154 (2)• PROFESSIONAL SERVICES AGREEMENT CITY 8ECRErAPV �*9TGA©T 5'5q 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 of the State of Texas, acting by and through its duly authorized Assistant City Manager, and TROY L. COLEMAN, Ph.D., an individual ("Consultant"). For purposes of this Agreement, City and Consultant may each be referred to individually as a "party" and collectively as the "parties." 1. SCOPE OF SERVICES. Consultant hereby agrees in good faith and with due diligence to provide the City with professional consulting services related to a review, investigation, and evaluation of the complaints of Sgt. Dwayne E. Dalco, Sgt. D. R. Johnson and April McCalib concerning their grievances against the City's current and former employees (collectively, the "Complaints"). Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, which more specifically describes the services to be provided hereunder. All work produced by Consultant pursuant to this Agreement will be considered works for hire and will be the sole and exclusive property of the City. 2. TERM. This Agreement shall govern and encompass all services provided by Consultant to City during an initial two month period, beginning November 18, 2013 and expiring January 17, 2014 (the "Term"), unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. As full and complete compensation for services provided during the Initial Term, the City shall pay Consultant a fixed fee of $45,000, payable in installments as set forth herein, plus expenses not to exceed $2,500 in the aggregate. Consultant projects that a review and investigation of this nature will require approximately 240 work hours during the Term Upon receiving written authorization from the City to begin the work outlined in Exhibit "A", Consultant will present an invoice for 25% of the project cost ($11,250, plus the $2,500 for project expenses), and invoices for the remaining project costs will be submitted as follows: 25% upon the conclusion of Tasks 1, 2 and 3 on Exhibit A, 25% upon the conclusion of Tasks 4, 5 and 6 on Exhibit A, and 25% upon the conclusion of Tasks 7 and 8 on Exhibit A. Provided that the City agrees that all respective Tasks have been completed upon receipt of any such invoice, the City will pay such invoice within 30 days of receipt. r+`1 The City shall not be liable for any additional payment to Consultant unless such additional amount is agreed to in writing in the form of an executed amendment to this Agreement or a separate contract c between the parties. • .nttz Cis 3 Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. m©tAL RECOltr Mf\ SECRETARY F1'0 4. TERMINATION. 4.1. Written Notice. Either party may terminate this Agreement at any time, with or without cause, by providing the other party with 30 days' written notice of termination. 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence, and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to its expiration, the City shall pay Consultant for services actually rendered up to the effective date of termination, and, unless the City requests that Consultant cease all work as of the date of the termination notice, Consultant shall continue to provide the City with any additional services requested by the City in writing and in accordance with this Agreement up to the effective date of termination. In this event, unless Consultant completes by the effective date of termination a set of Tasks for which Consultant is entitled to payment in accordance with the schedule set forth in Section 3, Consultant shall be paid an hourly rate of $187.50 for all work produced between the date of the termination notice and the effective date of termination, provided, however, that the total amount to be paid on the basis of such hourly rate shall not exceed 25% of Consultant's fixed fee. 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 conflict of interest arises following execution of this Agreement, Consultant shall immediately 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 ("City Information") 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. Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 2 of 10 6. 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 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. 7. 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 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 PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO ANY BUSINESS AND ANY RESULTING LOST PROFITS) 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 ACT(S) OR OMISSION(S), MALFEASANCE, OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations, or rights under this Agreement without the prior written consent of the City. Any attempted or purported assignment or subcontract entered into without the City's consent shall be void. 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 Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 3 of 10 7-3 r7m-m this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 9. INSURANCE. Consultant shall provide the City with certificate(s) 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: 9.1 Coverage and Limits. Professional Liability (Errors & Omissions) $1,000,000.00 Each Claim Limit $1,000,000.00 Aggregate Limit Professional Liability coverage may be provided through an endorsement to a Commercial General Liability (CGL) policy or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be written on a claims -made basis and be maintained for the duration of this Agreement and for one (1) year following completion of services. An annual certificate of insurance shall be submitted to the City to evidence coverage. 9.2 Certificates. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. Any commercial general liability insurance policies required under this Agreement shall be endorsed to name the City as an additional insured thereon, as its interests may appear. All policies shall contain a Waiver of Subrogation for the benefit of the City of Fort Worth. 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. Consultant shall notify City immediately upon receipt of any notice of cancellation or reduction in limits of coverage for any insurance policy required under this Agreement. On receipt of such notice, Consultant shall acquire additional or alternate insurance to ensure that all types and amounts of coverage required herein remain in place at all times and shall promptly provide City with certificates for any such additional or alternate insurance. In addition to any notice required under Section 12 all insurance -related notices shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 4 of 10 10. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Consultant 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. 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 agent, employee, servant, or representative, (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 CITY: To CONSULTANT: City of Fort Worth Attn: Asst. City Mgr for Public Safety 1000 Throckmorton Street Fort Worth TX 76102-6311 Facsimile: (817) 392-8654 With copy to: Law Department at same address 13. RIGHT TO AUDIT. Troy L. Coleman, Ph.D. P.O. Box 140836 Dallas, Texas 75214 Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement and at no additional cost to the City, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Consultant involving Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 5 of 10 transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. This provision shall survive expiration or termination of this Agreement. 14. 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. 15. NO WAIVER. The failure of either party 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 governed by and 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. 