HomeMy WebLinkAboutContract 42301 CITY SECRETARY 2-3 0
CO�CT W.
H 0Ot hoe rs
HELP 2 OTHERS AGREEMENT
This Help2Others Agreement ("Agreement") is made, entered and effective as of this 6th
day of September 2011 ("Effective Date") by and between Monarch Utilities I, L.P., a Texas
limited partnership, by Texas Water Services Group LLC, a Texas limited liability company, its
General Partner ("Monarch") and City of Fort Worth, acting by and through its Parks and
Community Services Department, Community Action Partners ("Agency").
BACKGROUND:
Monarch and Agency recognize the need for providing charitable assistance to persons in
financial, emergency or catastrophic distress to meet water related costs essential to their health
and welfare.
Monarch has developed the Monarch Utilities Help20thers Program ("H2O") as a
supplement to government and community aid programs designed to assist persons in financial,
emergency or catastrophic distress meet their water related costs and needs.
Agency is organized, inter alfa, to provide charitable assistance to persons in financial
distress and emergency and catastrophic situations, and Agency recognizes that H2O is a program
for providing charitable assistance to individuals.
Monarch will act merely as a conduit for contributions so that Agency and such other
nonprofit charitable organizations can use and apply such contributions for the charitable
purposes of H2O in meeting the needs for water service of the poor, disabled, sick, disadvantaged
and those in emergency or catastrophic situations.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. He1p2Others
Agency acknowledges that Monarch has established H2O and that said program is funded
by voluntary contributions from Monarch, its employees and third parties. The parties further
acknowledge that the Agency shall have sole discretion to establish and modify the policies and
procedures governing the collection and the disbursement of the funds contributed to H2O (the
H2O Funds") with the except -o related to emergency or catastrophic
situations. which shall be subjec j t®Aq KAILeoi pl ned in Section 3.6 of this Agreement..
CITY SECO&ARY
FT. WORTH, TX J9-20- 1 1 P03 :37 IN
2. Funds
Monarch from time to time may allocate a portion of the H2O Funds to Agency, although
Monarch shall have no obligation to do so. All funds so allocated will be disbursed to Agency in
the manner determined by Agency with the exception of disbursements related to emergency or
catastrophic situations, which shall be subject to the procedures outlined in Section 3.6 of this
Agreement. Agency will use said funds as provided herein.
Upon a termination of this Agreement, Monarch may request that Agency refund to
Monarch all H2O Funds not designated for distribution by Agency as of the effective date of
termination. Agency will forward payment to Monarch within thirty (30) days of receipt of
Monarch's request. Monarch reserves the right to cease distribution of the H2O Funds to Agency
at Monarch's discretion.
3. Fund Guidelines
With the exception of disbursements related to an emergency or catastrophic situation,
which shall be governed by the procedures set forth in Section 3.6, Agency shall have the sole
right to determine who receives the H2O Funds (such person being a "Beneficiary") subject,
however,to the following conditions and restrictions:
3.1 In order to be eligible to receive H2O Funds, a Beneficiary must fall within the
poverty level income bracket of one hundred percent (100%) or less according to the Federal
Poverty Level or qualify for assistance related to an emergency or catastrophic situation in
accordance with Section 3.6. Monarch reserves the right to change the poverty level eligibility
requirements at its sole discretion and will provide the Agency thirty (30) days' prior notice of
the same.
3.2 In no event shall the H2O Funds be used for the personal gain of any
employee, officer, director, representative or agent of Agency, or any family members of the
same. Exception: Employees of the agency or Monarch who meet the eligibility guidelines are
eligible for assistance from the program.
3.3 A Beneficiary must be the named person or full-time resident on the water
account for which assistance is being requested.
3.4 H2O Funds may only be used to pay Monarch water bills.
3.5 A Beneficiary will not be entitled to receive H2O Funds unless the
Beneficiary has executed an information release form granting Monarch the right to share
Beneficiary's payment history, account balance and other information with Agency and other
parties. All executed originals of the information release forms shall be kept on file at the offices
of the Agency.
3.6 In the event a proposed Beneficiary experiences an emergence or catastrophic
situation. the Agency shall require such proposed Beneticiary draft a statement which includes in
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detail the nature of the emergency, and the Agency shall submit such statement to Monarch for
its review and approval. If approved, Monarch will instruct the Agency via email or facsimile on
how much to pledge to such proposed Beneficiary. Such pledge shall occur only once per year.
If Monarch denies such request for assistance, the Agency shall so-notify the proposed
Beneficiary, and the proposed Beneficiary shall be prohibited from applying again for assistance
for twelve months from the date of the application that was denied.
