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HomeMy WebLinkAboutContract 32470 CITY SECRETARY CONTRACT NO. �7 STATE OF TE1XAS ) KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT ) THIS AGREEMENT is made and executed by and between the City of Fort Worth, Texas, a municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas, hereinafter called the "City", acting herein by and through Marc Ott, its duly authorized Assistant City Manager, and Black &Veatch Corporation, hereinafter called the "Consultant." WITNESSETH: WHEREAS, the City wishes to engage the Consultant's assistance with retail and wholesale water and wastewater rate studies; and WHEREAS, the Consultant is willing to provide assistance related to such retail and wholesale water and wastewater rate studies for the City; and WHEREAS, the City desires to engage the Consultant to render certain services in connection therewith and the Consultant is willing to provide such services; NOW,THEREFORE, that for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby covenant and agree as follows: SECTION 1. Services of the Consultant: The City hereby contracts with the Consultant as an independent consultant, and the Consultant hereby agrees to perform the professional services set out herein in accordance with standard utility rate-setting practices and policies. SECTION 2. Scope of Services: The Consultant shall provide assistance as necessary in the development of retail and wholesale water and wastewater studies for fiscal year beginning October 1, 2005. The scope of services for this Agreement shall consist of miscellaneous rate and financial consulting to include: assistance with financial and rate modeling on retail and wholesale issues relevant to the water and wastewater systems, rate design evaluation for water/wastewater customer classes, training assistance for the City staff and assistance with financial modeling development of water and wastewater systems. SECTION 3. Comlensation: As compensation for the services to be provided and in accordance with the terms of this Agreement, the City agrees to pay the Consultant on the basis of the hourly rates set forth in this section an amount not to exceed TWENTY-FOUR THOUSAND NINE HUNDRED DOLLARS ($24,900.00). This amount shall constitute full and complete compensation for the Consultant's services under this Agreement, including all expenditures made and expenses. incurred by the Consultant in performing such services, and which amount is hereinafter referred to as the "Basic Fee." The Basic Fee shall be paid to the Consultant in monthly installments upon submission of statements, together with supporting data indicating the progress of the work and services Black&Veatch Consultant Agreement August 2005 Page 1 of 7 performed for the month immediately preceding. Invoices will be due upon receipt and payable within 30 days, subject to certification by the Director of the Water Department, or his authorized representative, that such work has been performed and the expenses have been incurred. Such certification shall not be unreasonably withheld or delayed. Compensation for the services rendered by the Consultant, not to exceed $24,900.00, shall be based upon the following hourly rates for hours billed: Black &Veatch Job Description Hourly Billing Rates ($/hr) Clerical/Administrative Support 75.00 Associate 100.00 Senior Associate 135.00 Consultant 160.00 Senior Consultant 190.00 Principal Consultant 235.00 Director 270.00 Vice President 320.00 Reimbursable expenses are part of the Basic Fee and include, but are not necessarily limited to subcontractor expenses, travel, report production and other out-of-pocket expenses,which shall be paid based upon actual cost, supported by such documentation as the City may reasonably request. SECTION 4. Standard of Care: Consultant warrants that it will perform the services contemplated in this Agreement in accordance with the standards of care and diligence normally practiced by recognized consulting firms in performing services of a similar nature. If, during the six month period following the earlier of completion or termination of this Agreement, it is shown there is an error in the Consultant's services, caused solely by Consultant's failure to meet such standards, and the City has promptly notified Consultant in writing of any such error with that period, Consultant shall perform at its sole cost and expense such corrective consulting services within the original Scope of Services as may be necessary to remedy such error. EXCEPT AS PROVIDED IN THIS SECTION, CONSULTANT MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED,RELATING TO CONSULTANT'S SERVICES AND CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW INCLUDING WARRANTIES OF Black& Veatch Consultant Agreement August 2005 Page 2 of 7 MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SECTION 5. Insurance: The Consultant shall maintain at its own expense (1) commercial general liability insurance with an aggregate limit of$1,000,000, (2) professional liability insurance