HomeMy WebLinkAboutContract 59408CSC No. 59408
FORT WORTH
CITY OF FORT WORTH
PURCHASE AGREEMENT BASED UPON AN INTERLOCALAGREEMENT BETWEEN THE
CITY OF FORT WORTH AND GRADIENT SOLUTIONS CORPORATION
WHEREAS Section 271.102 of the Texas Local Government Code allows Local Governments to pursue
mutually beneficial and cooperative purchasing programs; and
WHEREAS, pursuant to Chapter 791 of the Texas Government Code and Subchapter F, Chapter 271 of
the Texas Local Government Code, the City of Fort Worth (City), a Texas home -rule municipality and
the North Central Texas Council of Governments have entered into an Interlocal Cooperative Purchasing
Agreement on November 17, 2016 which provides that when the one of the Local Government Entities
enters into a contract with a Vendor for goods and services, the other Local Government is able to enter
into a Purchase Agreement with the Vendor under the same terms and conditions offered to the Original
Local Government Entity so long as the Vendor is agreeable. Copy Attached as Exhibit A;
WHEREAS Gradient Solutions Corporation (Vendor) responded to BID NCT Request for Proposal (RFP)
2021-057 issued by North Central Texas Council of Governments agreeing to allow other Local
Governmental Entities to enter into a Purchase Agreement with Vendor under the same terms and
conditions as those contained in the BID. (Copy attached as Exhibit B);
NOW THEREFORE, City and Vendor each of which will individually be referred to as a "Party" and
collectively as the "Parties entered into this Purchase Agreement by and between Gradient Solutions
Corporation ("Vendor") and the City of Fort Worth, ("City"),
The Parties agree that any references to the North Central Texas Council of Governments in Exhibit B
shall be construed as the City of Fort Worth for the purposes of this Agreement and all rights, benefits,
duties, and obligations shall inure to the City as if the contract in Exhibit B were originally executed
between the City and Vendor. This shall specifically include any requirements imposed on Vendor by
virtue of the North Central Texas Council of Governments Bid No. 2021-057 included in Exhibit B.
The Agreement includes the following documents which shall be construed in the order of precedence in
which they are listed. If any provisions of the attached conflict with the terms herein, are prohibited by
applicable law, conflict with any applicable rule, regulation or ordinance of City, the terms in this Purchase
Agreement shall control.:
1. Exhibit A — Agreement between the City of Fort Worth and the North Central Texas
Council of Governments;
2. Exhibit B — Contract between the North Central Texas Council of Governments and
Vendor for Risk and Compliance Advisory Services identified as Bid No. 2021-057;
3. Exhibit C — Vendor's Quote, Pricing, Scope of Services or Purchase Order;
4. Exhibit D — Conflict of Interest Questionnaire.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Exhibits A, B, C and D which are attached hereto and incorporated herein, are made a part of this
Agreement for all purposes. Vendor agrees to provide City with the services and goods included in Exhibit
B pursuant to the terms and conditions of this Cooperative Purchase Agreement, including all exhibits
thereto. In the event of a conflict between Exhibit B and this Agreement or Exhibit A, then this Agreement
and Exhibit A shall control.
City shall pay Vendor in accordance with the fee schedule in Exhibit C and in accordance with the
provisions of this Agreement. Total payment made under this Agreement for the first year by City shall
not exceed Two Hundred Eighty -Five Thousand Dollars ($285,000.00). Vendor shall not provide any
additional items or services or bill for expenses incurred for City not specified by this Agreement unless
City requests and approves in writing the additional costs for such services. City shall not be liable for any
additional expenses of Vendor not specified by this Agreement unless City first approves such expenses
in writing.
The term of this Agreement is effective beginning on the date signed by the Assistant City
Manager below ("Effective Date") and expires on September 30, 2023 in line with cooperative contract.
Upon the expiration of this Term, the Agreement shall renew automatically under the same terms and
conditions for up to three (3) one-year renewal periods (November 1 to September 30) unless City or
Contractor provides the other party with notice of non -renewal at least 60 days before the expiration of
the Initial Term or renewal period. However, if funds are not appropriated, the City may cancel the
Agreement 30 calendar days after providing written notification to the Contractor.
Vendor agrees that 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 documents and records of Vendor
involving transactions relating to this Agreement. Vendor agrees that City shall have access during normal
working hours to all necessary Vendor facilities subject to Vendor's reasonable rules and regulations while
at Vendor's facilities, and shall be provided adequate and appropriate work space in order to conduct
audits in compliance with the provisions of this section. City shall give Vendor reasonable advance notice
of intended audits, and all such audits shall be conducted on regular business days during Vendor's regular
business hours in a manner that will not unreasonably interfere with Vendor's operations at its facilities.
City's auditors shall present proper credentials to the manager of Vendor's facility at the time that they
are admitted to such.
This Agreement shall be construed 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.
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 CITY:
City of Fort Worth
Attn: David Cooke, City Manager
200 Texas Street
To VENDOR:
Gradient Solutions Corporation
Calvin Webb II, President and CEO
Fort Worth, TX 76102-6314 Address:
Facsimile: (817) 392-8654 2807 Carrington Drive
Mansfield, TX 76063
With copy to Fort Worth City Attorney's Office at
same address Facsimile: N/A
[SIGNATURES FOLLOW]
The undersigned represents and warrants that he or she has the power and authority to execute this
Agreement and bind the respective Vendor.
CITY OF FORT WO TH:
NamelI
Y: A! Cooke
Titl ity Manager
Date: 51�/ZD L3
APPROVAL RECO NDED:
By. Regfi Zeno A1ay15,202309:55CDT)
Name: Reginald Zeno
Title: Chief Financial Services Officer
4F FORT �ad
ATTEST:'���
�o
,ao o=o
By: (J
Name: Jannette Goodall
Title: City Secretary
VENDOR:
Gradient Solutions Corporation
46, 2I4i
By: CA,in E. Wabb II (May 15, 2023 09:06 CDT)
Name: Calvin Webb II
Title: President and CEO
Date: May 15, 2023
CONTRACT CO LIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all
performance and reporting requirements.
By: John Samlord(May 15,202309:52 CDT)
Name: John Samford
Title: Assistant Finance Director
APPROVED AS TO FORM AND LEGALITY:
By: /
Name: Taylor Paris
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: 23-0363
ATTEST:
By. Owin E Webb III (May 15, 2023 09:41 CDT)
Name: Calvin E Webb III
Title: Managing Director
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Exhibit A
FORTWORTH
MEMORANDUM
DATE: November 15, 2016
TO: Aaron Bovos, Chief Financial Office
Will Trevino, Assistant City Attorney
Susan Alanis, Assistant City Manager
Mary J. Kayser, City Secretary
FROM: Jack Dale, Purchasing Manager
CC: Laurena Hamilton, Sr. Account Technician
SUBJECT: Cooperative Purchasing Agreement with the North Central Texas Council of Governments
The attached contract for a cooperative purchasing agreement with the North Central Texas Council of
Governments at no cost to the City is forwarded for your review and approval.
The North Central Texas Council of Governments has requested that the City of Fort Worth (City) and the
North Central Texas Council of Governments enter into a cooperative purchasing agreement.
Cooperative purchasing agreements such as this are authorized under Section 271.102 of the Texas Local
Government Code.
This interlocal agreement will allow the North Central Texas Council of Governments to utilize City
contracts that may have value for the North Central Texas Council of Governments. This interlocal
agreement will also allow the City to utilize the North Central Texas Council of Governments bids or
contracts, should any such contracts present good value and purchasing opportunities to the City.
The Fort Worth City Council granted the City Manager the authority to execute cooperative purchasing
agreements with other governmental entities on January 15, 2008 (M&C P-10710, copy attached). This is
the most recent M&C regarding the execution of interlocal agreements with other governmental entities.