3.7 All information received by Agency from Monarch with respect to a
Beneficiary (including, without limitation, payment history, account balance, address and
personal information) shall be treated as confidential information and shall not be disclosed to
any third party, other than as may be required by law. Notwithstanding the foregoing, Monarch
understands and agrees that the Agency is a public entity under the laws of the State of Texas,
and as such, is subject to various public information laws and regulations, including, but not
limited to, the Texas Public Information Act, Chapter 552 of the Texas Government Code (the
"Act"). Monarch acknowledges that, under the Act, the following information is subject to
disclosure: 1) all documents and data held by the Agency, including information obtained from
Monarch, and 2) information held by Monarch for or on behalf of Agency that relates to the
transaction of Agency's business and to which Agency has a right of access. If the Agency
receives a request for any documents that may reveal any of Monarch's proprietary information
under the Act, or by any other legal process, law, rule, or judicial order by a court of competent
jurisdiction, the Agency will utilize its best efforts to notify Monarch prior to disclosure of such
documents. The Agency shall not be liable or responsible in any way for the disclosure of
information not clearly marked as "Proprietary / Confidential Information" or if disclosure is
required by the Act or any other applicable law or court order. In the event there is a request for
such information, it will be the responsibility of Monarch to submit reasons objecting to
disclosure. A determination on whether such reasons are sufficient will not be decided by the
Agency, but by the Office of the Attorney General of the State of Texas or by a court of
competent jurisdiction.
4. H2O Report
Agency agrees to complete a H2O Report in the form and content provided by Monarch
(the "H20 Report") for each month during the term of this Agreement. The H2O Report shall be
sent to Monarch no later than the tenth (101h) day of the month following the month for which the
report was prepared. Monarch may from time to time amend the form, content and information
requested in the H2O Report by providing thirty (30) day advance written notice to Agency. The
monthly report is not required during periods when Agency does not have H2O Funds available
to disburse to Beneficiaries.
5. H2O File
Agency will maintain a file and record of each and every transfer of H2O Funds. Such
file shall contain, without limitation, the following:
5.1 A copy of all checks evidencing monies received from Monarch or third
parties or in conjunction with H2O; and
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5.2 A copy of each completed H2O Report
6. Right to Audit
Monarch and its designated agents, representatives, accountants and attorneys shall have
full access, at all reasonable times, to the properties, books and records of Agency related to the
administration of H2O for examination of Agency's administration of H2O Funds and
compliance with Section 7 below; provided however, that this Section shall not be interpreted as
granting Monarch the right to control how Agency determines which Beneficiaries will be
entitled to receive H2O Funds (except for disbursements related to an emergency or catastrophic
situation under Section 3.6) or how Agency governs its day to day business.
7. Compliance with Codes
Agency represents and warrants that either:
7.1 It is a state, county, municipal or non profit agency whose functions include
providing water assistance to low income individuals; or those individuals in emergency or
catastrophic situations; or
7.2 It is and shall continue to be during the term of this Agreement an
organization described in Section 501(c) (3) of the Internal Revenue Code and its Regulations as
they now exist or as they may be amended from time to time (the "Code"), is exempt from
federal income taxes under Section 501(a) of the Code, and contributions to Agency are
deductible from federal income taxes of the donor, within limits and guidelines of Section 170 of
the Code. Agency covenants and agrees that it will take no action or omit to perform any act that
will prejudice its status under said provisions of the Code.
7.3 Agency will immediately notify Monarch if at any time during the term of
this Agreement any of the representations made in this Section cease to be true.
8. Non-exclusive Agreement
Agency acknowledges that Monarch may enter into one or more agreements with other
charitable organizations, including charitable organization located within Agency's service area,
pursuant to which such organization will be eligible to participate in H2O.
9. Term and Termination
The term of this Agreement will begin upon the Effective Date and expire on December
31, 2012 with two, one-year renewal options. Within thirty (30) days prior to the expiration of
the then current term, either party shall provide written notice of its intent to renew the
Agreement. There shall be no automatic renewals. Either Agency or Monarch may terminate
this Agreement, with or without cause, upon thirty (30) days written notice to the other party.
10. Indemnity and Damages
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10.1 Indemnity. As part of the consideration for the Agreement, Monarch for
itself and its respective successors and assigns, agrees to indemnify and hold
harmless the Agency and its respective officers, directors, representatives and
agents, from every actual loss, damage, injury, cost, expense, claim,judgment or
liability of every kind or character, whether in contract, tort or otherwise, which
arises directly (but not indirectly) from Monarch's willful, intentional, reckless or
negligent (whether active, passive or gross) acts or omissions related to or arising
from this Agreement. This indemnity and hold harmless agreement will apply
whether such acts or omissions are conducted by Monarch or any agent of
Monarch, provided, however, that Monarch's liability to Agency for any loss,
damage, injury, cost, expense, claim, judgment or liability shall generally be
limited to that which is covered by existing policies of insurance of Monarch,
which are applicable and relevant to the work required by this Agreement;
provided further, however, that Monarch agrees to reimburse and indemnify
Agency for any and all defense costs that Agency may incur in defending against
claims or suits for which it is ultimately determined that Monarch and/or its agent
is solely liable, regardless of whether or not such defense costs are covered by
existing policies of insurance of Monarch.
