HomeMy WebLinkAboutContract 60467CSC No. 60467
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This CONSULTING SERVICES AGREEMENT ("Ab eement") 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 and Solutions, LLC ("Consultant"), a Texas Corporation, as executed by
Dave Yanke, its duly authorized President, 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 Consulting Services
2. Exhibit A- Scope of Services and Compensation Schedule
All Exhibits attached hereto are incorporated herein and made a part of this Ab eement for all purposes. In the
event of any conflict between the documents, the terms and conditions of this Consulting Services Agreement
shall control.
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The Scope of Services represents an overall project by the City to Retail/Wholesale Rate Training and
On Call Financial and Rate Consulting Services as identified in Exhibit "A", attached and incorporated into
this Agreement.
Consultant warrants that it will exercise reasonable skill, care and diligence in the performance of its
services and will carry out its responsibilities in accordance with customarily accepted professional practices
and applicable laws. Except for the express representations and wananties set forth hereinabove and otherwise
in this Ab eement, Consultant does not make any other express or implied warranties or representations of any
kind whatsoever relating to this Agreement or the Services, including any implied warranty of inerchantability
or fitness for a particular purpose.
2. TERM.
This Agreement shall commence upon the date of full execution ("Effective Date") and shall expire
September 30, 2024, unless terminated earlier or extended in accordance with the provisions ofthis Agreement
or agreed upon by written amendment to this Agreement by both parties.
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The City shall pay Consultant an amount not to exceed $75,000 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 perform professional services, as outlined in the "Scope of Services, up to the not to
exceed amount as requested by the City. 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
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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.
4. TERMINATION.
4.1. Written Notice.
The City or Consultant may terminate this Ab eement at any time and for any reason by
providing the other party with 30 days written notice of terminarion.
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 Obli�ations ofthe 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 Ciiy with services requested by the City and in accordance with this Agreement
up to the effective date of termination.
5. DISCLOSURF OF CONFLICTS AND CONFIDENTIAL INFORNLATION.
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
Informarion 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. RIGHT TO AUDIT.
Consultant agrees that the City shall, until the expiration of three (3) years after final payment under
this Ab eement, have access to and the nght to examine at reasonable times any directly pertinent books,
documents, papers and records of the Consultant involving transactions relating to this Ab eement 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,
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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.
The audit rights conferred by this section shall not permit the City to access records related to the
pricing of fixed-price or lump sum amounts, the build-up of ab eed 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 Ab eement, Consultant shall have the exclusive
nght 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, i,TABILITY AND INDEMNiFICATION.
CONSULT ANT SHALL RELEASE, DEFEND, INDENINIFY 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 DEATI� AND
THIRD-PARTY PROPERTY DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACT
OR OMISSION OF CONSULTANT, ITS OFFICERS, AGENTS, EMPLOYEES, OR
SUBCONTR.ACTORS IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. THE
CONSULT ANT 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 INDENINIFY 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 SERVICES UNDER THIS AGREEMENT. CONSULTANT SHALL NOT BE
OBLIGATED TO DEFEND OR INDEMNIFY CITY AND ITS OFFICERS, AGENTS AND
EMPLOYEES FOR THEII2 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
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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
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.
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Consultant shall provide the City with certificate(s) of insurance documenting policies of the following
coverage limits that are to be in effect prior to commencement of any services pursuant to this Agreement:
10.1 Covera�e 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 Bodily injury per occurrence
$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. It should be noted that the
Consultant has no owned vehicles, only hired and non-owned vehicles. Therefore,
there will be no coverage on "owned vehicles".
(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
accident/occurrence, $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
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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
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 docuinentation shall not
constitute a waiver of the insurance requirement. A minimum of thirty (30) days' notice of
cancellarion of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable
in the event of non-payment of premium. Such terms shall be endorsed onto Consultant's
insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000
Throclanorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address.
10.3 Waiver of SubroQation for Propertv Insurance.
The City and Consultant waive all rights against each other and their officers, officials,
d'uectors, 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. CQMPLrANCE WITH LAWS, ORDINANCES, RULES AND REGULATiONS.
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 reb lations,
Consultant shall promptly desist from and correct the violation.
12. NON-DiSCRIMINATiON COVENANT.
Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as
part of the considerarion 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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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 confinnation of the transmission, or (3) received by the other party
by United States Mail, registered, return receipt requested, addressed as follows:
To The CTTY:
City of Fort Worth
Chris Harder, P.E.
200 Texas Ave
Fort Worth, Texas 76102
Chris. Harder(c� fortworthtex as. eov
817.392.5020
To CONSULTANT:
Richard Campbell
275 W. Campbell Rd, Suite 440
Richardson, TX 75080
RCampbell(�v,Ne�vGenStrategies.net
972-528-7158
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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
respecrive right to insist upon appropriate performance or to assert any such right on any future occasion.