Since the agreement has no cost associated with it, no further City Council approval or MBE participation
is required.
Once completed, please contact Laurena Hamilton, Sr. Account Technician, at extension 8321, to pick up
the executed documents. Should you have any additional questions, please let me know.
City of Fort Worth & North Central Texas Council of Governments
Cooperative Purchasing Agreement
FORT WORTH CITY SECRETARY
CONTRACT NO.
COOPERATIVE PURCHASING AGREEMENT
This Cooperative Purchasing Agreement ("Agreement") is made and entered into as of the
date written below between the North Central Texas Council of Governments (NCTCOG)
and the City of Fort Worth, Texas ("Fort Worth").
WHEREAS, both the North Central Texas Council of Governments and Fort Worth have
each determined a need for a cooperative agreement to purchase like goods and services to
avoid duplicate procurement efforts and obtain the benefits of volume purchasing; and
WHEREAS, the North Central Texas Council of Governments and Fort Worth are
authorized by Section 271.102 of the Local Government Code to pursue mutually
beneficial and cooperative purchasing programs.
NOW, THEREFORE, for and in consideration of the mutual obligations and benefits
contained herein, the North Central Texas Council of Governments and Fort Worth agree
as follows:
SECTION 1. The purpose of this Agreement is to provide the North Central Texas
Council of Governments and Fort Worth with additional purchasing options by satisfying
the provisions of Section 271.102 of the Local Government Code.
SECTION 2. The parties agree that each of the parties shall respectively designate a
person to act under the direction of, and on behalf of, the designating party (the "Designated
Representative").
SECTION 3. At the request of the other party, a party that enters into a contract with a
vendor for goods or services (the "First Purchasing Party") shall attempt to obtain the
vendor's agreement to offer those goods and services to the other party (the "Second
Purchasing Party") for the same price and on the same terms and conditions as have been
offered to the First Purchasing Party. If the vendor so agrees, and if the Second Purchasing
Party is agreeable to such terms and conditions, the Second Purchasing Party may enter
into its own separate contract with the vendor for the purchase of such goods or services.
SECTION 4. NCTCOG administers the North Texas SHARE cooperative purchasing
program for the benefit of public sector entities primarily in the North Central Texas region.
This Agreement authorizes the City of Fort Worth to participate in North Texas SHARE.
This agreement also authorizes NCTCOG to serve as a coordinating agent to administer
the use of eligible City of Fort Worth contracts to other participants of the North Texas
SHARE program to the extent that the City of Fort Worth's solicitation documents contain
such coordinating agent authorization language.
Page 1 of 3
City of Fort Worth & North Central Texas Council of Governments
Cooperative Purchasing Agreement
SECTION 5. Unless otherwise agreed between the Designated Representatives,
payments for a purchase made by the Second Purchasing Party shall be paid directly to the
vendor and not to the First Purchasing Party. The Second Purchasing Party shall have the
responsibility of determining whether the vendor has complied with any provisions in its
contract with the vendor, including but not limited to those relating to the quality of items
and terms of delivery, and shall be responsible for enforcement of its contract against the
vendor, including all cost of enforcement.
SECTION 6. This Agreement will be subject to all applicable federal, state and local
laws, ordinances, rules and regulations.
SECTION 7. This Agreement may be terminated by either party, without cause or
penalty, upon not less than thirty days written notice to the other party.
SECTION 8. The parties acknowledge that each party and, if it so chooses, its counsel
have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party must not be
employed in the interpretation of this Agreement or any amendments or exhibits hereto.
SECTION 9. 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 10. If any term or provision of this Agreement is held to be illegal, invalid
or unenforceable, the legality, validity or enforceability of the remaining terms or
provisions of this Agreement shall not be affected thereby, and in lieu of each such illegal,
invalid or unenforceable term or provision, the parties shall endeavor to agree to a legal,
valid or enforceable term or provision as similar as possible to the term or provision
declared illegal, invalid or unenforceable.
SECTION 11. Execution of this Agreement does not obligate The North Central Texas
Council of Governments, Texas or Fort Worth to make any purchase, to pay any
membership fee or to otherwise or in any manner incur any cost or obligation.
SECTION 12. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which shall constitute but one and the same
instrument.
SECTION 13. The undersigned officers and/or agents are properly authorized to
execute this Agreement on behalf of the parties hereto and each party hereby certifies to
the other that any necessary actions extending such authority have been duly passed and
are now in full force and effect.
Page 2 of 3
City of Fort Worth & North Central Texas Council of Governments
Cooperative Purchasing Agreement
SECTION 14. 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, to the respective city representative set out below, or his/her designee.
EXECUTED this day of a"��2016.
CITY OF FORT WORTH NORTH CENTRAL TEXAS COUNCIL
OF GOVERNMENTS
1000 Throckmorton Street 616 Six Flags Drive
Fort Worth, Texas 76102 Arlington, Texas 76011
By: By: i
usa Alanis Monte Mercer
Title: Assistant Citv Manager
APPROVED AS TO
FORM AND LEGALITY:
Assistant City Attorney
M&C P-10710. January 15. 2008
Contract Authorization
Mary J. Kayger,Rit�,Secret q
A.
Date
Recommen ed By:kAS
Aaron Bovos, Director of Finance/CFO
Title: Deputy Executive Director
(Mlew
Agency ttorney
N/A
Contract Authorization
N/A
Page 3 of 3
North Central Texas Council Of Governments
November 8, 2016
City of Fort Worth
Attn: Jack Dale, CPPO
Purchasing Manager
City Hall, Lower Level
1000 Throckmorton Street
Fort Worth, Texas 76102
Re: Cooperative Purchasing Agreement
Jack,
Please _find enclosed; three original Cooperative Purchasing, Agreements executed by
Monte Mercer, Deputy Executive Director for.the North Central Texas Council of
Governments.
Upon execution by the City of Fort Worth, please return one fully executed original to
my attention,,at:
North Central Texas Council of Governments
Attn: E.J. Harbin, CPPO
Purchasing Manager
616 Six Flags Drive
Arlington, Texas 7601.1
You may contact me at 817-695-9109 or at eharbin@nctcog.org if you require additional
information or assistance.
Sincere) ,
Har n, CPPO
rchasing Manager
Enclosures
616 Six Flags Drive, Centerpoint Two
P. O. Box 5888, Arlington, Texas 76005-5888
(817) 640-3300 FAX: 817-640-7806 ® recycled paper
www.nctcog.org
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_ GENERAL INFORMATION:
M&C legend DATE: Tuesday, January 15, 2008 REFERENCE NO.: "P-10710
Print Preview LOG NAME: 131`07-0130
" SUBJECT:
`"® _Print to Microsoft -
Wordp Authorize Cooperative Purchasing Agreements for Goods and Services Between the City of Fort Worth, -
? _ Print Direct to Local Governments and Local CooperativeA Organizations Authorized by the Texas Local Government
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Attachments RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute Cooperative Purchasing
Agreements for goods and services between the City of Fort Worth, local governments and local
cooperative purchasing organizations authorized by the Texas Local Government Code.
= s
DISCUSSION:
The Purchasing Division will use this authorization to contract with local governments and local
cooperative organizations to obtain goods or services. The use of these contracts allows the City of
Fort Worth to take advantage of lower prices without the cost of competitive bidding by obtaining
access to existing competitively procured contracts with entities such as Tarrant County, Houston -
Galveston Area Council, Texas Association of School BoardsdE— Local Government Purchasing f
Cooperative and U.S. Communities.
