HomeMy WebLinkAboutContract 54754 CSC No.54754
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 situated in
portions of Tarrant, Parker, Denton, and Wise Counties, Texas, as executed by Dana Burghdoff, its duly
authorized Assistant City Manager, and NewGen Strategies & Solutions, LLC ("Consultant"), a Limited
Liability Corporation, as executed by Dave S. Yanke, its duly authorized Managing Director —
Environmental Practice, each individually referred to as a "party" and collectively referred to as the
"parties."
CONTRACT DOCUMENTS:
The Contract documents shall include the following:
1. This Agreement for Professional Services
2. Exhibit A—Scope of Services, Schedule and Compensation
All Exhibits 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 a Depreciation Study for Water Department based
on water and wastewater plant in service as of September 30, 2020. Attached hereto and incorporated for all
purposes incident to this Agreement is Exhibit "A," Scope of Services, more specifically describing the
services to be provided hereunder.
Consultant warrants that it will exercise reasonable skill, care and diligence in the perfonrrance of its
services and will carry out its responsibilities in accordance with customarily accepted professional practices
and applicable laws.
2. TF.Rm.
This Agreement shall commence upon the date of full execution ("Effective Date") and shall expire
March 31,2021, unless tenninated earlier or extended in accordance with the provisions of this Agreement or
agreed upon by written amendment to this Agreement by both parties.
3. COMPENSATION.
The City shall pay Consultant an amount not to exceed $98,000 in accordance with the provisions of
this Agreement and the Payment Schedule shown in Exhibit"A"which is incorporated for all purposes herein.
Consultant shall not perform any additional services for the City not specified by this Agreement unless the
City requests and both parties approve in writing the additional scope, schedule, and costs for such services.
Either party may seek a change order for a change in scope schedule and costs related thereto, which must be
agreed upon by both parties by a written amendment to this Agreement. The City shall not be liable for any
additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses
in writing. If there is any conflict between the terries of Exhibit "A" and this Section 3, this Section 3 shall
prevail,
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
4. TERMINATI N.
4.1. Written Notice.
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 tennination.
4.2 Non-appropriation of Funds.
In the event no funds or insufficient funds are appropriated 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 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 shall 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.
S.
Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any
existing 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 promptly to
make full disclosure to the City in writing upon its first knowledge of such conflict.Consultant, for itself and
its officers,agents and employees,further 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, except to the extent that such disclosure is required by applicable law or court order and then only
after prior notice to and consultation with 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 any way. Consultant shall notify the City promptly if the security or integrity of any City
information has been compromised or is believed to have been compromised.
6. RiGH1 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 at least five
(5)business days' 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, 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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The audit rights conferred by this section shall not permit the City to access records related to the
pricing of fixed-price or lump sun} amounts, the build-up of agreed rates or unit prices, or Consultant's
estimating records.
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 shal I 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.
Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint
enterprise between City and Consultant.
8. LIABILITY AND INDEMNIFICATION.
CONSULTANT SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS
CITY AND ITS OFFICERS,AGENTS AND EMPLOYEES FROM AND AGAINST ALL DAMAGES,
CLAIMS, LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE
ATTORNEY'S FEES AND EXPENSES, FOR PERSONAL INJURIES (INCLUDING DEATH) AND
THIRD-PARTY PROPERTY DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACT
OR OMISSION OF CONSULTANT, ITS OFFICERS, AGENTS, EMPLOYEES, OR
SUBCONTRACTORS IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT.THE
CONSULTANT SHALL NOT BE OBLIGATED OR LIABLE TO THE CITY FOR ANY CLAIM
ARISING IN CONNECTION WITH THIS AGREEMENT EXCEPT ITS OWN NEGLIGENCE THAT
IS THE FAULT OF THE CONSULTANT, AND/OR ITS AGENTS, EMPLOYEES, OR
SUBCONTRACTORS,OR OTHERS FOR WHOM CONSULTANT IS LEGALLY RESPONSIBLE.