As part of the consideration for the Agreement, the Agency for itself and its
respective successors and assigns, agrees to release Monarch and its respective
officers, directors, representatives and agents, from every actual loss, damage,
injury, cost, expense, claim, judgment or liability of every kind or character,
whether in contract, tort or otherwise, which arises directly (but not indirectly)
from Agency's willful, intentional, reckless or negligent (whether active, passive
or gross) acts or omissions related to or arising from this Agreement. This release
agreement will apply whether such acts or omissions are conducted by Agency or
any agent of Agency. Notwithstanding anything herein to the contrary, the
parties hereto agree that this Agreement does not serve as a waiver or any
immunity, liability limitation, or defense to which Agency is entitled under Texas
or other applicable law.
10.2 Damages. In no event shall Monarch be liable to Agency for any special,
indirect, consequential, exemplary or punitive damages.
11. Miscellaneous
11.1 Governing Law. This Agreement will be governed by the laws of the
State of Texas without regard to conflicts of laws principles. The parties mutually consent and
submit to the jurisdiction of the federal and state courts of Texas, and agree that any action, suit
or proceeding concerning this Agreement shall be brought only in the federal or state courts of
Texas. The parties agree that they will not raise in connection with any such suit, action or
proceeding brought in any federal or state court of Texas, any defense or objection based upon
lack of personal jurisdiction, improper venue, and/or inconvenience of forum. The parties
acknowledge that they have read and understand this clause and agree willingly to its terms.
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11.2 Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either party in exercising
any right, power or privilege under this Agreement will operate as a waiver of such right, power
or privilege. No single or partial exercise of any such right, power or privilege will preclude any
other or further exercise of such right, power or privilege or the exercise of any other right,
power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right
arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for which it is given;
and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of
such party or of the right of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement.
11.3 Binding Effect; Delegation of Duties Prohibited. This Agreement
inures to the benefit of, and is binding upon, the parties hereto and their respective successors,
assigns, heirs and legal representatives, including any entity with which Monarch may merge or
consolidate or to which all or substantially all of its assets may be transferred. The duties and
covenants of the Agency under this Agreement, being personal, may not be delegated.
11.4 Notices. Whenever it is provided in this Agreement that any notice,
demand, request, consent, approval, declaration or other communication be given to or served
upon any of the parties by another, such notice, demand, request, consent, approval, declaration
or other communication will be in writing and will be deemed to have been duly given (i) when
received if personally delivered, (ii) when transmitted if transmitted by telecopy or electronic or
digital transmission method (except that telecopies or electronic or digital transmissions
transmitted after 5:00 p.m. in the recipient's time zone will be deemed delivered the next
business day), (iii) the business day after it is sent, if sent for next business day delivery to a
domestic address by a nationally recognized overnight delivery service (i.e. Federal Express) and
(iv) three business days after it is sent, if sent by certified or registered mail, return receipt
requested. In each case notice will be sent to:
If to the Monarch:
Monarch Utilities I, L.P.
Help2Others Program
12535 Reed Road
Houston, Texas 77478
Facsimile: 281-207-5940
If to Agency:
City of Fort Worth
Parks and Community Services Department
Community Services Division
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115-1499
Facsimile: 817-392-5772
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or at such other address as the intended recipient will from time to time designate by written
notice delivered in accordance herewith.
11.5 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties with respect to subject matter hereof and supersedes all prior
agreements and understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an agreement in
writing signed by each of the parties hereto.
11.6 Section Headings and Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction or
interpretation. All references to "Section" refer to the corresponding Section of this Agreement
unless otherwise specified. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly provided, the word
"including"does not limit the preceding words or terms.
11.7 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or unenforceable
only in part or degree will remain in full force and effect to the extent not held invalid or
unenforceable.
11.8 Attorney's Fees. In the event of any dispute and/or legal action arising
from an interpretation and/or the performance of any of the provisions of this Agreement, the
parties hereby agree that the prevailing party shall be awarded reasonable attorney's fees and
costs
11.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date above first written above.
