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HomeMy WebLinkAboutRFP - Utility Rate Consulting and Financial AnalysisPage 1 of 16 REQUEST FOR PROPOSALS (RFP) UTILITY RATE CONSULTING AND FINANCIAL ANALYSIS CITY OF BOZEMAN Bozeman, MT City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 AUGUST 2023 Page 2 of 16 NOTICE IS HEREBY given that the City of Bozeman (City) is seeking proposals from firms to to serve as the Consultant of Record for Water, Sewer and Stormwater Rates (hereinafter called firm) for a five-year period. The selected firm will be expected to provide specific rate studies, review and provide advice on rate modeling and rate model maintenance, develop financial plans, develop new models, conduct cost of service analysis for Water and Sewer, and provide advice and consultation on Utility related financial issues, as needed. Copies of the Request for Proposals are available on the City’s website. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address below. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. Deliver RFPs via email to the City Clerk by August 24, 2023 at 4:00 p.m. MDT. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. The email address for submission is: agenda@bozeman.net NON-DISCRIMINATION AND EQUAL PAY The City of Bozeman is an Equal Opportunity Employer. Discrimination in the performance of any agreement awarded under this RFP on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. In addition, pursuant to City Commission Resolution 5169, the entity awarded a contract under this RFP and any subcontractors must abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State Page 3 of 16 of Montana Equal Pay for Equal Work “best practices” website, or equivalent “best practices” publication and has read the material. Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk (406) 582-2321, agenda@bozeman.net. Questions relating to the RFP should be directed to: Melissa Hodnett, Finance Director, (406) 582- 2318, mhodnett@bozeman.net. DATED at Bozeman, Montana, this August 2, 2023. Mike Maas City Clerk City of Bozeman For publication on: Saturday, August 5, 2023 Saturday, August 12, 2023 Page 4 of 16 I. INTRODUCTION The City of Bozeman (Owner), is seeking proposals from firms to serve as the Consultant of Record for Water, Sewer and Stormwater Rates (hereinafter called firm) for a five-year period. The Owner intends to enter into a contract with the selected firm that will include performing specific rate studies, reviewing and providing advice on rate modeling and rate model maintenance, developing financial plans, developing new models, conducting cost of service analysis for Water and Sewer, and providing advice and consultation on Utility related financial issues, as needed. This RFP shall not commit the Owner to enter into an agreement, to pay any expenses incurred in preparation of any response to this request, or to procure or contract for any supplies, goods or services. The Owner reserves the right to accept or reject all responses received as a result of this RFP if it is in the Owner’s best interest to do so. This procurement is governed by the laws of the State of Montana and venue for all legal proceedings shall be in the 18th Judicial District Court, Gallatin County. By offering to perform services under this RFP, all Submitters agree to be bound by the laws of the State of Montana and of the Owner, including, but not limited to, applicable wage rates, payments, gross receipts taxes, building codes, equal opportunity employment practices, safety, non-discrimination, etc. II. PROJECT BACKGROUND AND DESCRIPTION Bozeman is the fourth largest city in Montana, with 53,293 residents. Bozeman sits in the center of Gallatin County, flanked by the Bridger Mountains and Custer Gallatin National Forest, just south of the Headwaters of the Missouri River. This diverse Rocky Mountain landscape creates easy access to year-round outdoor activities for Bozeman residents including hiking, mountain biking, climbing, camping, fishing, and downhill and cross-country skiing. Bozeman’s excellent access to public lands and year-round outdoor recreation activities. The lifestyle has attracted an influx of new residents, increasing population by approximately 43% since 2010. The City is organized under a city manager/city commission form of government and is served by a five member Commission. The City provides a full range of municipal services including water, water reclamation (sewer) and stormwater operations to the City and Montana State University. Water, Water Reclamation (Sewer), and Stormwater Plans & Projects The following City Facilities plans are located on the website at: Facility Plans | City Of Bozeman. • 2017 Water Facility Plan Update • 2015 Wastewater Collection Facilities Plan Update (update in progress) • 2008 Stormwater Master Plan (update in progress) • 2023 Water Reclamation Facilites Plan Impact fee studies for Water and Water Reclamation were last completed in 2018 and updated studies are currently underway. Page 5 of 16 Over the next five years, the City anticipates spending over $120 million on various water, water reclamation and stormwater infrastructure projects, much of which will be debt funded. The City’s latest Capital Improvement Plan (CIP) is located on the City’s website at: Budget and Financial Reports | City Of Bozeman. Bozeman, Mondana – Code of Ordinances The City’s Code of Ordinance contains information related to how utility rates and charges are to be calculated in Chapter 40 - UTILITIES | Code of Ordinances | Bozeman, MT | Municode Library. The Code also contains information and regulations around impact fees at: DIVISION 9. - IMPACT FEES | Code of Ordinances | Bozeman, MT | Municode Library. The City updates its fee schedule regularly through City Commission resolution, which includes water, sewer, and stormwater rate setting. Current fees are available on the City website at: Utilities Services | City Of Bozeman. III. SCOPE OF SERVICES The City of Bozeman is seeking proposals from qualified firms to provide water/sewer/stormwater rate consulting services for the next five years. The successful firm will be expected to perform all of the normal duties associated with providing advice and consultation on all of the City’s water/sewer/stormwater rate issues during the contract period, including, but not limited to, specific rate studies, review and advice on rate modeling and rate model maintenance, develop financial plans, develop new models if requested, and conduct cost of service analyses for Water, Sewer and Stormwater. A task based authorization with a scope of work and proposed fee (either time and materials or fixed fee) shall be negotiated for needed services during the life of the agreement. Specific tasks anticipated include: 1. Utility Rate Models / Rate Design – The City maintains 10-20 year water, sewer and stormwater Utility rate models to determine annual revenue required and associated rate increases. Upon implementation of this contract, the City will need new rate models developed for water, sewer, and stormwater that reflect the current organization of expenses (capital and non-capital) and provide the flexibility to run a variety of funding scenarios as operating and capital expenses change. The consultant will develop the models with guidance from the City’s finance department and provide expert advice and assist the City in updating its rate models as well as model specific scenarios as needed by the City. The City desires new rate models to be ready for CIP input by the end of calendar year 2023. (1) The selected consultant must provide a comparison of current and alternative water ,sewer and stormwater rates from surrounding utilities. i) Specific Issues for Consideration: The selected consultant must develop a utility rate mode by addressing, at a minimum, the following requirements: ii) Reporting: structure; • Consistency between rate schedules and fee schedules; • Consumption/revenue elasticity based on any proposed rate Page 6 of 16 increases/decreases; • Cost of Service Analysis (Water , Wastewater & Stormwater) - The City desires to ensure that, to the extent practical, it recovers from each customer the cost of providing service to that customer. The cost of service includes recovery of all operating costs, amounts necessary to maintain reasonable operating reserves after funding operations, debt service, and capital projects. Furthermore, the City desires to ensure that its customer classifications are appropriate and incorporate the costs of water conservation programs into the rate model. The cost of service study will define and separate fixed and variable costs. The study must identify costs to be allocated across all customer classes and those costs that are specific to a class. The most recent cost of service analysis was completed in 2019. • Conservation program costs and avoided costs; • Aid to construction costs from development impact fees; • Aid to future supply costs from payment of cash-in-lieu of water rights; and • Low income rates and charges. iii) Rate Design Investigation: Utility rate modeling, and associated long-range forecasting of revenue and expenses, necessitates careful scrutiny of available data upon which a study is predicated so that the model can be implemented with confidence and with reasonable certainty of fairness and equity. Evaluation of accepted policies, practices and procedures to ensure model reliability, predictability and rate stability over the long term is essential for model usefulness. Accordingly, the selected consultant must meet with City staff to review and discuss available documentation including, but not limited to, utility billing records, historical budget documents and audit reports, resolutions, policies, operation and maintenance practices. iv) Evaluation: Specifically, the selected consultant shall review, analyze, validate the reasonableness, and recommend changes where appropriate for the following: • Identify largest users and determine if users are being charged under the appropriate rate schedule. • Repair/Replacement Funding Methodology, considering long-term capital improvement needs, debt