for errors and omissions with an aggregate limit of $1,000,000, and (3) workers' compensation insurance, which insurance shall provide coverage for liabilities or claims for damages resulting solely from services, performed or undertaken by the Consultant hereunder. Certificates of Insurance shall be furnished to the City upon the request of the City. SECTION 6. Establishment and Maintenance of Records: Records shall be maintained by the Consultant at its place of business with respect to all matters covered by this Agreement. Such records shall be maintained for a period of three (3) years after receipt of final payment under this Agreement. SECTION 7. Audits and Inspections: The Consultant agrees that the City shall, until the expiration of three (3) years after the final payment under this Agreement have access to and the right to examine any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to direct cost and expenses under to this Agreement. The 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. The Consultant further agrees to include in all its subcontracts hereunder a provisions to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after the final payment and directly pertinent books, documents, papers and records of such subcontractor, involving transactions 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 article, and shall give subcontractor reasonable advance notice of intended audits. SECTION 8. Indemnity and Limitation of Liability: The Consultant agrees to defend, indemnify and hold harmless the City and its officials, agents and employees from and against any and all third party claims, actions, suits or proceedings of any kind brought against said parties to the extent caused by the negligent act, error, or omission of the Consultant or anyone for whom it is legally liable in the performance of services hereunder. The Consultant is not required hereunder to defend,indemnify and hold harmless the City of Fort Worth and its officials, agents and employees from liability resulting from the negligence or wrongful acts of the City or any third party. For the purposes of this section, the term "third party" does not mean officers, subconsultants, the agents or employees of the Consultant.The indemnity required hereunder shall not be limited by reason of the specification of any particular insurance coverage in this Agreement. The Consultant shall have the right to defend against any and all such claims, actions, suits or proceedings with counsel of its own choosing and shall have the right to settle and or compromise such matter as the Consultant deems appropriate. The City shall provide Consultant with written Black&Veatch Consultant Agreement August 2005 Page 3 of 7 notice of such claims within 10 business days after receipt of same by the City. The City agrees that it will cooperate with the Consultant in the defense of any such matter including, but not limited to, providing necessary documents and personnel to testify. To the extent allowed by law, the total aggregate liability of Consultant arising out of the performance or breach of this Agreement shall not exceed an amount equal to four times the total compensation paid to Consultant under this Agreement. Not withstanding any other provisions of this Agreement, the Consultant shall have no liability to the City for contingent, consequential or other indirect damages including,without limitation, damages for loss of use or revenue; operating costs or facility downtime; or other similar interruption losses, however, the same may be caused. The limitations and exclusions of liability set forth in this subsection shall apply regardless of the fault, breach of contract, tort (including the concurrent or sole exclusive negligence), strict liability or otherwise of the Consultant,its employees or subconsultants. SECTION 9. Compliance with Laws: In providing the scope of services outlined herein, the Consultant shall comply with all applicable laws, ordinances, and codes of the Federal, State and local governments. SECTION 10. Non-Discrimination: The Consultant agrees that its employees and applicants for employment and those of any labor organization, subconsultants, or employment agency in either furnishing or referring employee applicants to the undersigned are not discriminated against as prohibited by the terms of City Ordinance No. 7278 as amended. SECTION 11. Personnel: A. The Consultant represents that it has, or will secure at its own expense, all personnel required in performing all of the services required under this Agreement. Such personnel shall not be employees of or have any contractual relationships with the City. B. All the services required hereunder will be performed by the Consultant or under its supervision and all personnel engaged in the work shall be qualified and shall be authorized or permitted under state and local law to perform such services. SECTION 12. Assignability: Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. SECTION 13. Termination for Cause. If through any cause, unless it is