MONARCH UTILITIES I, L.P., CITY OF FORT WORTH
By Texas Water Services Group LLC,
a Texas limited liability company, its
General Partner
Charles W. Profilet, Jr. 5� us Alanis
President Assistant City Manager
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APPROVED AS TO FORM
AND LEGALITY:
By:
Denis C. McElroy
Assistant City Attorney
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH TX
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M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA F°R�1'
COUNCIL ACTION: Approved on 8/2/2011 -Ordinance No. 19823-08-2011
DATE: 8/2/2011 REFERENCE C-25065 LOG NAME: 80SOUTHWEST WATER-
NO.: (Revised) 2011 - REVISED
CODE: C TYPE: NOW PUBLIC NO
CONSENT HEARING:
SUBJECT: Authorize Execution of an Agreement for Acceptance of Funds from Monarch Utilities I,
LP in an Amount Up to $15,000.00 for Fiscal Year 2011 and Up to $50,000.00 Each
Fiscal Year Thereafter for a Water Utility Assistance Program and Adopt Appropriation
Ordinance (NO COUNCIL DISTRICT)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize acceptance of Water Utility Assistance Program funds from Monarch Utilities I, L.P., in
an amount up to $15,000.00 for the remainder of Fiscal Year 2011 and up to $50,000.00 in future
fiscal years;
2. Authorize execution of an Agreement with Monarch Utilities I, L.P., for administration of a Water
Utility Assistance Program by the Community Action Partners in the Parks and Community Services
Department; and
3 Adopt the attached appropriation ordinance, increasing estimated receipts and appropriations in
the Grants Fund by up to $15,000.00 for Fiscal Year 2011, subject to receipt of grants.
DISCUSSION:
Monarch Utilities I, LP (Monarch), provides water services in the City of Blue Mound in Tarrant
County. The company has developed a water utility assistance program to assist its low-income
customers who are experiencing financial distress to meet their water utility costs.
The Community Action Partners (CAP) in the Parks and Community Services Department serves as
the designated community action agency for all of Tarrant County in accordance with federal law.
CAP administers programs funded by Community Services Block Grants and the Comprehensive
Energy Assistance Program as well as utility assistance programs funded by utility companies.
Under the proposed contract, CAP will process applications, determine income eligibility and
administer the funds. Bill assistance under the contract will be available to Monarch customers only.
Monarch has informed CAP that funds of up to $15,000.00 are available for the remainder of Fiscal
Year 2011 and that up to $50,000.00 will be available in future fiscal years. This Agreement will begin
on execution and continue through December 31, 2012 with two, one-year renewal options. Either
party may terminate the contract following thirty days notice.
4ttp:Happs.cfwnet.org/council packet/mc review.asv?ID=15719&councildate=8/2/2011 A/9/int I
M&C Reyiew Page 2 of 2
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above
recommendation and adoption of the attached appropriation ordinance, funds will be available in the
current operating budget, as appropriated of the Grants Fund.
TO _Fund/Account/Centers FROM Fund/Account/Centers
GR-76 451820080495412000 $15,000.00
_GR76 5XXX)_CX 080495412010 $15,000.00
Submitted for City Manager's Office by: Susan Alanis (8180)
Originating Department Head: Richard Zavala (5704)
Additional Information Contact: Sonia Singleton (5774)
ATTACHMENTS
v2 80SOUTHWEST WATER-2011 AO.doc
httn://anns.cfwnet.ori!/council nacket/mc review.asn?ID=15719&councildate=8/2/2011 9/9/2011
Ordinance No.
AN ORDINANCE INCREASING THE ESTIMATED RECEIPTS AND APPROPRIATIONS
IN THE GRANTS FUND IN THE AMOUNT OF $15,000.00, SUBJECT TO RECEIPT OF A
GRANT FROM MONARCH UTILITIES I, L.P., FOR THE PURPOSE OF FUNDING A
WATER UTILITY ASSISTANCE PROGRAM; PROVIDING FOR A SEVERABILITY
CLAUSE; MAKING THIS ORDINANCE CUMULATIVE OF PRIOR ORDINANCES;
REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN
EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS:
SECTION 1.
That in addition to those amounts allocated to the various City departments for Fiscal Year 2010-2011 in the
Budget of the City Manager, there shall also be increased estimated receipts and appropriations in the
Grants Fund in the amount of$15,000.00, subject to receipt of a grant from Monarch Utilities I, L.P., for the
purpose of funding a water utility assistance program.
SECTION 2.
That should any portion, section or part of a section of this ordinance be declared invalid, inoperative or void
for any reason by a court of competent jurisdiction, such decision, opinion or judgment shall in no way
impair the remaining portions, sections, or parts of sections of this ordinance, which said remaining
provisions shall be and remain in full force and effect.
SECTION 3.
That this ordinance shall be cumulative of Ordinance No.19355 and all other ordinances and appropriations
amending the same except in those instances where the provisions of this ordinance are in direct conflict
with such other ordinances and appropriations, in which instance said conflicting provisions of said prior
ordinances and appropriations are hereby expressly repealed.
SECTION 4.
This ordinance shall take effect upon adoption.
APPROVED AS TO FORM AND LEGALITY:
Assistant City Attorney
ADOPTED AND EFFECTIVE: