HomeMy WebLinkAboutContract 45154 On sl�m
PROFESSIONAL SERVICES AGREEMENT q
CONMICT NO.L.5�15
This PROFESSIONAL,SERVICES AGREEMENT("Agreement") is made and entered into by and between the
CITY OF FORT WORTH the "City"), a: home-rule municipal pal 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 olf this Agreement, City and Consultant may each be; referred to
individually as a 11 party" and collectively as the It parties."
1. SCOPE OF SERVICES.
Consultant hereby agrees in good faith and with due d'iligence 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 grielvancels against the City's current and
former employees (coil lelctively, the "Cor-riplaints"). 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 alnd, 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,, 201,3 and expiring ring 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 Terris, the City shall pay
Consultant a fixed fee of $45,,000,, payable in installments as set forth herein, plus expenses not to
exceed, $2.,500l in the, aggregate. Consultant projects that a review a,nd 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 251% of the project
cost ($11,250, plus the $2,500 for project expenses), and invoices for the remaining project costs,will be
submitted as followers: 25%, upoin the conclusion of Tasks 1, 2 and 3, on Exhibit A, 25% upon the
conclusion of Tasks 41 5 and 6 on Exhibit A. and 25%, upon the conclusion of Tasks 7and 8 on Exhibit A.
Provided that the City agrees that all, respective Tasks have been com�pleted upon receipt of any such
invoice, the City will play such invoice within 3,0 days of receipt.
The City shall not be, liable for any additional payment to Consultant unless such additional amount is
loz:: agreed to in writing in the form of an executed amendment to this Agreement or a separate contract
ll 71, between the parties. U tlou
OFFICIAL V1,Ec0R D
CITY SECRVARY,
IWO OtHs
WOR,
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Professional Services Agreement—CFW and Troy L. Coleman, Ph.D.
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 d,aays'written notice of termination.
4.2 Non-appropriation of Funds.
In the event no funds or insufficient funds are a,pprop�riated 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 appiropriationis,were receilved 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 thus 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 a,ny 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 whiich Consultant is entitled to payment in accordance
with the schedule set forth in Section 3,, Consultant shall be paid an hourly rate of $18,7.50 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 plaid 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 i,n, writing of any existing
or potential conflicts of interest related to Consultant's services under this Agreement. In the event that
any 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 a,ny 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—CF W and Troy,L. Coleman, Ph.D. Page 2 of 10,
6. INDEPENDENT CONTRACTOR.
it
is expre�ssly 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 empiloyee,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 respo�n eat su erlor shall not apply as between the City, its officers,,
agents,, servants, and employe�es 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 TH,E NEGLIGENT ACT(S) OR
OMISSIO(S , MALFEASANCE, OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS., AGENTS,
SERVANTS,, OR EMPLOYEES.
CONSULTANT COVENANTS AND AGREES TOI 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, WHETH,ER 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 agreelmilent with the City
and the Consultant under which the assignee agrees to be bound by the duties and obligat,ions, 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 Clity 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—CF W and Troy L.Coleman, Ph.D. Page 3 of 10
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this Agreement as such duties and obligations, may apply. The Consultant shall provide the City with, a
fully executed copy of a,n,y such subcontract.
9. INSURANCE.
Consultant shall provide the City with certificate(s) of insurance documenting policies of the following
minimum coverage limits that arse to be in effect prior to commencement of any work pursuant to this
Agreeme�n,t.-
9.1 Coverage and Limits.
Professional Liability(Errors&Omissions)
$1,0100,.0o0.0O 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 servicels. An annual
certificate of insurance shall be suibmitteld to the City to evidence colveragel.
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 he endorsed to name
the City as ain 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 Manage'r, City of Fort Worth, 1000
'-rhrockmorton, Fort Worth,Texas 76102,, with copies to the City Attorney at the same address.
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Professional Services Agreement—CF W and Troy L. Coleman, Ph.D. Page 4 of 10
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.