caused by another party or due to an act beyond the control of the Consultant, the Consultant shall fail to materially fulfill in a timely and proper manner its obligations under this Agreement or if the Consultant shall materially violate any of the covenants, agreements or stipulations of this Agreement, the City shall thereupon have the right to terminate this Agreement by giving written notice to the Consultant of such termination and specifying the effective date thereof, with such effective date not to occur earlier than seven days after the notice date. The Consultant shall have seven Black& Veatch Consultant Agreement August 2005 Page 4 of 7 calendar days to cure such alleged defaults. Unless such alleged defaults are cured and accepted by the City within this seven-day period, the Consultant shall immediately cease all work. In such event, all finished or unfinished documents, data, maps, studies, surveys, drawings, models, photographs and reports prepared by the Consultant under this Agreement shall, at the option of the City, become its property, and the Consultant shall be entitled to receive compensation in accordance with the terms of this contract for all work performed in accordance with the terms of this contract up to the date of termination. Performance shall be defined in accordance with the terms of this contract and all attachments. Compensation is to include fees and expenses incurred by the Consultant as defined by this Agreement. Nothing herein shall constitute a waiver of any right, at law and at equity, which the City may have if the Consultant is in default, including the right to bring legal actions for damages or force the specific performance of this contract. The Consultant' s work papers are specifically excluded from the list of documents which become the City' s property under this Section. However, the City does have the right to make copies, at its own expense, of the Consultant' s work papers. SECTION 14. Termination of Convenience of City: The City may terminate this Agreement for its convenience at any time by giving at least ten (10) days' notice in writing to the Consultant. In the event of termination pursuant to this paragraph, Consultant shall be entitled to receive payment for all work completed or in progress, and for costs reasonably incurred to close out its project services. Compensation is to include fees, expenses, and liabilities to subconsultants or other third parties. Consultant will make reasonable attempts to cancel all such liabilities in order to mitigate the cost to the City. If this Agreement is terminated due to the fault of the Consultant, Section 15 hereof relative to termination shall apply. SECTION 15. Severability: If any portion of this agreement is held to be void, invalid, or otherwise unenforceable, in whole or part, the remaining portions of this agreement shall remain in effect. SECTION 16. Venue: If any action,whether real or asserted, at law or in equity, arises on the basis of any provision 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. This Agreement shall be construed in accordance with the laws of the State of Texas. SECTION 17. Agreement Amendment: This instrument represents the entire understanding between the City and the Consultant in respect to the Project, supersedes any and all prior written or oral negotiations of agreements between the parties, and may only be modified in writing signed by both parties. SECTION 18. Captions: The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms and conditions of the Agreement. SECTION 19. Conflicts: This Agreement is the sole agreement between the City and the Consultant and any and all other prior agreements,whether oral or written, are merged into this Agreement and of no further force or effect. SECTION 20. Ownership of Documents: At all times,each party shall retain all of its rights in its drawing details, designs, specifications,databases,computer software,copyrights, trade and service Black& Veatch Consultant Agreement August 2005 Page 5 of 7 marks, patents, trade secrets,and any other proprietary property. SECTION 21. Notices: All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail,return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Marc Ott,Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth,T1 76102 Copies to: David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth,TXi 76102 Frank Crumb,Acting Director Water Department City of Fort Worth 1000 Throckmorton Fort Worth,T1 76102 2. CONSULTANT: Black&Veatch Corp. William C. Cole, Vice President 11401 Lamar Overland Park,KS 66211 Executed this day of , 2005. Approval Recommended: CITY OF FORT WORTH n Y Black& Veatch Consultant Agreement August 2005 Page 6 of 7 Frank Crumb, Director Marc A. Ott Water Department ssistant City M r i ATTEST: Approved Form d Legality: fly\ 'f c Marty Hendrix Assistant Axforney City Secretary NO M&C REQUIRED CONSULTANT Black & Veatch Corporation By: Contract Authorization William C. Cole Vice President Black& Veatch Consultant Agreement August 2005 Page 7 of 7