16. GOVERNiNG LAW/ VENLTF.
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. SEVERABiLITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired.
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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 govemmental authority,
transportation problems and/or any other similar causes.
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Headings and ritles used in this Agreement aze for reference purposes only and shall not be deemed a
part of this Agreement.
20. REVIEW UF COUNiEL.
The parties aclmowledge that each party and its counsel have reviewed and revised this Agreement
and that the normal rules of construction to the effect that any ambiguities aze to be resolved against the drafting
pariy shall not be employed in the interpretation of this Agreement or exhibits hereto.
21. AMENDMENTS/ MODTF'fCATTONS/ F.XTF.NSTONS_
No extension, modif'ication or amendment of this Agneement shall be bindin.g upon a pariy 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. F,NTiRF.TY nF AGRF.F.MF.NT.
This Agreement contains all of the covenants, statements, representations and promises agreed to by
the parties. To the eatent of any conflict, this Agreement supersedes the terms, conditions, aud representations
set forth in the Ciiy's Request for Proposals, Consultant's Proposal and revised cost. No agent of either party
has authority to make, and the paraes shall not be bound by, nor liabie for, any covenant, statement,
representation or promise not set forth herein. The parties may amend this Agreement only by a written
amendment executed by both parties.
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The person sigung this agreement hereby warrants that he/she has the legal authority to execute this
agreement on behalf of the respective parry, and that such binding authority has been granted by proper order,
resolurion, ordinance or other authorization of the entity. The other party is fully entitled to rely on this
warraniy and representation in entering into this Agreement.
IN WTTNESS WHEREOF, this Agreement shall be effective on the date signed by the City Secretary
below.
C1TY UF FURT WURTli NEWGEN STRATEGIES AND SULUTIUNS, LLC
r
DAhq Bu� l� o � v�. �`� �����.
Dana Burghdoff (Nov �', 2023 13:12 CST)
Dana Burghdoff Richard Campbell,
Assistant City Manager principal/Managing Director - Water
Date: � � / '7 / � �
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APPROVAL RECOMNIENDED:
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Christopher Ha der (Nov 8, 2023 09:59 CST)
Chris Harder, PE
Fort Worth Water Department Director
APPROVED AS TO FORM AND LEGALITY:
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DBlack (Nov 9, 2023 17:41 CST)
Doug Black
City Attorney
ATTEST:
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Jannette Goodall
City Secretary
NO M&C Required
Contract Compliance 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.
�
Matt Thurber
Manager
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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EXHIBIT A
Scope of Work and Compensation Schedule
GENERAL SERVICES: NewGen will perform fmancial and rate consulting services on an as needed basis,
in accordance with generally accepted principles. In general, they will consist of the following, but this list is not
all inclusive:
1. Answer rate-related and financial questions from staff;
2. Assist the City in performing any special rate analysis or utility finance projects;
3. Assist with updates and additions to fmancial models;
4. Assist with the preparation of presentations and presentation materials; and
5. Attend meetings to support Department Staff upon request.
TRAINING: NewGen will render the following professional services in connection with the 2025 water and wastewater rate
shxdy, as needed.
RetaiUWholesale Rate Training: NewGen will provide additional training for Department staff as needed to ensure that all
costs incurred to provide water and wastewater service are recovered from the proposed user rates and charges using the Utility and
Cash-Needs Basis, existing rate models and rate schedules, and data for the models as provided by Department Staff: NewGen will
support Department staff to continue to establish an equitable rate structure, detemune the appropriate rate components and develop a
methodology for allocating the revenue requirements to the applicable rate components by providing training support if needed.
Deparhnent staff also may need training in rate design approaches. Training will include a high-level summary using the Department's
current Wholesale and Retail Rate Models to guide Department Staff.
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COMPENSATION
Position
Consultant
Senior Consultant
Manager
Senior Manager
Principal
Pariner
Intern
Administrative Services
Rates for In-House Services and Milea�e
Hourly Rate
Min
160
170
195
225
250
265
Max
170
195
225
280
405
405
150
130
Milea�e
Standard IRS Rates
Tech Charges
8.50 per hour
OTHER DIRECT EXPENSES:
Other direct expenses are reimbursed at actual cost rimes a multiplier of 1.15. They include outside printing and
reproduction expense, communication expense, travel, transportation and subsistence away from the NewGen office.
For other miscellaneous expenses directly related to the work, including costs of laboratory analysis, test, and other
work required to be done by independent persons other than staff inembers, these services will be billed at cost times
a multiplier of 115. For Resident Representative services performed by non-NewGen employees and CAD services
performed In-house by non-NewGen employees where NewGen provides workspace and equipment to perform such
services, these services will be billed at cost times a multiplier of Z.O. This markup approximates the cost to NewGen
if a NewGen employee was perfornung the same or similar services.
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