17. SEVERABILITY. If any portion or provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining portions and 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. If either party is unable either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances acts of public enemies wars, blockades; insurrections; riots; epidemics; public health crises earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal state, county or City government in accordance with applicable law; 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"), Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 6 of 10 the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. 19. 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. 20. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have had the opportunity to review and revise 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 any exhibit hereto. 21. AMENDMENTS / MODIFICATIONS / EXTENSIONS. No extension, modification, or amendment of this Agreement shall be binding upon a party hereto unless 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. 22. ENTIRETY OF AGREEMENT. This written instrument (together with any exhibit attachment, or schedule attached hereto and any documents incorporated herein by reference) contains and constitutes 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. 23. 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 Professional Services Agreement -- CFW and Troy L. Coleman, Ph.D. Page 7 of 10 to rely on this warranty and representation in entering into this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this_g'::,. day of f\itWvnluv ,2013. CITY OF FORT WORTH: TROY L. COLEMAN, Ph.D. A sista nt City Manager A sistant City Manager Date: /1. Z6. , /3 ATTEST: Bv: - t 6 MaryJ. Kayser City Secretary APPROVED AS TO FORM AND LEGALITY: By. City Attorney CiCe‘ Date: 1/ [//3 ATTEST: ..Its-k�f-.��i .�f ILA C> tom_ at 0 cy °et r AI.) -4b it ,F-' -i.- `U F\JJ ? Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 8 of 10 EXHIBIT A STATEMENT OF WORK Consultant shall provide the City with services related to the review, investigation, and evaluation of the complaints of Sgt. Dwayne E. Dalco, Sgt. D. R. Johnson and April McCalib concerning their grievances against the City's current and former employees. In particular, Consultant will complete each of the below -listed Tasks in accordance with the terms of the Agreement and this Statement of Work. Task 1. Development of Investigative Plan - The activities of this task will help establish a course of action for investigation, evaluation, and resolution of the complaints. Consultant will present the City of Fort Worth and the Fort Worth Police Department with a detailed list of data and documents to be used to understand the details of the complaints and the environment giving rise to them. In addition, Consultant will: a. Review all available, problem -defining complaint documents in order to (i) identify the issues and (ii) determine relevance of information presented; and b. Outline (i) how fact-finding should progress and (ii) the necessary steps and the type of information that needs to be sought to properly evaluate the allegations. Task 2. Preparation of Notice to Involved Parties — In this task Consultant will develop notice forms to provide complainants, managers, accused employees, witnesses, and other involved parties with the following information: a. Notice that formal complaints have been filed and that an investigation is occurring; b. Description of the process to be used for investigating the complaints; c. Identification of designated points of contact to whom all questions and concerns regarding the complaints and/or investigation should be addressed; d. Overview of the structure and anticipated timeline for the investigation; e. Notice emphasizing that reprisal or retaliation directed against any person filing a complaint or anyone participating in the course of the investigation is prohibited by Title VII of the 1964 Civil Rights Act; and f. Description of other issues relevant to the protocol of the investigation, with such description tailored to address those issues specifically applicable to each of the following classifications of involved parties: (1) complainants; (2) managers; (3) accused employees; (4) witnesses; and (5) other Fort Worth Police Department employees or officials believed to have information pertinent to a full and complete evaluation of the complaints. Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 9 of 10 Task 3. Review of Current Information — In this task, Consultant will conduct a desk review of all available information and documents to determine what is known and to develop recommendations about how interview notes or other documentation should be used in evaluating the allegations in the complaints. In addition, other information gathering steps will be taken to support recommendations for resolving the complaints. As part of its review, Consultant will identify witnesses who may have knowledge of the situation or events resulting in the complaints or may have information regarding relevant City or Police Department policies and will gather contact information for all such individuals. Task 4. Information Gathering — In this task, Consultant will prepare formal requests for additional documents that Consultant deems necessary to thoroughly evaluate the complaints and shall serve such requests on the following groups of individuals: (1) complainants; (2) managers; (3) accused employees; (4) witnesses; and (5) other Fort Worth Police Department employees or officials believed to have pertinent information. In addition, as part of this task, Consultant will gather relevant policy documentation official publications, and other formal or informal communications that may have bearing on the full and complete evaluation of the complaints. Task 5. Interviews of Involved Parties — In this task, Consultant will schedule and conduct interviews with each of the following groups of involved parties: (1) complainants (2) managers (3) accused employees; (4) witnesses; and (5) other Fort Worth Police Department employees or officials believed to have information pertinent to a full and complete evaluation of the complainants. Consultant will document all interviews and analyze the documentation to develop recommendations regarding determination, resolution, and/or remedial action. Task 6. Post -Interview Follow Up — In this task, Consultant will analyze all information gathered and developed in the preceding tasks and determine what additional or follow up documentation or information is needed to complete the evaluation of the complaints and prepare findings and recommendations. Consultant will distribute requests for such documentation and information, review the data received in response to the requests, and complete the evaluation of the complaints. In addition, Consultant will confer with the City Manager's Office to finalize the format Consultant is to use in presenting the City with Consultant s Investigation Summary and its Final Report. Task 7. Preparation of Investigation Summary — In this task, Consultant will prepare its Investigation Summary, describing in detail (1) the process Consultant used in its investigation and evaluation, including an identification of all documents reviewed, individuals interviewed, and time spent in reviewing documents, conducting interviews, and analyzing data in light of applicable law and City policy; and (2) all issues raised in the complaints. Task 8. Presentation of Final Report — In this task, Consultant will present the City Manager's Office with its Final Report, including findings and recommendations regarding each issue identified in the Investigation Summary and specifically providing recommendations on actions to formally resolve the complaints, which may include, but are not limited to, recommending remediation or conciliation and closure. Professional Services Agreement — CFW and Troy L. Coleman, Ph.D. Page 10 of 10