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HomeMy WebLinkAboutContract 41019-SA1GM C T CONTRACT Nov SETTLEMENT AGREEMENT AND RELEASE I. PARTIES This Settlement Agreement and Release ("Settlement Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation located in the State of Texas and situated in portions of Tarrant, Denton and Wise Counties, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Bermex, Inc. ("Bermex"), a Michigan Corporation. The City and Bermex are collectively referred to as the "Parties." II. RECITALS WHEREAS, effective October 1, 2010, the City entered into a Professional Services Agreement with Bermex, Inc. (City Secretary Contract No. 41019, the "Contract"), whereby Berrnex agreed to provide the City with professional consulting services for the purpose of ensuring that monthly water meter readings were conducted accurately throughout the City; and WHEREAS, the term of the Contract was for one year with five one-year renewal options; and WHEREAS, the Parties are currently in the Contract's third option period which expires on September 30, 2014; and WHEREAS, on or about April 2014, the City alleged that Bermex's employee submitted erroneous meter readings, which Bermex disputes, and consequently the Parties are engaged in a dispute over the accuracy of those water meter readings (the "Dispute"); and WHEREAS, the Parties are engaged in negotiations over renewal of the Contract; and WHEREAS, the Parties mutually wish to reach a full, final and complete resolution of the Dispute and all other claims and potential claims arising from the dispute and to continue their business relationship under the terms and conditions of the Contract for the fourth renewal option, as more fully set forth herein. III. TERMS NOW THEREFORE, in consideration of the mutual promises, conditions and covenants described herein, including the Recitals set forth above, which are incorporated herein by reference, and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows: RECEIVED OCT 0 `r 2014 1. RELEASE. For the Payment and Other Consideration outlined in this Settlement Agreement, and as it relates to the Dispute, the City (and each of its current and former employees, attorneys, agents, representatives, divisions, affiliated entities, subsidiaries, successors, trustees, executors, assigns, and related entities) releases, remises, acquits, forever discharges, and covenants not to sue (as a full settlement and as an accord and satisfaction) Bermex (and each of its current and former members, officers, directors, owners, shareholders, partners, employees, attorneys, agents, representatives, divisions, affiliated entities, subsidiaries, related entities, parents, heirs, beneficiaries, successors, trustees, executors, and assigns) from any and all claims, however denominated, and manners of action, causes of action, suits, debts, obligations, choses in action, contracts, torts, covenants, claims, rights of contribution and/or indemnification, rights of subrogation, sums of money judgments, executions, liabilities, damages, interest, fees, costs expenses, demands and rights whatsoever, contingent or non -contingent, in law or in equity, known or unknown, suspected or unsuspected, previously existing, or existing as of the date of this Settlement Agreement, arising from or relating in any way to the Dispute. 2. CONTRACT RENEWAL. Concurrent with the execution of this Settlement Agreement, the City also agrees to execute the .fourth option renewal for the Contract, effective October 1, 2014, as amended in Exhibit A. Both parties agree to enter into an amendment to the Contract as shown in Exhibit "A" concurrent with the execution of this Settlement Agreement. Except as shown in Exhibit "A•" no other terms or conditions of the Contract shall be amended. 3. PAYMENT AND OTHER CONSIDERATION. Bermex shall pay the City $6,400, which shall be effectuated through a credit of $6,400 applied to the invoice for services provided by Bermex in September 2014. This shall be in addition to the $1,280 already paid by Bermex to the City in connection with the Dispute. Bermex also shall reduce the cost per meter (for the fourth option Contract year only) by $.01 per meter. 4. ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST. This Settlement Agreement contains the entire agreement between the City and Bermex regarding the matters set forth herein, and it shall be binding upon and inure to the benefit of the administrators, personal representatives, heirs, successors, and assigns of each. 5. CONSTRUCTION BY STATE LAW. This Settlement Agreement is entered into in the State of Texas and shall be construed and interpreted in accordance with its laws. Page 2 of 5 6. NO ADMISSION OF LIABILITY. It is understood and expressly agreed that neither the payment of the settlement amount nor anything contained within this Settlement Agreement shall be construed as an admission of any liability whatsoever on the part of Bermex. The Parties acknowledge and agree that this Settlement Agreement is made in compromise and settlement of a disputed claim and that by entering into this Settlement Agreement neither party intends to admit the correctness of the other party's contentions. 7. SEVERABILITY. The Parties acknowledge and agree that if any part, term or provision of this Settlement Agreement is determined by the courts to be invalid, illegal or in conflict with any law of the State of Texas, the validity of the remaining portions or provisions shall not be affected thereby. 8. EFFECTIVENESS. This Settlement Agreement shall become effective immediately following execution by all of the parties. 9. COUNTERPARTS. This Settlement Agreement may be executed in counterparts (but all counterparts, taken together, shall constitute only one agreement) and facsimile or electronic copies of signatures shall be treated as originals for all purposes. 10. REPRESENTATION REGARDING PRIOR READINGS. The City represents and warrants that neither it, nor its agents, representatives, or employees, are aware of any errors (misreads), skipped reads (unread meters), or falsified readings by Bermex as of the date of this Settlement Agreement other than those readings that • have been reported to Bermex as errors, skipped reads, or falsified readings and are the subject of the Dispute. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Page 3 of 5 EXECUTED on the date hereinafter indicated. BERM INC. THE MY OkFan WORTH Henry . Mello Fernando Costa President orie cr•-. 