HomeMy WebLinkAboutContract 46436 CITY SECRETAW
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" or "Client"), a home-rule municipal
corporation of the State of Texas, acting by and through its duly authorized Assistant City
Manager, and SHERPA GOVERNMENT SOLUTIONS, LLC ("Consultant"), a Delaware
limited liability company, acting by and through its duly authorized Managing Partner. City and
Consultant are each individually referred to herein as a"party" and collectively referred to as the
"parties." The term "Consultant" shall include the Consultant, its officers, agents, employees,
representatives, contractors, or subcontractors. The term "City" shall include its officers,
employees, agents, and representatives.
1. Scope of Services. Consultant hereby agrees, with good faith and due diligence, to
provide the City with professional programming services to modify various reports within the
budget reporting analysis support system (BRASS) to accommodate requested changes.
Consultant shall perform the Services in accordance with standards in the industry for the same
or similar services.
2. Term. This Agreement shall commence on 12/16/2014 ("Effective Date") and shall
expire no later than 9/30/2015 ("Expiration Date"), unless terminated earlier in accordance with
the provisions of this Agreement or otherwise extended by the parties. This Agreement may be
renewed once at the City's option or upon mutual written consent of the parties.
3. Compensation.
3.01 Fees; Contract Amount. As full and complete compensation for services under this
Agreement, the City shall pay Consultant a fee of One Hundred and Fifty Dollars
($150.00) per hour for up to sixty(60) hours of services as detailed below. The City shall
not be responsible for reimbursing any Consultant expenses. The amount that the City
shall be required to pay under this Agreement shall not exceed Nine Thousand Dollars
($9,000.00) total. Consultant is neither authorized nor obligated to expend additional
effort beyond the 60 hours authorized herein without the mutual agreement of the parties
and the execution of an amendment to the Agreement. The Customer is under no
obligation to utilize any or all of the 60 hours.
3.02 Invoices. Consultant shall bill the City for service in quarter-hour increments. In order
to receive payment, Consultant shall invoice the City. Invoices may be submitted no
more often than once every two (2) weeks. Each invoice will include (i) the beginning
and ending date of the period covered by the invoice, (ii) the identity of each individual
providing services, (iii) the number of hours worked by each individual during the
invoice period, (iv) the total amount due under the invoice, (v) the cumulative total.
number of hours of service provided from the beginning of service through the end of the
invoice period and total cumulative fee billed through the end of the invoice period.
3.03 Billing Disputes; Interest. City shall generally pay each invoice within thirty (30)
calendar days of the date the City receives the invoice. If City withholds any invoiced
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amount which it disputes in good faith, City must pay all undisputed amounts on the
invoice within the agreed payment period and promptly notify Consultant of the specific
amount in dispute and the reasons why it disputes the amounts. Consultant and City will
work together in good faith to resolve any timely disputed amount in a prompt and
mutually acceptable manner. If City does not pay an invoice for an undisputed amount
within thirty (30) calendar days of the date the invoice is received, Consultant may add an
interest charge in accordance with Texas law regarding prompt payment by government
entities; this interest will begin to accrue on the day after the payment due date and will
accumulate on the outstanding balance on a daily basis until paid in full.
4. Termination.
4.1. Convenience. Either 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. Breach. If either party commits a material breach of this Agreement, the non-breaching
party must give written notice to the breaching party that describes the breach in
reasonable detail. The breaching party must cure the breach ten (10) calendar days after
receipt of notice from the non-breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non-breaching party may, in its sole discretion, and without prejudice to any other right
under this Agreement, law, or equity, immediately terminate this Agreement by giving
written notice to the breaching party.
4.3 Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the
City in any fiscal period for any payments due hereunder, the City will notify Consultant
of such occurrence and this Agreement shall terminate on the last day of the fiscal period
for which appropriations were received without penalty or expense to the City of any
kind whatsoever, except as to the portions of the payments herein agreed upon for which
funds have been appropriated.
4.4 Post-Termination 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.
5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made
full disclosure in writing of any existing or potential conflicts of interest related to
Consultant's services under this Agreement. In the event that any conflicts of interest
arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to
make full disclosure to the City in writing.
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5.2 Confidential Information. The City acknowledges that Consultant may use products,
materials, or methodologies proprietary to Consultant. The City agrees that Consultant's
provision of services under this Agreement shall not be grounds for the City to have or
obtain any rights in such proprietary products, materials, or methodologies unless the
parties have executed a separate written agreement with respect thereto. Consultant, for
itself and its officers, agents and employees, 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.
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, 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 not less than 10
days' written notice of any 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, 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 not less than 10 days' written notice of any intended audits.
This section shall survive the expiration or termination of this Agreement.
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 or
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subcontractors. Consultant further agrees that nothing herein shall be construed as the creation
of a partnership or joint enterprise between City and Consultant. . It is further understood that the
City shall in no way be considered a Co-employer or a Joint employer of Consultant or any
officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor
any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any
employment benefits from the City. Consultant shall be responsible and liable for any and all
payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants,
employees or subcontractors.
8. Liability and Indemnification.
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 ACTS) 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,
LAWSUITS, ACTIONS, COSTS, AND/OR EXPENSES OF ANY KIND OR CHARACTER,
REAL OR ASSERTED, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PR OPER TY
DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S
BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY
(INCLUDING DEATH) TO ANY AND ALL PERSONS THAT MAY RELATE TO, ARISE
OUT OF, OR BE OCCASIONED BY (i) CONSULTANT'S BREACH OF ANY OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT OR (II) ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS,
AGENTS,ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR
SUBCONTRACTORS RELA TED TO THE PERFORMANCE OF THIS A GREEMENT. 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. 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 ASA WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY
AS FUR THER PROVIDED BY THE LA WS OF TEXAS.
