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HomeMy WebLinkAboutContract 44731 (2)City Secretary Contract No. 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 Charles Daniels, its duly authorized Assistant City Manager, and W.A. Waterman & Company with offices at 8827 S. Santa Fe, Oklahoma City, OK. 73139-8410. CONTRACT DOCUMENTS: The Contract Documents shall include the following in order of precedence: This Professional Services Agreement Statement of Work — Exhibit A Exhibit B — Payment Schedule and Rates Exhibit C — Work Verification Form Exhibit D — Rate Schedule All Exhibits shall be attached and incorporated into the Professional Services Agreement for all purposes herein. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with temporary consulting services for professional consulting_for the purpose of performing an audit of gas royalty payment and production information related to the Spinks and Rall Unit gas wells located in Fort Worth, Texas. 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. The term Consultant shall include Consultant, its officers, agents, employees, directors, representatives, temporary employees, or any individuals who provide services to the City pursuant to this Agreement. The term "City" shall include its officers, agents, employees, directors, and authorized representatives. 2. TERM. This Agreement shall commence upon the last date executed by the parties ("Effective Date") and shall expire on December 31, 2013, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed $41,500.00 in accordance with the provisions of this Agreement, as outlined in the Payment Schedule attached as Exhibit "B", and Rate Schedule attached as Exhibit "D", which are incorporated for all purposes herein. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Written Notice. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 Non -appropriation of Funds. Form Services Agreement W.A. Waterman & Co. Page 1 of 11 OFFICIAL RECORD CITY SECRETARY RECEIVED AUG 21 Mr, WORM TX City Secretary Contract No. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the 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. 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 Consultants 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, until the expiration of two (2) years after final payment under this contract, 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 two (2) years after final payment of the subcontract, 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 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. . It is further understood that the City shall Form Services Agreement W.A. Waterman & Co. Page 2 of 11 City Secretary Contract No. 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. 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. 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 CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. 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: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate Limit (b) Automobile Liability $300,000 Each occurrence on a combined single limit basis $100,000 Aggregate Limit 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. Form Services Agreement W.A. Waterman & Co. Page 3 of 11 City Secretary Contract No. ti Technology coverage may be provided thro h an endorsement to the Commercial General Liability (CGL) policy, or a separate policy ecific to Technology E&O. Either is acceptable if coverage meets all other requirements. C verage shall be claims -made, and maintained for the duration of the contractual agreement a d for two (2) years following completion of services provided. An annual certificate of insurance shall be sqmitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice 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. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) 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. 11. 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. 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 Form Services Agreement W.A. Waterman & Co. Page 4 of 11 City Secretary Contract No. follows: TO THE CITY: City of Fort Worth Attn: Office of City Auditor/Terry Holderman 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile: (817) 392-6133 TO CONSULTANT: Name: W.A. Waterman & Co. Attn: Bill Waterman Address: 8827 Santa Fe Oklahoma City, OK. 73139-8410 Facsimile: 405-632-6466 14. 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. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Form Services Agreement W.A. Waterman & Co. Page 5 of 11 City Secretary Contract No. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. 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. 22. AMENDMENTS / MODIFICATIONS 1 EXTENSTIONS. 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. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. 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. 25. NETWORK ACCESS. If Consultant requires access to the City's computer network in order to provide the services herein, Consultant shall execute the Network Access Agreement which is currently not attached. [SIGNATURE PAGE FOLLOWS] Form Services Agreement W.A. Waterman & Co. Page 6 of 11 City Secretary Contract No. Executed in multiples this the /)//`day of Ai/iAl , 20/ 3 AGREED: CITY OF FORT WORTH: (Assistant City Manager Date: OS. Zo . ATTEST: By: dity Sec APPROVED AS �,6 'ORM A'JD LEGALITY: Assistant City Aorney CONTRACT AUTHORIZATION: M&C: N/A Date Approved: Form Services Agreement W.A. Waterman & Co. Page 7 of 11 AGREED: [W.A. Waterman & Company]; By:, .I() l.,r %L:/ Name Date: /7 �-o/ a / ' ,f TTEST: SZe7y OFFICIAL RECORD CITY SECRETARY fFT. WORTH, TX City Secretary Contract No. EXHIBIT A STATEMENT OF WORK Consultant agrees to provide Oil's Gas Consulting services, in accordance with the highest professional industry standards. These services will consist of providing the following: • Develop audit programs, and on -going analysis of Oil's gas revenues • Analysis and review of Oil's gas lease • Training of client personnel • Develop comprehensive revenue monitoring system for client's gas revenues Consultant is expected to notify Office of City Auditor (OCA) staff and management of any issues and/or situations that may impact their completion of the above -mentioned services. Any significant issues and/or problems noted during the performance of this Agreement should also be discussed with OCA management to ensure the City receives the end product contracted for pursuant to this Agreement. Form Services Agreement W.A. Waterman & Co. Page 2 of 11 City Secretary Contract No. EXHIBIT B PAYMENT SCHEDULE Consultant and/or consultant's employee(s) assigned under this agreement will submit a "WORK VERIFICATION FORM" or substitute form, containing the same information as outlined in the form of Exhibit "C" for the City's approval at the end of each week. The City's approval thereby will indicate its acceptance of the consultant services provided in accordance with this Agreement. The payment will be based upon hourly rates and associated expenses as outlined in Exhibit "D" Rate Schedule. Total payments under this Agreement shall not exceed $41,500.00. Form Services Agreement W.A. Waterman & Co. Page 3 of 11 City Secretary Contract No. EXHIBIT C WORK VERIFICATION FORM Name of Consultant: Name of Personnel Assigned: Audit Project #: Date of Submission: Number of Hours Worked: Description of Work Completed and number of hours: Comments from City Audit Staff (if needed): Work Approved Work Not Approved Approved by Contractor: Approved by City: Signature: Signature: Printed Name: Printed Name: Title: Title: Date: Date: For City Use Only Total Contract Amount: Approved Payment Amount: (rate X hrs worked) Remaining Balance: Remaining Hours: Form Services Agreement W.A. Waterman & Co. Page 4 of 11 City Secretary Contract No. EXHIBIT D RATE SCHEDULE W. A. WATERMAN & CO. Oil & Gas Consultants SPECIAL PROJECTS FEE SCHEDULE JANUARY 1, 2013 Prepared for The City of Fort Worth, Texas CONSULTANT FEES: W. A. Waterman Cindy Heymans John Wilson Idalia Romanos Staff Consultant $190.00/hour $175.00/hour $160.00/hour $160.00/hour $125.00/hour For work in connection with proposed or on -going litigation, a separate fee schedule will be applicable. EXPENSES: Expenses may include but will not necessarily be limited to travel, transportation, lodging, telephone, duplicating services and other expenses deemed reasonable and necessary to the conduct of our engagement. Personal living expenses may be charged at actual costs incurred or at a fixed per -diem rate mutually agreed to prior to commencement of the engagement. ADMINISTRATIVE COSTS: Administrative (Clerical) / Data Input $ 65.00/hour Postage, Long -Distance, Supplies, Misc. Actual TRAVEL EXPENSES: Company or Personal Automobile $ .60/mile PERSONAL LIVING EXPENSES: Hotel/Motel, Meals, Laundry Actual or Telephone, Supplies, Miscellaneous, Per -Diem and any other necessary expense. Form Services Agreement W.A. Waterman & Co. Page 5 of 11