70/ � Assistant City Man ger Date: Date: / RECOMMENDED FOR APPROVAL Andrew T. Cronberg Acting Director, Water Depa Approved for form and legality: (ti4itsIt Christa R. Lopez -Reynolds Assistant City Attorney Attest: Mary Kayser` ` ecre. Page 4 of 5 0 OFFICIAL RECORC )Il [l it �_>>[! <<���,[_, t \RV tit d to 1111©L U L (l 9 V/ EXHIBIT "A" Page 5 of 5 STATE OF TEXAS COUNTIES OF `FAIIANT, DENTON9 PARK I{, l'AND WISE, FOU TH EXTENSION NSION AN FIRST AMENDMENT TO CITY SECRETARY CONTRACT NO. 41019 WITH BERMEX, INC FOR IP OFESSINAL SERVICES This Fourth Extension and First Amendment (the "Extension and Amendment") is entered into by and between the City of Fort Worth ("City "), a home -rule municipality in the State of Texas, acting through Fernando Costa, its duly authorized Assistant City Manager, and Bermex, Inc. ("Consultant"). W i EREAS, the City and Consultant entered into that certain agreement identified as City Secretary Contract No. 41019 for a term beginning October 1, 2010 and ending September 30, 2011 (the "Contract"); and WHEREAS, such Contract provided for five (5) consecutive one (1) year renewal options, provided all other conditions remained the same as detailed in the Contract; and WHEREAS, the parties have exercised the first three (3) renewal options and now wish to enter into a fourth optional renewal; and WHEREAS, Bermex and the City have entered into a Settlement and Release Agreement and have agreed to amend the Contract in accordance with the terms and conditions stated herein. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, and other good and valuable consideration, .the receipt and sufficiency of which are hereby acknowledged and confessed, the parties hereto agree as follows: I. Fourth Renewal option. The parties hereby exercise the fourth renewal option to the Contract, effective October 1, 2014 and expiring on September 30, 2015. II. t, Section 1: Scope of Services. Section 1 of the Contract shall be amended as follows: Consultant hereby agrees to provide the City with professional consulting services for the purpose of ensuring that monthly water meter readings are conducted accurately throughout the City. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Scope of Work (as amended below), more specifically describing the services to be provided hereunder. The parties agree to follow the procedures below when addressing errors (misreads), skipped reads (unread meters), and falsified reads identified as a result OFFICIAL RECORD MTV V SECRETARY 1 iT.rd R NI TX of Consultant's meter reading services. A. Exhibit A is amended to eliminate the assessment of penalties for Consultant's errors, skipped reads, and falsified reads under "Task 2 - Quality of work." Instead the Parties agree that liquidated damages shall be assessed against Consultant in the amount of five dollars ($5.00) for skipped reads, twenty-five dollars ($25.00) for errors, and fifty dollars ($50.00) for falsified reads because (1) the harm caused by the errors, skipped reads and falsified reads is incapable or difficult to estimate, and (2) the amount of liquidated damages called for is a reasonable forecast of just compensation. B. All errors, skipped reads and falsified reads must be identified by the City within forty-five (45) days. The City must verify the errors, skipped reads, and falsified reads by field re -reads, or the City and Consultant must mutually verify by viewing the previous month's data. C. The City shall complete a work order for each error skipped read, and falsified read and provide a copy of the completed work order to Consultant for its review within forty-eight (48) hours of completion of the required reread or mutual verification of the previous month's data. D. Consultant shall then have forty-eight (48) hours to review and challenge any completed work order provided to rt by the City. All disputes must be resolved within forty -eighty (48) hours of the City receiving the challenge. The parties shall resolve the dispute by a review of previous meter reading data or by a third reading of the meter, if deemed necessary by either of the parties If the review of the data and/or third read shows no error occurred, then the Consultant will not be charged the liquidated damage. If an error is verified by the review of data and/or the third read, then the Consultant will be charged the liquidated damage. E The City shall issue a daily skip read report to Consultant or when the meter reading cycle is complete and shall include a detailed description of how the City. obtained the read and determined the skip was made by Consultant. F. The City shall -issue a report daily or when a cycle is complete, whichever is completed first, through the Customer Information System to Consultant to include the cycle, the book, the sequence number, the reading that Consultant entered, the previous reading, the date, the time, the reader ID and indication if the reader failed an audit. G. The City shall assess liquidated damages, as described above and in Exhibit A, for errors skipped reads and falsified reads, as applicable, for which the City issued a completed work order to Consultant that was not challenged by Consultant, within the twenty-one (21) day cycle in which it was received, in order to timely prepare and issue the invoice. H. The Consultant shall not be subject to any fees, penalties, or liquidated damages for any errors, skipped reads, and falsified reads which are not identified to Consultant in writing and verified by an actual reread within forty-five (45) days after the date which the reading was received by the City. III. Section 3: Compensation. Section 3 of the Contract shall be amended to include the following paragraph to read as follows: For the fourth optional renewal period only, Consultant shall reduce the cost per meter by one cent ($0.01). The cost per meter shown on Exhibit B to the Contract shall now be forty-eight cents ($0.48) for this renewal period only. IV. Other Terms and Conditions. All other terms and conditions of the Contract remain in full force and effect, except that if there is a conflict between the Contract and this Extension and Amendment, this Extension and Amendment shall control. V. Counterparts. This Extension and Amendment may be executed in counterparts (but all counterparts, taken together, shall constitute only one agreement) and facsimile or electronic copies of signatures shall be treated as originals for all purposes. Executed this day of October, 2014. CITY OF FORT WORTH BERMEX, INC. Fernando Costa Assistant City Manager ATTEST: Mary Kayser City Secretary Henry ollo Pres ent RECOMMENDED FOR APPROVAL Andrew T. Cronberg Acting Director, Water Department APPROVED AS TO FORM AND LEGALITY: Christa R. Lopez -Reynolds Senior Assistant City Attorney