HomeMy WebLinkAboutContract 46357 CITY SECRETARY
COMTRACT NO
2014 ANNUAL RACIAL PROFILING REPORT
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, acting by and
through Charles Daniels, its duly authorized Assistant City Manager, and The Professional Development
Institute, Inc., (the"Consultant"), a Texas Corporation and acting by and through Ken Robertson, its duly
authorized President, each individually referred to as a "party" and collectively referred to as the
"parties."
Exhibits A and B 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 2014 Annual Racial Profiling Report. Attached hereto and incorporated for all purposes is Exhibit"A,"
Statement of Work, more specifically describing the services to be provided hereunder, and Exhibit"B,"
the Partial Exemption Racial Profiling Reporting Form. If the state form attached as Exhibit B is.
modified, Consultant agrees that it will complete the state form effective on January 1, 2015, instead of the
one attached to this Agreement.
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 2014
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 $2,500.00, which shall include all services associated with the 2014 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 $2,500.00 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
;v the City first approves such expenses in writing.
rn 4. TERMINATION.
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m 4.1. Convenience.
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The City may terminate this Agreement at any time and for any reason by providing
Consultant with 30 days'written notice of termination.
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4.2 Non-appropriation of Funds.
In the event no funds or insufficient funds are appropriated and budgeted or are
otherwise unavailable by any means whatsoever in any fiscal period for any payments due under
this Agreement, 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
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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.
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 execution 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 Agreement, 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 Agreement 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 (3)
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.
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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,
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. 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.
8.1 LIABILITY.- 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.
8.2 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,
LAWSUITS, ACTIONS, COSTS, AND EXPENSESOF ANY KIND, INCLUDING, BUT
NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING
ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING
LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY
RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (1) CONSULTANT'S
BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (11)
ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF
CONSULTANT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES,
CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS RELATED
TO THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY
PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY LIABILITY
RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS,
AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF
JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONSULTANT AND CITY,
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN
SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL
IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS.
8.3 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
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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
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:
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City of Fort Worth: Professional Development Institute:
Attn: Charles W. Daniels, Assistant City Manager Attn: Ken Robertson
1000 Throckmorton 2301 Hinkle Drive
Fort Worth TX 76102-6311 Denton, Texas 76201
Facsimile: (817) 392-8654
With a copy to:
Police Legal Advisor
1000 Throckmorton
Fort Worth, Texas.76102-6311
13. 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. 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 parry.
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 under and 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. 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 (collectively,
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"Force Majeure Event", 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, 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 A and B.
21. AMENDMENTS.
No amendment, modification, or alteration of the terms of this Agreement shall be binding unless
the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto.
22. ENTIRETY OF AGREEMENT.
This Agreement, including the exhibits attached hereto, 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.
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 (1-9), 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.
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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. 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.
28. TESTIMONY
Consultant and its employees are prohibited from voluntarily testifying against the City after the
effective date of this Agreement.
29. 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement in multiples this Z10 day of
tl (iL R 20 1
ACCEPTED AND AGREED:
CITY OF FORT WORTH: CONSULTANT.;
By: By:
arles W. Daniels Name: E en Robert n
Asses ant City Manager Title: esident
Date: N. /f". /.S Date:
APPROVAL RECOMMENDED: ATTEST:
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By: By:
Rhonda K. Robertson
Chief of Police
APPROVED AS TO FORM AND LEGALITY:
By: /1
Namey 1' li
Assistant City Attorney
Contract Authorization:
M&C: N/A
Date Approved: N/A
ATTEST:
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By:
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City cr ary $o
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EXHIBIT A
STATEMENT OF WORK
Consultant agrees to use the 2014 racial profiling data collected by the Fort Worth Police
Department to create the 2014 Annual Racial Profiling Report. This report shall be completed in
accordance with the requirements of Section 2.134 of the Code of Criminal Procedure, accepted
standards for testing the validity of statistical data and contain all the information required by Exhibit
B or as amended as described in Section 1 of this Agreement. Consultant and City agree to
complete the following:
I. Service Responsibilities of Consultant
a. The Consultant shall use raw data of racial profiling numbers provided by the City from
the dates of 1/1/14 to 12/31/14 to develop the 2014 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
13, 2015.
c. 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 20, 2015 in a format acceptable to the City.
d. On or before the respective due dates in Sections b and c, an original of the annual report
shall be emailed to Marty Humphrey at: Marty.Humphrey @fortworthtexas.gov.
e. Consultant shall provide on or before the respective due dates in Sections b and c above,
an electronic version of the annual report on compact disk to be delivered to Marty
Humphrey at the Fort Worth Police Department.
f. The 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 final 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 are not compatible to meet in person.
II. Duties of the City
a. Provide Consultant with raw data of racial profiling numbers from 1/1/14 to 12/31/14 and
ensure that the categories of the raw data total. City will provide Consultant totaled
numbers as well.
b. Provide feedback of first draft of 2014 Annual Racial Profiling Report to the Consultant by
February 16, 2015.
c. Be available to answer Consultant's questions and respond in a reasonable time during
normal business hours of 8 am to 5 pm, Monday through Friday.
d. 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.
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e. Provide the Consultant the Fort Worth Police Department's policy on racial profiling in
electronic format.
f. Provide the Consultant information on the public education process concerning racial
profiling including the racial profiling complaint process (e.g., websites and brochures).
g. Provide the Consultant information on officer training on racial profiling (e.g., have all
officers received the training, and if not, how many still need training).
h. Provide the information necessary to complete the form attached as"Exhibit"B".
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EXHIBIT B
PARTIAL EXEMPTION RACIAL PROFILING REPORTING (TIER 1)
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
AGENCY NAME:
Number of motor vehicle stops(mark only 1 category per vehicle stop):
1. Citation only
2. Arrest only
3. Both
4. (Total of 1-3)
Race or Ethnicity(mark only 1 category per vehicle stop):
5. African
6. Asian
7. Caucasian
8. Hispanic
9. Middle Eastern
10. Native American
11. (Total of 5-10, must be the same as#4)
Race or Ethnicity known prior to stop?
12. Yes
13. No
14. (Total of 12-13, must be the same as#4 and#11)
Search conducted?
15. Yes
16. No
17. (Total of 15-16, must be the same as#4,#11,and#14 above)
Was search consented?
18. Yes
19. No
20. (Total, must equal#15)
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