This authorization will allow other local governments such as Tarrant County, the City of Arlington and
the City of Grand Prairie to participate in contracts awarded by (he City of Fort Worth that may result in
r k the addition of other entities' quantities at the next bidding opportunity. Increasing the volume of goods
and services bid increases the possibility of lower prices to the City through greater economies of r_
scale. Either of the contract participants may terminate the agreement with written notice to the other
party
' l Section 271.102(a) of the Texas Local Government Code allows local governments to participate in
cooperative purchasing programs. Section 271.102(c) of the Code provides that a local government
purchasing goods or services under a cooperative purchasing program satisfies any state law
' requiring that the local government seek competitive bids for purchase of the goods or services. The
h4, contracts for goods and services have been competitively bid to increase and simplify the purchasing & _,
power of local governments across the Slate of Texas. -
The Law Department recommends that the Purchasing Division review these agreements
hltp://apps.cAvmLorg/eco=iVviewmc.asp?id=8981 [10/2412016 3:08:57 PMt
Exhibit B
MASTER SERVICES AGREEMENT
FOR
Risk and Compliance Advisory Services
THIS MASTER SERVICES AGREEMENT ("Agreement"), effective the last date of signed approval ("Effective Date"), is
entered into by and between the North Central Texas Council of Governments ("NCTCOG"), a State of Texas political
subdivision and non-profit corporation, with offices located at 616 Six Flags Drive, Arlington, TX 76011, and:
Gradient Solutions Corporation
(hereinafter "Contractor"), with offices located at:
2807 Carrington Drive
Mansfield, TX
76063
ARTICLE I
RETENTION OF THE Contractor
1.1 The Contractor is being retained to provide services described below to NCTCOG based on the Contractor's
demonstrated competence and requisite qualifications to perform the scope of the services described herein. The
Contractor has special knowledge and expertise that is of interest to NCTCOG. NCTCOG agrees to and hereby does
retain the Contractor, as an independent Contractor, and the Contractor agrees to provide the service to NCTCOG, in
accordance with the terms and conditions provided in this Agreement.
ARTICLE II
SCOPE OF SERVICES
2.1 The Contractor will provide Risk and Compliance Advisory Services and additional services related to the performance
of the same, described within the Statement of Work in Attachment A (collectively, "Services") and consistent with
the requirements of NCTCOG RFP #NCT-2021-057. Any requested Services shall be documented in a written
Statement of Work describing the requested Services in detail, setting forth the projected price and expected minimum
duration of Service. Any such Statement of Work is hereby incorporated by this reference and made a part of this
Agreement and shall be subject to the terms and conditions in this Agreement. In the event of a conflict between any
term or provision in this Agreement and any term or provision in a Statement of Work, the term or provision in this
Agreement shall control unless the conflicting term or provision in this Agreement is referenced, and expressly stated
not to apply, in such Statement of Work.
2.2 Any agreed -upon changes to a Statement of Work shall be set forth in an Amended Statement of Work. Contractor
will not implement any changes or any new services until an Amended Statement of Work has been duly executed by
NCTCOG. NCTCOG shall not be liable for any amounts not included in a duly executed Statement of Work or
Amended Statement of Work.
2.3 All Services rendered under this Agreement will be performed by the Contractor: i) with the standard of care customary
to Contractor's profession; ii) in accordance with generally prevailing industry standards; and iii) in compliance with
all applicable laws, government regulatory requirements.
2.4 Other governmental entities may be extended the opportunity to purchase from contracts awarded by
the NCTCOG, with the consent and agreement of the successful Vendor(s) and the NCTCOG. Such consent
and agreement shall be conclusively inferred from lack of exception to this clause in Respondent's
Response. However, all parties indicate their understanding and all parties hereby expressly agree that the
NCTCOG is not an agent of, partner to or representative of those outside agencies or entities and that the
NCTCOG is not obligated or liable for any action or debts that arise out of such independently negotiated
interlocal or"piggyback" procurements.
2.4.1 NCTCOG acknowledges and agrees that it shall be its responsibility to make implementation
decisions, if any, and to determine further courses of action with respect to any matters addressed in the
Services delivered to NCTCOG. NCTCOG agrees to accept full and exclusive responsibility for
any and all implementation decisions and other actions taken to effect the adoption or execution of
recommendations identified and developed through the Services, and for the results of those decisions and
actions. Page 1 of 14
ARTICLE III
TERM
3.1 This Agreement will commence on the Effective Date and remain in effect for an initial term ending on September
30, 2024 (the "Term"), unless earlier terminated as provided herein. The Agreement may be renewed for up to two
(2) additional one-year renewals, subject to the availability of funding. The maximum contractual time allotted for
this project is five (5) years.
3.2 Termination. Either Party may terminate this Agreement and/or any Statement of Work at any time, with or without
cause, upon thirty (30) days' prior written notice. Upon its receipt of notice of termination of this Agreement or
Statement of Work, Contractor shall follow any instructions of NCTCOG respecting work stoppage. Contractor shall
cooperate with NCTCOG and NCTCOG's designees to provide for an orderly conclusion of the Services. Contractor
shall use its commercially reasonable efforts to minimize the amount of any non -cancelable obligations and shall assign
any contracts related thereto to NCTCOG, or NCTCOG's designee, at its request. If NCTCOG elects to continue any
activities underlying a terminated Statement of Work after termination, Contractor shall cooperate with NCTCOG to
provide for an orderly transfer of Contractor's responsibilities with respect to such Statements of Work to NCTCOG
or its designee. Upon the effective date of any such termination, the Contractor shall submit a final invoice for payment
in accordance with Article IV, and NCTCOG shall pay such amounts as are due to Contractor through the effective
date of termination. NCTCOG shall only be liable for payment of services rendered before the effective date of
termination. If Agreement is terminated, certain reporting requirements identified in this Agreement shall survive
termination of this Agreement.
ARTICLE IV
COMPENSATION
4.1 Fees. In consideration for the Services rendered by Contractor to NCTCOG under this Agreement, and for each duly
executed Statement of Work, NCTCOG will pay Contractor the fees outlined in each respective Statement of Work,
for the term of the Agreement, inclusive of any and all optional renewals. NCTCOG shall not be liable for Contractor's
services, including related fees and expenses, that exceed the scope of an executed Statement of Work or that
Contractor renders in support of an unexecuted Statement of Work. Except as otherwise provided in this Agreement,
said compensation shall constitute full payment for all services, liaison, products, materials, and equipment required
to provide and/or deliver the Services, including materials, training, equipment used, and overhead expenses.
4.2 Invoices. Contractor shall submit progress reports and invoices as otherwise stated in a Statement of Work or agreed
upon with NCTCOG, for Services provided. NCTCOG shall pay undisputed amounts in such invoice within forty-five
(45) days of receipt. Invoices should be submitted to:
NCTCOG
ATTN: Accounts Payable
PO Box 5888
Arlington, TX 76005-5888
Email: APavable(a_),nctcog.org
Courtesy Copy To: ciohnsonanctcoa.m.
Costs incurred prior to Effective Date of this Agreement are not eligible for reimbursement. There shall be no
obligation whatsoever to pay for performance of this Agreement from the monies of the NCTCOG, other than from
the monies designated for this Agreement.
If NCTCOG disputes any invoice NCTCOG shall timely pay the undisputed portion and promptly notify Contractor
in writing of the nature of the dispute as to the remainder, and the parties will use their best efforts to resolve the dispute
expeditiously. In the event the dispute is not resolved within thirty (30) days after receipt by Contractor of the notice
of such dispute, Contractor may suspend performance of the Services, without limitation or waiver of any other right
or remedy available under this Agreement or at law.
Page 2 of 14
ARTICLE V
RELATIONSHIP BETWEEN THE PARTIES
5.1 Independent Contractor. It is understood and agreed that the relationship described in this Agreement between the
Parties is contractual in nature and is not to be construed to create a partnership or joint venture or agency relationship
between the parties. Neither party shall have the right to act on behalf of the other except as expressly set forth in this
Agreement. Contractor will be solely responsible for and will pay all taxes related to the receipt of payments hereunder.