11. NON-DISCRIM I NATION 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 iscrim inate in the treatment or employment of any individual, or group of
individuals on any basis prohibited by law. If any claim arises from a,n 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, Statels Mail, registered, return receipt requested,,, addressed as
follows:
To CITY: To CONSULTANT.:
City of Fort Worth
A,ttn.- Asst.City Mgr for Publ'ic Safety Troy L. Coleman, Ph.D.
1000 Throckmorto,n Street P.O. Box 140836
Fort Wolrth,TX 76102,-6,311 Dallas,Texas 75214
Facsimile.- (8'17) 392-8654 ......
With copy to:
Law Department at same address
13. RIGHT TO AUDIT.
Coin,sul,ta,n,t agrees that the City shall, until,the expiration of three (3) years after final payment under this
i
Agreement a,ind 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
,P11rofessional Services Agreement—CFW and Troy L. Coleman, Ph.D. Page,-5 of 10
transactions, relating to this Agreement. Consultant agrees that the City shall' hawse access during normal
working hours to all necessary Consultant facilities and shall be provided adequate and appropriate
wo,rk 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 fallure of either party to insist upon, the performance of any term or provision of this Agreement or
to exercise any right granted heroin 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.SEVER ABILITY.
If any portion or p�rovi'sion 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 M,AJEU RE.
,
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, lockouuts, or other industrial disturbances; acts of
public enernies; wars; blockades, insurrections; riots; epidemics; public health cris,es, earthqua,kes; 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 laws issuance of a Level Orange or Level Red, Alert by the
ted 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 1 0
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. REVIE'W'O,F COUNSEL.
The parties ack nor led g,e that each party and its counsel have had the opportunity to review and revise
this Agreement and that the normal rules of con,struiction, 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, mod,ification, 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.
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 a,n,d
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 thin 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 pair,tyy, and that such binding authority has been granted by
proper order, resollutioln,ordinance or other authorization of the enitityy. The other party is fully entitled
Professional,Services Agreement—CFes' and Troy L. Coleman, Ph.D. Page 7 of 1 01
to rely on this warrantly and reipre sin tation in entering into this Agreement.
IN WITNESS WHEREOF, the partiles hereto have executed is Agreement in, multiples thiz ay of
2 0 13.
.
CITY OF FORT'WOiRTH1. TROD T' L,. COLEMAN, Ph.D.
01/
By: Oil
4s,istant City Manager
Date.- U. �3 Date-.,—
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ATTEST:, A17EST.-
W'l
B
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of, F
Ma ry J. Kilayse r
City Secretary
APPROVED AS TO, FORM AND LEGALITY:
jo,
City Attorney
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Professional Services Agreement CFW and'Troy L. C,oleman, Ph.D. eagle 8 of 10
EXHIBIT A
STATEMENT OF WORK
Consultant shall provide the City with services relateld to the review, investigation, and evaluation of the
complaints of Sgt. Dwayne E. Falco, Sgt., D. R. John,soin and April McCalib concerning their grieva,nces
against the City's current and former emiployees. 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. Iii elveillopmeant 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 (if) determine relevance of information presented,; and
I
b. Outline (i) how fact-find:ing should progress and (iii) 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 foirmal complaints, have been filed and th,at 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 i'nvestigation, should be addressed;
IF
d. Overview of the structure and anticipated timeline for the investigation;
i
e. Notice emphasizing, that reprisal or retaliation directed against any person filing a colrnpillaint
oar anyone participating in the course of'the investigation is prohibited by Title V11 of the 1964
Civil Rights Act; and
I
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 classif'ications 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—CPS"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 gatheir contact information for all such individuals.,
Task. 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 scheidu,l,e and conduct interviews
with each of the following groups of involved parties: (1) corriplainiants; (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 a�nalyze the documentation to develop recomm end�ations, regarding
determination, resolution,aind/oir remediial, 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
recornmendations. 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. Pre,paration of lnvtLti gationi Su,m,m!ary — In this task, Consultant will prepare its Investigation
Summary, desc,ribling 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 Re ort—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—CFA" and,Troy L. Coleman, P,h.D., Page 10 of 10