NOTWITHSTANDING THE FOREGOING, CONSULTANT AGREES, TO THE FULLEST
EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS CITY AND ITS
OFFICERS, AGENTS AND EMPLOYEES AGAINST COSTS, DAMAGES, OR LOSSES,
INCLUDING REASONABLE ATTORNEYS'FEES AND EXPENSES,RESULTING FROM CLAIMS
BY THIRD PARTIES FOR PERSONAL INJURIES (INCLUDING DEATH) OR PROPERTY
DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF
CONSULTANT, ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS IN THE
PERFORMANCE OF PROFESSIONAL DESIGN AND ENGINEERING SERVICES UNDER THIS
AGREEMENT. CONSULTANT SHALL NOT BE OBLIGATED TO DEFEND OR INDEMNIFY
CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES FOR THEIR RESPECTIVE
NEGLIGENCE OR WILLFUL MISCONDUCT.
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, and Consultant shall have no further liability
or obligations under the assigned portion of the Agreement, If the City grants consent to a subcontract, the
Consultant shall require such subcontractor to execute a written agreement with the Consultant referencing this
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Agreement and requiring subcontractor to be bound by duties and obligations substantially similar to those of
the Consultant under this Agreement as such duties and obligations may apply to the subcontractor's scope of
services. The Consultant shall provide the City with a fully executed copy of any such subcontract upon
request,with any financial and proprietary information redacted.
10. INSURANCE.
ANC E.
Consultant shall provide the City with certificate(s)of insurance documenting policies ofthe following
coverage limits that are to be in effect prior to commencement of any services pursuant to this Agreement:
10.1 Covera eg_and Limits
(a) Commercial General Liability
$1,000,000 Each Occurrence
$2,000,000 Aggregate
(b) Automobile Liability
$1,000,000 Each accident on a combined single limit basis or
$250,000 Bodily injury per person
$500,000 Bod i ly inj ury per occu rrence
$100,000 Property damage
Coverage shall be on any vehicle used by the Consultant, its employees, agents,
representatives in the course of the providing services under this Agreement. "Any
vehicle"shall be any vehicle owned,hired and non-owned.
(c) Worker's Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease-per each employee
$500,000 Disease-policy limit
This coverage may be written as follows:
Workers' Compensation and Employers' Liability coverage with limits consistent with
statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308— 1.01 et seq.,
Tex. Rev. Civ. Stat.) and policy limits for Employers' Liability of $100,000 each
accidentloccurrence,$500,000 bodily injury disease policy limit and$100,000 per disease per
employee.
(d) Professional Liability(Errors &Omissions)
$1,000,000 Each Claim Limit
$1,000,000 Aggregate Limit
Professional Liability coverage may be provided through an endorsement to the
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 claims-made, and maintained for the duration of the contractual
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agreement and for two(2)years following completion of services provided.An annual
certificate of insurance shall be submitted to the City to evidence coverage.
10.2 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 services
pursuant to this Agreement. All policies except Workers' Compensation and Professional
Liability shall be endorsed to name the City as an additional insured thereon, as its interests
may appear.All policies except Professional Liability and Employer's Liability 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.A minimum of thirty(30)days' notice of cancellation
of coverage shall be provided to the City.Ten(10)days'notice shall be acceptable in the event
of non-payment of premium. Such tenns shall be endorsed onto Consultant's insurance
policies. 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.
10.3 Waiver of Subrogation for PropM Insurance.
The City and Consultant waive all rights against each other and their officers,officials,
directors, agents, or employees for damage covered by builder's risk insurance during and
after the completion of Consultant's services. If the services result in a construction phase
related to the project, a provision similar to this shall be incorporated into all construction
contracts entered into by the City,and all construction contractors shall be required to provide
waivers of subrogation in favor of the City and Consultant for damage or liability covered by
any construction contractor's policy of property insurance, including builder's risk provided
by such contractor, if applicable.
11. CQUE11 LANCE WI1U LAWS,QEDINAJdT4-ES.HULLS AND BLUILL,AITUNN.S.
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 promptly desist from and correct the violation.
12. -
Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest,
as pat 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.
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13. LATICES.
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:
To The CITY: To CONSULTANT:
City of Fort Worth NewGen Strategies & Solutions, LLC
Attn: Chris Harder, Water Department Director Attn: Dave Yanke, Managing Director
200 Texas Street 8140 N Mopac Expressway, Suite 1-240
Fort Worth TX 761 02-63 1 1 Austin,TX 78759
Facsimile:(817)392-5020 Facsimile:(512)649-1254
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 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/VF.N R.
This Agreement shall be 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. SEVERABILTTY.
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 DIAJEURE.
The City and Consultant shall exercise their best efforts to meet their respective duties and obligations
as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to
force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to,
compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires,
strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority,
transportation problems and/or any other similar causes.
19. $ AE DING$NQJ CQNTROLLING.
Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a
part of this Agreement.
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20. RE'VIFW OF_COUNSEL.
The parties aelmowledge that each party and its counsel have reviewed and revised this Agreement
and that the normal rules ofconstruction 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.
21. AMENDMENTS /M0121JEICAIMN5,(,MENSIONS.
No extension, modification 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.
22. ENTIRETY OF AGRF.F.MF.NT.
This Agreement contains all of the covenants, statements, representations and promises agreed to by
the parties. To the extent of any conflict,this Agreement supersedes the terms,conditions,and representations
set forth in the City's Request for Proposals,Consultant's Proposal and revised cost. No agent of either party
has authority to make, and the parties shall not be bound by, nor liable for, any covenant, statement,
representation or promise not set forth hercin. The parties may amend this Agreement only by a written
amendment executed by both parties.
23. SFGNATIZEE 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. The other party is fully entitled to rely on this
warranty and representation in entering into this Agreement.
24. PROHIBITION ON CONTRACTING WITH COMPANIES THAT 36YCOTT ISRAEL
Contractor acknowledges that in accordance with Chapter 2270 of the Texas Government Code,
the City is prohibited from entering into a contract with a company for goods or services unless the contract
contains a written verification from the company that it:(1)does not boycott Israel; and(2)will not boycott
Israel during the term of the contract. The terms"boycott Israel" and"company" shall have the meanings
ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract,
Contractor certifies that Contractor's signature provides written verification to the City that
Contractor:(1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples this OCt27,2020 day
Of Oct 27,2020 2020.
CITY OF FORT WORTH RECCOMENDED BY:
Dana ahWL4af± ajffjd*hL t4wder
Dana Burghdoff(Oct 27,202018:48CDT) Christopher Harder(Oct 27,202018:41CDT)
Dana Burghdoff Chris Harder,P.E.
Assistant City Manager Fort Worth Water Director
7 OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
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ATTEST: eF F°....46
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Mary Kayser dp nF6p5gp
City Secretary
Date: Oct 29, 2020
APPROVED AS TO FORM AND LEGALITY:
CI�Is�a�Lode��2y�ola'1'
Christa R.Lopez-Reynold (Od 2T,2020 ff.08 C
Christa R. Lopez-Reynolds
Sr.Assistant City Attorney
No M&C Required
Contract Compliance Manager:
By signing 1 acknowledge that I am the person responsible for the monitoring and administration of this contract,
including ensuring all performance and reporting requirements.
Name of Employee
Administrative Services Manager
Title
NEWGEN STRATEGIES& S UTIONS,LLC
Dave S.Yanke
Managing Director—Environ tal Practice
Date:
WITNESS:
By; -
Print:
8 OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
EXHIBIT A
Scope of Services,Schedule and Compensation
Scope of Services
NewGen will prepare a Depreciation Study for the Department based on water and wastewater plant in
service as of September 30,2020. Based on discussions with you,the scope of the Depreciation study will
not include consideration of net saivage since the Department does not separately track net salvage
(which is often zero) related to plant retirements.
NewGen will perform the following tasks as part of the Depreciation Study;
1. Conduct a kick-off meeting with key Department staff using Teams or similar online platform to
review the proposed work plan and methodology for the Study. Prior to the kick-off meeting,
NewGen will submit a data request to the Department to obtain data needed to perform the
Study; questions about the data request will be discussed at the kick-off meeting.
2. Perform a 1-day site visit to observe a representative sample of above-ground and accessible
water and wastewater plant facilities and interview Department staff related to plant operations,
type of plant installed,and factors affecting plant service lives. Grant Rabon, Executive Consultant
in NewGen's Austin office will perform the site visit. Additional interviews with Department staff
may be scheduled after the site visit, if needed.
3. Develop the depreciation database using historical plant accounting data provided by the
Department in electronic format; data requested from the Department will include annual
additions, retirements, transfers and adjustments, and plant balances by depreciable plant
account and year.
4. Perform statistical life analyses to estimate the average service life and survivor curve (if
applicable) by depreciable plant account. Develop recommended average service lives and
survivor curves based on results of statistical life analyses, information obtained from the site
visits and interviews with Department staff, industry depreciation statistics, and NewGen's
knowledge and experience performing depreciation studies. For plant accounts where there is
insufficient retirement experience or data, NewGen will rely on empirical and industry data to
develop recommended average services lives and survivor curves for the Department.