No Contractor personnel shall obtain the status of or otherwise be considered a NCTCOG employee by virtue of their
activities under this Agreement. For the avoidance of doubt, in no event will NCTCOG pay, reimburse, or otherwise
be responsible, financially or otherwise, for any insurance, health care, or similar costs or benefits relating to
Contractor, its affiliates, or any of their employees, subcontractors, or agents. The rights and obligations of NCTCOG
under this Agreement may be exercised or performed on its behalf by one or more of its affiliates.
5.1.1 Gradient Solutions Corporation is not a public accounting firm.
5.1.2 Gradient Solutions Corporation is licensed as an Investigations Company in the State of
(A14770801). Official address and number for Investigation Company matters is 460 Turner Warnell Road,
Texas Mansfield, TX 76063. Contact telephone number is (817) 614-6329
5.2 Contractor Requested Provision. It is understood and agreed that the Contractor's relationship and use of
Rackspace or any other similar hosting company, Diligent GRC or InterWorks Inc. in Contractor's delivery of the
Services is not a subcontractor relationship and is a relationship between Contractor and Vendors.
Page 3 of 14
ARTICLE VI
REPRESENTATION AND WARRANTIES
6.1 Representations and Warranties. Contractor represents and warrants that:
6.1.1 As of the Effective Date of this Agreement, it is not a party to any oral or written contract or understanding with
any third party that is inconsistent with this Agreement and/or would affect the Contractor's performance under
this Agreement or that will in any way limit or conflict with its ability to fulfill the terms of this Agreement. The
Contractor further represents that it will not enter into any such agreement during the Term of this Agreement;
6.1.2 NCTCOG is prohibited from making any award or permitting any award at any tier to any party which is debarred
or suspended or otherwise excluded from, or ineligible for, participation in federal assistance programs under
Executive Order 12549, Debarment and Suspension. Contractor and its subcontractors shall include a statement
of compliance with Federal and State Debarment and suspension regulations in all Third -party contracts.
6.1.3 Contractor shall notify NCTCOG if Contractor or any of the Contractor's Contractors becomes debarred or
suspended during the performance of this Agreement. Debarment or suspension of the Contractor or any of
Contractor's Contractors may result in immediate termination of this Agreement.
6.1.4 Contractor will provide to NCTCOG, with each deliverable to be provided under this Agreement, a written
summary sheet listing any third -party software or other intellectual property contained within the deliverable, if
any, together with licenses permitting NCTCOG to use such third -party software and intellectual property in
connection with its use of the deliverable and the terms, conditions, and status of the license of such software and
intellectual property. Except for the third -party software and intellectual property described in the written
summary provided to NCTCOG in connection with the preceding sentence, the Contractor warrants and
represents that all work product created under this Agreement shall be original work of the Contractor or in the
public domain and shall not infringe any copyright, trademark, trade secret, patent or other Intellectual Property
right of any third party;
6.1.5 Contractor and its employees and subcontractors have all of the necessary qualifications, licenses, permits, and/or
registrations to perform the Services in accordance with the terms and conditions of this Agreement, and at all
times during the Term, all such qualifications, licenses, permits, and/or registrations shall be current and in good
standing; and
6.1.6 Contractor shall, and shall cause its representatives to, comply with all municipal, state, and federal laws, rules,
and regulations applicable to the performance of the Contractor's obligations under this Agreement.
6.1.7 NCTCOG agrees, acknowledges and understands that Contractor' performance of its Services under this
Agreement is subject to and conditioned upon the timely cooperation, willingness, responsiveness and skill level
of the NCTCOG and its applicable employees and the fulfillment of the responsibilities of the NCTCOG, if any,
set forth in the Agreement or the applicable Statement of Work. THE WARRANTIES AND
REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND Contractor HEREBY
DISCLAIMS, ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Contractor cannot and does not
warrant the products or services of third parties, except to the extent that said "third party" is an agent or sub -
Contractor of Contractor.
Page 4 of 14
ARTICLE VII
CONFIDENTIAL INFORMATION AND OWNERSHIP
7.1 Confidential Information. Contractor acknowledges that any information it or its employees, agents, or subcontractors
obtain regarding the operation of NCTCOG, its products, services, data, policies, customers, personnel, and other
aspect of its operation ("Confidential Information") is proprietary and confidential, and shall not be revealed, sold,
exchanged, traded, or disclosed to any person, company, or other entity during the period of the Contractor's retention
hereunder or at any time thereafter without the express written permission of NCTCOG. Contractor shall use
commercially reasonable means to secure NCTCOG's Confidential Information.
Notwithstanding anything in this Agreement to the contrary, Contractor shall have no obligation of confidentiality with
respect to information that (i) is or becomes part of the public domain through no act or omission of Contractor; (ii)
was in Contractor's lawful possession prior to the disclosure and had not been obtained by Contractor either directly
or indirectly from the NCTCOG; (iii) is lawfully disclosed to Contractor by a third parry without restriction on
disclosure; (iv) is independently developed by Contractor without use of or reference to the NCTCOG's Confidential
Information; or (v) is required to be disclosed by law or judicial, arbitral or governmental order or process, provided
Contractor gives the NCTCOG prompt written notice of such requirement to permit the NCTCOG to seek a protective
order or other appropriate relief. Contractor acknowledges that NCTCOG must strictly comply with the Public
Information Act, Chapter 552, Texas Government Code, in responding to any request for public information. This
obligation supersedes any conflicting provisions of this Agreement. In the event a request for public information is
made, a determination on whether information is confidential or proprietary will be made by the Office of the Attorney
General of the State of Texas.
7.2 Ownership. Contractor acknowledges that NCTCOG, as a governmental entity, is subject to the Texas Public
Information Act. All final documents, reports, or materials to be delivered to NCTCOG as set forth in Attachment A
are and shall at all times be and remain, upon payment of Contractor's invoices therefore, the property of NCTCOG
and shall not be subject to any restriction or limitation on their future use by, or on behalf of, NCTCOG, except
otherwise provided herein. NCTCOG shall have the right to use such deliverables solely for the purpose intended by
this Agreement. Any other use or reuse of the deliverables shall be at NCTCOG's sole risk without liability or legal
exposure to Contractor. Contractor shall retain ownership and all rights in its standard drawing details, specifications,
databases, computer software, and other proprietary property, whether or not protected under the copyright laws of the
United States. Rights to intellectual property developed, utilized, or modified in the performance of Services shall
remain the property of the Contractor. Subject to the foregoing exception, if at any time demand be made by
NCTCOG for any documentation, whether after termination of this Agreement or otherwise, the same shall be
turned over to NCTCOG without delay, and in no event later than thirty (30) days after such demand is made.
Contractor shall have the right to retain copies of documentation and other items for its archives. If for any reason
the foregoing Agreement regarding the ownership of documentation is determined to be unenforceable, either in
whole or in part, the Contractor hereby assigns and agrees to assign to NCTCOG all rights, title, and interest that the
Contractor may have or at any time acquire in said documentation and other materials, provided that the Contractor
has been paid the aforesaid. The rights vested for NCTCOG pursuant to this Article shall not be construed so as to
preclude the Contractor from utilizing standard report language or individual standard features on other projects for
other clients.
Page 5 of 14
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. All notices from one Party to another Party regarding this Agreement shall be in writing and delivered to
the addresses shown below:
If to NCTCOG: North Central Texas Council of Governments
P.O. Box 5888
Arlington, TX 76005-5888
Attn: Craigan Johnson
(817)695-9186
Ciohnson( ,nctcog.org
If to Contractor: Gradient Solutions Corporation
Attn: Calvin E. Webb II
2807 Carrington Drive
Mansfield, TX 76063
(817)233-5999
calvinaw Gradient. corn
The above contact information may be modified without requiring an amendment to the Agreement.
8.2 Tax. NCTCOG and several participating entities are exempt from Texas limited sales, federal excise and use tax, and
does not pay tax on purchase, rental, or lease of tangible personal property for the organization's use. A tax exemption
certificate will be issued upon request.
8.3 Indemnification. Contractor shall defend, indemnify, and hold harmless NCTCOG and Participating Entities,
NCTCOG's affiliates, and any of their respective directors, officers, employees, agents, subcontractors, successors, and
assigns from any and all suits, actions, claims, demands, judgments, liabilities, losses, damages, costs, and
expenses (including reasonable attorneys' fees and court costs) (collectively, "Losses") arising out of or relating to:
(i) Services performed and carried out pursuant to this Agreement; (ii) breach of any obligation, warranty, or
representation in this Agreement, (iii) the negligence or willful misconduct of Contractor and/or its employees or
subcontractors; or (iv) any infringement, misappropriation, or violation by Contractor and/or its employees or
subcontractors of any right of a third party; provided, however, that Contractor shall have no obligation to defend,
indemnify, or hold harmless to the extent any Losses are the result of NCTCOG's or Participating Entities' gross
negligence or willful misconduct.
8.4 Limitation of Liability. In no event shall either party be liable for special, consequential, incidental, indirect or
punitive loss, damages or expenses arising out of or relating to this Agreement, whether arising from a breach
of contract or warranty, or arising in tort, strict liability, by statute or otherwise, even if it has been advised of
their possible existence or if such loss, damages or expenses were reasonably foreseeable.
Notwithstanding any provision hereof to the contrary, neither party's liability shall be limited by this Article
with respect to claims arising from breach of any confidentiality obligation, arising from such party's infringement
of the other parry's intellectual property rights, covered by any express indemnity obligation of such party
hereunder, arising from or with respect to injuries to persons or damages to tangible property, or arising out of the
gross negligence or willful misconduct of the party or its employees.
8.4.1 - Monetary Limitation. The total liability, cost or expense of NCTCOG or Contractor under any theory or
theories associated with any particular Statement of Work, and thereby this Agreement, shall not exceed the fee that
is paid or is payable as set out in such particular Statement of Work.
8.5 Insurance. At all times during the term of this Agreement, Contractor shall procure, pay for, and maintain, with
approved insurance carriers, the minimum insurance requirements set forth below, unless otherwise agreed in a
Purchase Order between Contractor and Participating Entities. Further, Contractor shall require all contractors and
sub -contractors performing work for which the same liabilities may apply under this Agreement to do likewise. All
subcontractors performing work for which the same liabilities may apply under this contract shall be required to do
likewise. Contractor may cause the insurance to be effected in whole or in part by the contractors or sub -contractors
under their contracts. NCTCOG reserves the right to waive or modify insurance requirements at its sole discretion.
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8.5.1 Workers' Compensation: Statutory limits and employer's liability of $100,000 for each accident or disease.
8.5.2 Commercial General Liability:
8.5.2.1 Required Limits:
$1,000,000 per occurrence;
$3,000,000 Annual Aggregate
8.5.2.2 Commercial General Liability policy shall include:
8.5.2.2.1 Coverage A: Bodily injury and property damage;
8.5.2.2.2 Coverage B: Personal and Advertising Injury liability;
8.5.2.2.3 Coverage C: Medical Payments;
8.5.2.2.4 Products: Completed Operations;
8.5.2.2.5 Fire Legal Liability;
8.5.2.3 Policy coverage must be on all "occurrence" basis fusing CGL forms as approved by the Texas
State Board of Insurance.
8.5.3 Business Auto Liability: Coverage shall be provided for all owned hired, and non -owned vehicles. Required
Limit: $1,000,000 combined single limit each accident.
8.5.4 Professional Errors and Omissions liability:
8.5.4.1 Required Lunits:
$1,000,000 Each Claim
$1,000,000 Annual Aggregate
8.6 Conflict of Interest. During the temi of this Agreement, and all extensions hereto and for a period of one (1) year
thereafter, neither party, shall, without the prior written consent of the other, directly or indirectly, whether for its
own account or with any other persons or entity whatsoever, employ, solicit to employ or endeavor to entice away
any person who is employed by the other party.
8.7 Force Majeure. It is expressly understood and agreed by both parties to this Agreement that, if the performance
of any provision of this Agreement is delayed by force majeure, defined as reason of war, civil commotion, act of
God, goverrmiental restriction, regulation or interference, fire, explosion, hurricane, flood, failure of transportation,
court injunction, or any circumstances which are reasonably beyond the control of the party obligated or pernnitted
under the terns of this Agreement to do or perform the same, regardless of whether any such circumstance is similar
to any of those enumerated herein, the party so obligated or penmitted shall be excused from doing or performing
the same during such period of delay, so that the period of time applicable to such requirement shall be extended
for a period of time equal to the period of time such party was delayed. Each party must inform the other in writing
within a reasonable time of the existence of such force majeure.
8.8 Ability to Perform. Contractor agrees promptly to inform NCTCOG of any event or change in circumstances
which may reasonably be expected to negatively affect the Contractor's ability to perforn its obligations under this
Agreement in the manner contemplated by the parties.
8.9 Availability of Funding. This Agreement and all claims, suits, or obligations arising under or related to this
Agreement are subject to and limited by the receipt and availability of fiords which are received 6•orn the
Participating Entities by NCTCOG dedicated for the purposes of this Agreement.
8.10 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of
Texas, United States of America. The mandatory and exclusive venue for the adjudication or resolution of any
dispute arising out of this Agreement shall be in Tarrant County, Texas.
8.11 Waiver. Failure by either party to insist on strict adherence to any one or more of the terns or conditions of this
Agreement, or on one or more occasions, will not be construed as a waiver, nor deprive that party of the right to
require strict compliance with tine same thereafter.
8.12 Entire Agreement. This Agreement and any attachments/addenduuns, as provided herein, constitutes the entire
agreement of the parties and supersedes all other agreements, discussions, representations or understandings
between the parties with respect to the subject matter hereof. No amendments hereto, or waivers or releases of
obligations hereunder, shall be effective unless agreed to in writing by the parties hereto.
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8.13 Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other
Party.
8.14 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provision(s) hereof, and this Agreement shall be revised so as to cure such invalid, illegal, or
unenforceable provision(s) to carry out as near as possible the original intents of the Parties.
8.15 Amendments. This Agreement may be amended only by a written amendment executed by both Parties, except
that any alterations, additions, or deletions to the terms of this Agreement, which are required by changes in Federal
and State law or regulations or required by the funding source. are automatically incorporated into this Agreement
without written amendment hereto and shall become effective on the date designated by such law or regulation.
8.16 Dispute Resolution. The parties to this Agreement agree to the extent possible and not in contravention of any
applicable State or Federal law or procedure established for dispute resolution, to attempt to resolve any dispute
between therm regarding this Agreement informally through voluntary mediation, arbitration or any other local
dispute mediation process, including but not linnited to dispute resolution policies of NCTCOG, before resorting to
litigation.
8.17 Publicity. Contractor shall not issue any press release or make any statement to the media with respect to this
Agreement or the services provided hereunder without the prior written consent of NCTCOG.
8.18 Survival. Rights and obligations under this Agreement which by their nature should survive will remain in effect
after termination or expiration hereof.
ARTICLE IX
ADDITIONAL REQtiIREMENTS
9.1 Equal Employment Opportunity. Contractor shall not discriminate against any employee or applicant for
employment because of race, religion, color, sex, sexual orientation, gender identity, or national origin. Contractor
shall take affirmative actions to ensure that applicants are employed, and that employees are treated, during their
employment, without regard to their race, religion, color, sex, sexual orientation, gender identity, or national origin.
Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer,
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship.