Consultant shall require all of its subcontractors to include in their subcontracts a release
and indemnity in favor of City in substantially the same form as above.
This section shall survive the expiration or termination of this Agreement.
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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.
10.1 During the term of this Agreement, Consultant shall procure and maintain at all times, in
full force and effect, a policy or policies of insurance that provide the specific coverage
set forth in this Section as well as any and all other public risks related to Consultant's
performance of its obligations under this Agreement. Consultant shall specifically obtain
the following types of insurance at the following limits:
1. Commercial General Liability with a combined limit of not less than $1,000,000 per
occurrence.
2. Automobile Liability Insurance with a combined limit of not less than $1,000,000 per
occurrence.
3. Professional Liability (Errors & Omissions) in the amount of$1,000,000 per claim
and $1,000,000 aggregate limit.
4. Statutory Workers' Compensation and Employers' Liability Insurance requirements
per the amount required by statute.
5. Any other insurance as required by City.
10.2 General Insurance Requirements:
1. Each required insurance policy must be written by a company that is licensed to do
business in Texas or that is otherwise approved in writing by the City's Risk Manager.
2. All applicable 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.
3. The workers' compensation policy shall include a Waiver of Subrogation (Right of
Recovery) in favor of the City of Fort Worth.
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4. 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.
5. 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.
6. Any failure on the part of the City to request required insurance documentation shall
not constitute a waiver of the insurance requirement.
7. 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 Law. Consultant, its officers, agents, servants, employees, and
subcontractors, shall abide by and comply with all laws, federal, state and local, including all
ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the
attention of Consultant any such violation on the part of Consultant or any of its officers, agents,
servants, employees, or subcontractors, then Consultant shall immediately desist from and
correct such violation.
12. Non-Discrimination. In the execution, performance, or attempted performance of this
Agreement, Consultant will not discriminate against any person or persons because of disability,
age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will
Consultant permit its officers, agents, servants, employees, or subcontractors to engage in such
discrimination.
This Agreement is made and entered into with reference specifically to Chapter 17,
Article 111, Division 3, of the City Code of the City of Fort Worth ("Discrimination in
Employment Practices"), and Consultant hereby covenants and agrees that Consultant, its
officers, agents, employees, and subcontractors have fully complied with all provisions of same
and that no employee or employee-applicant has been discriminated against by either Consultant,
its officers, agents, employees, or subcontractors.
13. Governing Law; Venue. This Agreement shall be subject to and construed in
accordance with the laws of the State of Texas. Should any action, whether real or asserted, at
law or in equity, arise out of the execution, performance, attempted performance of this
Agreement,venue for said action shall lie in Tarrant County, Texas.
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14. Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other
party by hand-delivery or via U.S. Postal Service certified mail, postage prepaid, to the address
of the other party shown below:
Alan Shuror, Budget Manager David Farrell, Managing Partner
City of Fort Worth Sherpa Government Solutions
1000 Throckmorton St. 13211 Farley treet
Fort Worth, Texas 76102 Overland Park, Kansas 66213
(817) 392-6183 (913) 221-5422
With copy to:
City Attorney's Office at same address
15. 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.
16. Non-Waiver. The failure of either party to insist upon the performance of any term or
provision of this Agreement or to exercise any right herein conferred shall not be construed as a
waiver or relinquishment to any extent of City's or Consultant's right to assert or rely on any
such term or right on any future occasion.
17. Diversity Business Enterprise Participation. In accordance with the City Code, the
City has goals for the participation of diversity business enterprises in City contracts. Consultant
acknowledges the goal established for this Agreement and its commitment to meet that goal.
Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission
of fraud by the Consultant may result in the termination of this Agreement and debarment from
participating in City contracts for a period of time of not less than three (3) years. ,
18. Governmental Powers. Both parties agree and understand that the City does not waive
or surrender any of its governmental powers by execution of this Agreement.
19. 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.
20. Force Maieure. The City and Consultant shall exercise their best efforts to meet their
respective duties and obligations as set forth in this Agreement, but 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
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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"), the obligations so affected by such Force Majeure Event will be suspended only during
the continuance of such event.
21. 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.
22. Counterparts; Electronically Reproduced Signatures. This Agreement may be
executed in 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. An executed
Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it
is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the
document by any party. Duplicates are valid and binding even if an original paper document
bearing each party's original signature is not delivered.
23. Third Party Beneficiaries. The provisions and conditions of this Agreement are solely
for the benefit of the City and Consultant, and their lawful successors or assigns, and are not
intended to create any rights, contractual or otherwise, to any other person or entity.
24. 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 exhibits hereto.
25. Amendment. 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.
26. Signature Authority. The person signing this Agreement hereby warrants that he or she
has the legal authority to execute this Agreement on behalf of his or her 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 amendments thereto.
27. Entire Agreement. This written instrument (together with any attachments, exhibits,
and appendices) constitutes the entire understanding between the parties concerning the work
and services to be performed hereunder, and any prior or contemporaneous, oral or written
agreement that purports to vary from the terms hereof shall be void.
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EXECUTED in multiple originals on this, the �L of r YI�CGt , 2015.
CITY OF FORT WORTH,TEXAS SHERPA GOVERNMENT SOLUTIONS
r
Susan Alanis David Farrell
A`Ssi ht City Manager Managing Partner
Date Signed: 2, t �3v IOPr Date Signed: 01/20/2015
ATTEST: ,° i WITNESS:
8Z
M Kayser ace
City Secretary s
APPROVED AS TO FORM
LEGALITY:
Denis dLVAcElroy
Assistant City Alto
No M&C Required
OFFICIAL RECORD
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