5. Prepare detailed account narratives describing the basis for the recommended average service
lives and survivor curves(if applicable)for each depreciable plant account. The account narratives
will become an integral part of the Depreciation Study, providing support for the recommended
depreciation parameters and resulting accrual rates.
6. Calculate recommended annual depreciation accrual rates based on the recommended
depreciation parameters developed in the preceding tasks. Unless instructed otherwise by the
Department, NewGen proposes to calculate the annual depreciation rates using straight-line
method and whole life technique.
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EXHIBIT A
Scope of Services,Schedule and Compensation
7. Calculate the theoretical reserve based on the recommended depreciation parameters developed
in preceding tasks. Prepare tables comparing the theoretical reserve vs.actual book depreciation
reserve by plant account, and where there are differences, discuss with the Department options
to better align the book reserve with the theoretical reserve.
8. Assess the economic and rate impacts of any recommended changes to depreciation rates and
identify how these impacts might affect annual depreciation expense for wholesale customers
and Department financial statements. In accordance with the utility basis of ratemaking used to
determine wholesale rates, net contributed assets will be removed from the asset base prior to
the determination of revised depreciation rates for wholesale customers. 1 n addition,we will rely
on wholesale allocation percentages developed in the Department's July 2020 Wholesale Water
and Wastewater Cost of Service and Rate Study recently completed by NewGen.
9. Results and Reporting: NewGen will prepare a report with supporting exhibits summarizing the
methodology used and analyses performed to develop the recommended depreciation rates. The
report will include detailed account narratives for each plant account describing the basis for the
recommended depreciation parameters and resulting annual depreciation accrual rates. NewGen
will provide the following deliverables:
• Draft Study report and exhibits for Department review
• Final Study report and exhibits
• Electronic copy of workpapers
10. Optional Task: If requested by the Department, NewGen will present and support the results of
the depreciation study at an in-person meeting to Department managers. Note: If the
presentation to the Department managers is made by webinar(i.e., involving no travel), NewGen
will do this at no additional cost.
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EXHIBIT A
Scope of Semites, Schedule and Compensation
Time Schedule
NewGen estimates it wili take 3-4 months to perform the Depreciation Study. The time schedule below
shows the timeframe for performing the tasks in the scope of services.
Water and Wastewater Depreciation Study
Proposed Project Timeline
Week
Project Award
Project Management
Task 1-data Request and Kick-off Meeting .
Task 2-Site Visit and Interviews .
Task 3-Depreciation Database -
i
Task 4-Life Analysis
Task 5-Account Narratives
t
Task G-Accrual Rate Calculations
i
Task 7-Theoretical Reserve
Task 8-Impact on Wholesale Depreciation Expense
Task 5-Results and Reporting
Task 113-In-Person Presentation to Board(Optional) e
t 3
Deliverables Fort Worth Water Department Data Collection and Report Review
Week 1-Data Request and Kick-off Meeting
Week 3-Site Visit and Interviews
Week 13-Draft Depreciation Study Report
Week 16-Final Depreciation Study Report
Week 16-in-Person Presentation to Department staff{Optional)
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EXHIBIT A
Scope of Services, Schedule and Compensation
Pricing
NewGen proposes to provide the services described above based on actual hours of service furnished
multiplied by NewGen's current billing rates at the time service is provided, plus reasonable out-of-pocket
expenses directly charged to the project. NewGen's current hourly billing rates are shown in the table
below.
The total fixed, not-to-exceed cost to perform Tasks 1 through 9 in the scope of services described above
is equal to $95,000, including expenses. If less time is required to perform the Study (e.g., if less time is
needed to develop the depreciation database), NewGen will invoice the Department the lesser amount.
The price for optional Task 10, for NewGen to present the results of the Depreciation Study in-person to
the Department is$3,000, including expenses. If the presentation to the Department is made by webinar
(i.e., involving no travel), NewGen will do this at no additional cost.
NewGen Strategies&Solutions
2020 Billing Rates
Position T. Hourly Billing Rate
PresidenVCEO $345
Managing Director(Energy Practice, Environmental Practice) $300
Director I Vice President I Executive Consultant $215-$345
Senior Consultant $185-$215
Staff Consultant $130-$185
Analyst $125-$130
Administrative Assistant $100
Note:Billing rates are subject to change based on annual reviews and salary increases.
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