9.2 Davis -Bacon Act. Contractor agrees to comply with all applicable provisions of 40 USC § 3 141 — 3148.
9.3 Contract Work Hours and Selection Standards. Contractor agrees to comply with all applicable provisions of
40 USC § 3701 — 3708 to the extent this Agreement indicates any employment of mechanics or laborers.
9.4 Rights to Invention Made Under Contract or Agreement. Contractor agrees to comply with all applicable
provisions of 3 7 CFR Part 401.
9.5 Clear Air Act, Federal Water Pollution Control Act, and Energy Policy Conservation Act. Contractor agrees
to comply with all applicable provisions of the Clean Air Act under 42 USC § 7401 — 7671, the Energy Federal
Water Pollution Control Act 33 USC § 1251-1387, and the Energy Policy Conservation Act under 42 USC § 6201.
9.6 Debarment/Suspension. Contractor is prohibited from making any award or pennnitting any award at any tier to
any party which is debarred or suspended or otherwise excluded irons or ineligible for participation in federal
assistance programs under Executive Order 12549, Debarment and Suspension. Contractor and its subcontractors
shall comply with the Certification Requirements for Recipients of Grants and Cooperative Agreements Regarding
Debarments and Suspensions.
9.7 Restrictions on Lobbying. Byrd Anti -Lobbying Amendment (31 U.S.C. 1352)--Contractors that apply or bid for
an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not
and has not used Federal appropriated fiords to pay any person or organization for influencing or attempting to
Page 8 of 14
influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an
employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award
covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non -Federal funds that takes place in
connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non -Federal
award.
9.8 Procurement of Recovered Materials. Contractor agrees to comply with all applicable provisions of 2 CFR
§200.322.
9.9 Drug -Free Workplace. Contractor shall provide a drug free work place in compliance with the Drug Free Work
Place Act of 1988.
9.10 Texas Corporate Franchise Tax Certification. Pursuant to Article 2.45, Texas Business Corporation Act, state
agencies may not contract with for profit corporations that are delinquent in making state franchise tax payments.
9.11 Civil Rights Compliance
Compliance with Regulations: Contractor will comply with the Acts and the Regulations relative to
Nondiscrimination in Federally -assisted programs of the U.S. Department of Transportation (USDOT), the Federal
Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by
reference and made part of this agreement.
Nondiscrimination: Contractor, with regard to the work performed by it during the contract, will not discriminate
on the grounds of race, color, sex, or national origin in the selection and retention of subcontractors, including
procurement of materials and leases of equipment. Contractor will not participate directly or indirectly in the
discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers
any activity, project, or program set forth in Appendix B of 45 CFR Part 21.
Solicitations for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations either by
competitive bidding or negotiation made by Contractor for work to be performed under a subcontract, including
procurement of materials or leases of equipment, each potential subcontractor or supplier will be notified by
Contractor of obligations under this contract and the Acts and Regulations relative to Nondiscrimination on the
grounds of race, color, sex, or national origin.
Information and Reports: Contractor will provide all information and reports required by the Acts, the Regulations,
and directives issued pursuant thereto, and will permit access to its books, records, accounts, other sources of
information, and facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance
with such Acts, Regulations or directives. Where any information required of Contractor is in the exclusive
possession of another who fails or refuses to furnish this information, Contractor will so certify to NCTCOG, the
Texas Department of Transportation ("the State") or the Federal Highway Administration, as appropriate, and will
set forth what efforts it has made to obtain the information.
Sanctions for Noncompliance: In the event of Contractor's noncompliance with the Nondiscrimination provisions
of this Agreement, NCTCOG will impose such sanctions as it or the State or the FHWA may determine to be
appropriate, including, but not limited to: withholding of payments to the Contractor under this Agreement until the
Contractor compiles and/or cancelling, terminating or suspension of this Agreement, in whole or in part.
Incorporation of Provisions: Contractor will include the provisions of the paragraphs listed above, in this
section 9.11, in every subcontract, including procurement of materials and leases of equipment, unless exempt by
the Acts, the Regulations and directives issued pursuant thereto. Contractor will take such action with
respect to any subcontract or procurement as NCTCOG, the State, or the FHWA may direct as a means
of enforcing such provisions including sanctions for noncompliance. Provided, that if Contractor becomes
involved in, or is threatened with, litigation with a subcontractor or supplier because of such direction, Contractor
may request the State to enter into such litigation to protect the interests of the State. In addition, Contractor may
request the United States to enter into such litigation to protect the interests of the United States.
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9.12 Disadvantaged Business Enterprise Program Requirements
Contractor shall not discriminate on the basis of race, color, national origin, or sex in the award and performance
of any U.S. Department of Transportation (DOT) -assisted contract or in the administration of its DBE program or
the requirements of 49 CFR Part 26. Contractor shall take all necessary and reasonable steps under 49 CFR Part 26
to ensure non-discrimination in award and administration of DOT -assisted contracts. Each sub -award or sub-
contract must include the following assurance: The Contractor, sub -recipient, or sub -contractor shall not
discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The
Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -
assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this agreement,
which may result in the termination of this agreement or such other remedy as the recipient deems appropriate.
9.13 Pertinent Non -Discrimination Authorities
During the performance of this Agreement, Contractor, for itself, its assignees, and successors in interest agree to
comply with the following nondiscrimination statutes and authorities; including but not limited to:
a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on
the basis of race, color, national origin); and 49 CFR Part 21.
b. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601),
(prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or
Federal -aid programs and projects).
c. Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), as amended, (prohibits discrimination on the basis
of sex).
d. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.) as amended, (prohibits discrimination
on the basis of disability); and 49 CFR Part 27.
e. The Age Discrimination Act of 1975, as amended, (49 U.S.C. § 6101 et seq.), (prohibits discrimination on the
basis of age).
f. Airport and Airway Improvement Act of 1982, (49 U.S.C. Chapter 471, Section 47123), as amended, (prohibits
discrimination based on race, creed, color, national origin, or sex).
g. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of
Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the
Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of
the programs or activities of the Federal -aid recipients, subrecipients and contractors, whether such programs or
activities are Federally funded or not).
h. Titles II and III of the Americans with Disabilities Act, which prohibits discrimination on the basis of disability
in the operation of public entities, public and private transportation systems, places of public accommodation,
and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation
regulations at 49 C.F.R. parts 37 and 38.
i. The Federal Aviation Administration's Nondiscrimination statute (49 U.S.C. § 47123) (prohibits discrimination
on the basis of race, color, national origin, and sex).
j. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -
Income Populations, which ensures nondiscrimination against minority populations by discouraging programs,
policies, and activities with disproportionately high and adverse human health or environmental effects on
minority and low-income populations.
k. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and
resulting agency guidance, national origin discrimination includes discrimination because of limited English
proficiency (LEP). To ensure compliance with Title VI, the parties must take reasonable steps to ensure that LEP
persons have meaningful access to the programs (70 Fed. Reg. at 74087 to 74100).
i. Title IX of the Education Amendments of 1972, as amended, which prohibits the parties from discriminating
because of sex in education programs or activities (20 U.S.C. 1681 et seq.).
9.14 Ineligibility to Receive State Grants or Loans, or Receive Payment on State Contracts
In accordance with Section 231.006 of the Texas Family Code, a child support obligor who is more than thirty
(30) days delinquent in paying child support and a business entity in which the obligor is a sole proprietor,
partner, shareholder, or owner with an ownership interest of at least twenty-five (25) percent is not eligible to:
a. Receive payments from state funds under a contract to provide property, materials or services; or
b. Receive a state -funded grant or loan.
By signing this Agreement, the Contractor certifies compliance with this provision.
Page 10 of 14
9.15 House Bill 89 Certification
If contractor is required to make a certification pursuant to Section 2270.002 of the Texas Government Code,
contractor certifies that contractor does not boycott Israel and will not boycott Israel during the term of the contract
resulting from this solicitation. If contractor does not make that certification, contractor state in the space below
why the certification is not required.
9.16 Certification Regarding Disclosure of Conflict of Interest.
The undersigned certifies that, to the best of his or her knowledge or belief, that:
"No employee of the contractor, no member of the contractor's governing board or body, and no person who
exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this
contract shall participate in any decision relating to this contract which affects his/her personal pecuniary interest.
Executives and employees of contractor shall be particularly aware of the varying degrees of influence that can be
exerted by personal friends and associates and, in administering the contract, shall exercise due diligence to avoid
situations which give rise to an assertion that favorable treatment is being granted to friends and associates. When
it is in the public interest for the contractor to conduct business with a friend or associate of an executive or
employee of the contractor, an elected official in the area or a member of the North Central Texas Council of
Governments, a permanent record of the transaction shall be retained.
Any executive or employee of the contractor, an elected official in the area or a member of the NCTCOG, shall
not solicit or accept money or any other consideration from a third person, for the performance of an act reimbursed
in whole or part by contractor or Department. Supplies, tools, materials, equipment or services purchased with
contract funds shall be used solely for purposes allowed under this contract. No member of the NCTCOG shall
cast a vote on the provision of services by that member (or any organization which that member represents) or
vote on any matter which would provide a direct or indirect financial benefit to the member or any business or
organization which the member directly represents".
No officer, employee or paid consultant of the contractor is a member of the NCTCOG.
No officer, manager or paid consultant of the contractor is married to a member of the NCTCOG.
No member of NCTCOG directly owns, controls or has interest in the contractor.
The contractor has disclosed any interest, fact, or circumstance that does or may present a potential conflict of interest.
No member of the NCTCOG receives compensation from the contractor for lobbying activities as defined in Chapter
305 of the Texas Government Code.
Should the contractor fail to abide by the foregoing covenants and affirmations regarding conflict of interest, the
contractor shall not be entitled to the recovery of any costs or expenses incurred in relation to the contract and shall
immediately refund to the North Central Texas Council of Governments any fees or expenses that may have been paid
under this contract and shall further be liable for any other costs incurred or damages sustained by the NCTCOG as it
relates to this contract.
9.17 Certification of Fair Business Practices
That the submitter affirms that the submitter has not been found guilty of unfair business practices in a judicial or state
agency administrative proceeding during the preceding year. The submitter further affirms that no officer of the
submitter has served as an officer of any company found guilty of unfair business practices in a judicial or state agency
administrative during the preceding year.
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9.18 Certification of Good Standing Texas Corporate Franchise Tax Certification
Pursuant to Article 2.45, Texas Business Corporation Act, state agencies may not contract with for profit corporations
that are delinquent in making state franchise tax payments. The undersigned authorized representative of the
corporation making the offer herein certified that the following indicated Proposal is true and correct and that the
undersigned understands that making a false Proposal is a material breach of contract and is grounds for contract
cancellation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
North Central Texas Council of Governments
DocuSigned by:
M.ik, f XS auA,4
By:
Name: Mike Eastland
Title: Executive Director
11/1/2021
Date:
Gradient Solutions Corporation
DocuSigned by:
E6"Vk1 (J11t-1® ( l
By: RCAArtIRnPrAnAr.9
Name:
Title:
Date:
Calvin Webb II
President and CEO
11/1/2021
Page 12 of 14
Exhibit C
Attachment A
Statement of Work
A list of deliverables and expectations of NCTCOG's Management Audit Advisory Services are detailed, below.
Deliverables and Expectations:
Provide guidance in the area of management/internal audit and compliance, specifically in the public
sector;
2. Make recommendations based on knowledge of governmental codes and regulations including, but not
limited to:
a. Office of Management and Budget Super Circular Uniform Guidance - 2 Code of Federal
Regulations 200
b. Uniform Grant Management Standards (UGMS)
c. American Institute of Certified Public Accountants Audit Standards (AICPA);
3. Create three (3) year, rolling strategic plans;
4. Perform data mining tasks for statistical analysis and indicating its potential use in the management/
internal audit function;
Work with NCTCOG monitoring staff on developing and implementing Agency risk assessments and best
practices;
6. Develop entity -wide and third -parry risk assessments;
7. Provide management advisory services for the Executive Director, Deputy Executive Director, Controller,
Director of Administration, Chief Human Resources Officer, Compliance Manager, Audit Manager, Chief
Information Officer, and Chief Technology Officer;
8. Employ and/or advise on TeamMate or similar automated work paper system;
9. Reviewing existing materials and processes for compliance;
10. Provide consultation surrounding the Committee of Sponsoring Organization (COSO) framework;
11. Provide leadership fiduciary training, specifically in support of NCTCOG's Human Resources training
efforts and training support of NCTCOG staff when requested including performing the training using
firm's staff or helping to develop training or presentation material with NCTCOG staff,
12. Provide consultation, coordination and general support surrounding information technology and related
projects, as it pertains to financial systems and processes;
13. General administrative support in matters relating to governance, risk, compliance and internal controls;
14. Provide internal control assessments;
15. Any other relevant and associated Audit Advisory services that would be of benefit to the NCTCOG.
Page 13 of 14
Compensation
The Contractor will perform duties on an as -needed basis. Contractor will be provided the scope of the project
NCTCOG desires, and shall determine what type and number of their staff will be required to satisfactorily perform
the project. The proposed cost of the project will be determined by cross-referencing the hours required for each
employee, and their captured rate card, below:
Gradient will propose the following two methods to incur hours on behalf of the NCTCOG:
a) Level 1 — The NCTCOG requests of 10 hours or under will be billed at the hourly rates below.
b) Level 2 — The NCTCOG requests of 10 hours or more will be drafted into an individual Statement of
Work listing the expected scope, tasks, deliverables, hours or fixed cost, and other similar items.
c) Hours to be incurred will include onsite, remote and travel time.
2. Fiscal Year 2021— 2022 hourly fee - $235 per hour (beginning September 1, 2021). All rates apply to Calvin
E. Webb II, Calvin E. Webb III, Michael Taylor, future Gradient employees, and any subcontractors utilized by
Gradient.
3. Expected Annual Escalation of Fees - Gradient estimates the hourly rate for the life of the contract to be as
follows:
• Fiscal Year 2022 — 2023 — $240 per hour
• Fiscal Year 2023 — 2024 — $245 per hour
• Fiscal Year 2024 — 2025 — $250 per hour
• Fiscal Year 2025 — 2026 — $255 per hour
If the Consumer Price Index or other pricing measures rise significantly during the contract period with the
NCTCOG, Gradient would request the NCTCOG's consideration of reasonable rate increases beyond those
listed above to reflect the current pricing environment.
4. Travel or Per Diem Rates - The hourly rates include standard mileage and tolls for Services provided at the
NCTCOG's office site in Arlington, TX. If approved in advance by the NCTCOG, mileage, tolls, per diems and
other travel related expenses will be reimbursed for Services provided at a Subrecipient, Subcontractors, or other
worksite not located at the NCTCOG's office site in Arlington, TX. This assumes that on -site projects will be
performed in half day increments (at a minimum).
5. Gradient will submit invoices at the beginning of the month for all provided Services to be rendered that were
provided the previous month. Such invoices will distinguish travel related hours.
6. Facilities to be furnished by NCTCOG — When necessary, the NCTCOG will provide workspace, Internet
connection, meeting rooms, projection equipment, and other similar items needed to conduct on -site meetings and
tasks.
7. The NCTCOG will determine the amount of funds utilized under our proposal based on the levels listed above.
Historically, Gradient's annual billing total for a single fiscal year has ranged from $50,000 to $100,000 depending
on the NCTCOG's needs.
8. The rates listed above include direct costs, indirect costs, and administrative costs for
Gradient to fulfill the requirements of the NCTCOG.
Page 14 of 14
Exhibit D
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor doing business with local governmental entity
FORM CIQ
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. OFFICE USE ONLY
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who Date Received
has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the
vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local governmental entity not later
than the 7th business day after the date the vendor becomes aware of facts that require the statement to be
filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An
offense under this section is a misdemeanor.
J Name of vendor who has a business relationship with local governmental entity.
Gradient Solutions Corporation
J
❑ Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated
completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which
you became aware that the originally filed questionnaire was incomplete or inaccurate.)
J Name of local government officer about whom the information is being disclosed.
Not Applicable
Name of Officer
J Describe each employment or other business relationship with the local government officer, or a family member of the
officer, as described by Section 176.003(a)(2)(A). Also describe any family relationship with the local government officer.
Complete subparts A and B for each employment or business relationship described. Attach additional pages to this Form
CIO as necessary.
A. Is the local government officer or a family member of the officer receiving or likely to receive taxable income,
other than investment income, from the vendor?
F]Yes F-1 No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction
of the local government officer or a family member of the officer AND the taxable income is not received from the
local governmental entity?
F]Yes F1 No
J Describe each employment or business relationship that the vendor named in Section 1 maintains with a corporation or
other business entity with respect to which the local government officer serves as an officer or director, or holds an
ownership interest of one percent or more.
J
❑Check this box if the vendor has given the local government officer or a family member of the officer one or more gifts
as described in Section 176.003(a)(2)(B), excluding gifts described in Section 176.003(a-1).
J A&& EA*'
Calvin E. Webb II (May 15. 2023 09:08 CDT) May 15, 2023
Signature of vendor doing business with the governmental entity Date
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 1/1/2021
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor doing business with local governmental entity
A complete copy of Chapter 176 of the Local Government Code maybe found at http://www.statutes.legis.state.tx.us/
Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form.
Local Government Code § 176.001 (1 -a): "Business relationship" means a connection between two or more parties
based on commercial activity of one of the parties. The term does not include a connection based on:
(A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an
agency of a federal, state, or local governmental entity;
(B) a transaction conducted at a price and subject to terms available to the public; or
(C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and
that is subject to regular examination by, and reporting to, that agency.
Local Government Code & 176.003(a)(2)(A) and (B):
(a) A local government officer shall file a conflicts disclosure statement with respect to a vendor if:
(2) the vendor:
(A) has an employment or other business relationship with the local government officer or a
family member of the officer that results in the officer or family member receiving taxable
income, other than investment income, that exceeds $2,500 during the 12-month period
preceding the date that the officer becomes aware that
(i) a contract between the local governmental entity and vendor has been executed;
or
(ii) the local governmental entity is considering entering into a contract with the
vendor;
(B) has given to the local government officer or a family member of the officer one or more gifts
that have an aggregate value of more than $100 in the 12-month period preceding the date the
officer becomes aware that:
(i) a contract between the local governmental entity and vendor has been executed; or
(ii) the local governmental entity is considering entering into a contract with the vendor.
Local Government Code § 176.006(a) and (a-1)
(a) Avendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship
with a local governmental entity and:
(1) has an employment or other business relationship with a local government officer of that local
governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A);
(2) has given a local government officer of that local governmental entity, or a family member of the
officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any
gift described by Section 176.003(a-1); or
(3) has a family relationship with a local government officer of that local governmental entity.
(a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator
not later than the seventh business day after the later of:
(1) the date that the vendor:
(A) begins discussions or negotiations to enter into a contract with the local governmental
entity; or
(B) submits to the local governmental entity an application, response to a request for proposals
or bids, correspondence, or another writing related to a potential contract with the local
governmental entity; or
(2) the date the vendor becomes aware:
(A) of an employment or other business relationship with a local government officer, or a
family member of the officer, described by Subsection (a);
(B) that the vendor has given one or more gifts described by Subsection (a); or
(C) of a family relationship with a local government officer.
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 1/1/2021
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 05/09/23 M&C FILE NUMBER: M&C 23-0363
LOG NAME: 13P ILA NCTCOG RISK & COMPLIANCE ADVISORY SERVICE TD FMS
SUBJECT
(ALL) Authorize Execution of an Agreement with Gradient Solutions Corporation for Risk and Compliance Advisory Services in the Amount of
$285,000.00 Using an Interlocal Agreement with North Central Texas Council of Governments for the Financial Management Services Department
RECOMMENDATION:
It is recommended that the City Council authorize execution of an agreement with Gradient Solutions Corporation for Risk and Compliance
Advisory Services in the amount of $285,000.00 and authorize three consecutive one-year renewal options for the same annual amount using an
interlocal agreement with North Central Texas Council of Governments for the Financial Management Services Department.
DISCUSSION:
In February 2023, the Financial Management Services Department (FMS) approached the Purchasing Division to enter into an agreement with
Gradient Solutions Corporation for Risk and Compliance Advisory Services. FMS, in coordination with Information Technology Solutions, received
funding under the American Rescue Plan Act to conduct a financial risk assessment and other Treasury security enhancements initiatives.
FMS has reviewed the master services agreement with Gradient Solutions Corporation and has concluded that the North Central Texas Council of
Governments (NCTCOG) interlocal agreement provides a broad scope of Risk and Compliance Advisory Services. In addition to being utilized to
carry out the financial risk assessment, this contract contains a range of other professional services under the umbrella of Risk and Compliance
Advisory Services that will be useful for other risk and compliance related initiatives. FMS' goal is to put this contract in place to provide flexibility to
complete the financial risk assessment while also opening up the broader range of services listed in the agreement such as, but not limited to;
providing guidance in the area of management/internal audit and compliance, creating rolling strategic plans, developing and implementing
agency risk assessments and best practices, as well as general administrative support and assessments in matters relating to governance, risk,
compliance, financial system implementations, financial business, process improvements, and improvements to internal controls.
Funding for the financial risk assessment and other Treasury security enhancements is available in the Grants Cap Projects Federal Fund no.
31001 for the purpose of funding the ARPA for ITS initiatives project as appropriated. Other services, as needed, will be funded from various other
available funding sources.
An administrative change order or increase may be made by the City Manager or his designee up to the amount allowed by relevant law and the
Fort Worth City Code and does not require specific City Council approval as long as sufficient funds have been appropriated.
State law provides that a local government purchasing an item under a Cooperative Purchasing Agreement satisfies state laws requiring that the
local government seek competitive bids for purchase of the item. In June 2021, NCTCOG processed a bid (NCT RFP No. 2021-057) and received
two (2) responses. An evaluation team scored the proposal and awarded an agreement to Gradient Solutions Corporation. The contract has a
term through September 30, 2023 with the right to renew the contract for three (3) additional one-year periods or portions thereof.
A M/WBE goal is not assigned when purchasing from an approved purchasing cooperative or public entity.
Upon City Council's approval, this agreement will commence upon execution by both parties through September 30, 2023 with the option to renew
for three additional one-year periods. This action does not require specific City Council approval provided that the City Council has appropriated
sufficient funds to satisfy the City's obligations during the renewal term.
This project will serve ALL COUNCIL DISTRICTS
FISCAL INFORMATION / CERTIFICATION:
The Director of Finance certifies that funds are available in the current capital budget, as previously appropriated, in the Grants Cap Projects
Federal Fund for the ARPA for ITS initiatives project to support the approval of the above recommendation and execution of the purchase
agreement. Prior to any expenditure being incurred, the Financial Management Services and Information Technology Solutions Departments
have the responsibility to validate the availability of funds.
Submitted for Citv Manaaer's Office bv: Reginald Zeno 8517
Oriainatina Business Unit Head: Reginald Zeno 8517
Additional Information Contact: Jo Ann Gunn 8525
Taylor Dean 7648