service opportunities and associated funding sources/levels; and • Water Conservation and Water Supply expansion funding, considering best practices adopted by utilities in the region. Page 7 of 16 (2) The selected consultant must provide a comparison of current and alternative water ,sewer and stormwater rates from surrounding utilities. (3) Analyze and discuss impact of existing and future capital improvements and water supply acquisition. v) Reporting: service. (4) Analyze existing rate and fee structure and recommend alternatives based on findings. (5) The selected consultant must advise the City on industry-accepted methodologies for allocating costs to the various customer classes. The selected consultant must also provide a breakdown of these expenses and show how they relate to providing water services. 2. Cost of Service Analysis (Water , Wastewater & Stormwater) - The City desires to ensure that, to the extent practical, it recovers from each customer the cost of providing service to that customer. The cost of service includes recovery of all operating costs, amounts necessary to maintain reasonable operating reserves after funding operations, debt service, and capital projects. Furthermore, the City desires to ensure that its customer classifications are appropriate and incorporate the costs of water conservation programs into the rate model. The cost of service study will define and separate fixed and variable costs. The study must identify costs to be allocated across all customer classes and those costs that are specific to a class. The most recent cost of service analysis was completed in 2019. (6) Evaluate existing rate structure with regard to changing patterns of consumption, growth in customer base, annual revenues from rates, price elasticity of consumption, demands on rate revenue (from Cost of Service Study) and the effects of conservation on annual revenues any future water resources needs. (7) Examine adequacy of reserves for operating revenues and capital projects to determine sufficient levels to offset low consumption/revenue years while also reducing spikes in annual rate increases. (8) Examine the City’s use of debt financing for capital improvements and make recommendations related to its uses and limitations relative to maintaining a proper balance for debt coverage and rate stabilization over this five-year period. (9) The selected consultant must recommend a structure for the proposed rate schedules on the basic premise that each customer should be classified and served under a schedule that will cover all costs of that customer’s service plus return a reasonable margin for proper operating reserves, capital improvements, adequate supplies, and contributions to general administrative costs. (10) For proposed rate schedules, The selected consultant must provide a sampling of a minimum of three (3) customers per classification showing the difference of charges between existing and proposed rates. The selected consultant must also show a sampling of data for one calendar year by month for each customer. (11) The selected consultant must provide a comparison of current and alternative water and sewer rates from surrounding utilities. 1. Identify largest users and determine if users are being charged under the appropriate rate schedule. vi) Reporting: The selected consultant must present the findings and conclusions of the tasks in the rate study final report in a clear and concise manner. The report must include detailed recommendations for changes, if any, to current practices and/or procedures. The selected consultant must also provide a schedule for timely and coordinated execution of all essential aspects of the report. A written report supporting the recommendations is required and presentation to management. A summary presentation to the Bozeman City Commission is also required during a regularly scheduled public meeting. Material to support City rate hearings must be included. 3. Cost of Service Analysis (Water & Wastewater) - The City desires to ensure that, to the extent practical, it recovers from each customer the cost of providing service to that customer. The cost of service includes recovery of all operating costs, amounts necessary to maintain reasonable operating reserves after funding operations, debt service, and capital projects. Furthermore, the City desires to ensure that its customer classifications are appropriate and incorporate the costs of water conservation programs into the rate model. The cost of service study will define and separate fixed and variable costs. The study must identify costs to be allocated across all customer classes and those costs that are specific to a class. The most recent cost of service analysis was completed in 2019. i. Planning Criteria (Anticipated Tasks): 1. Review proposed capital improvement plan(s) and total projected project costs; 2. Review financial history, including revenues and expenses, and current rate and fee structure; 3. Develop requisite Revenue Requirement analysis of test period system revenue and expenses as the foundation of the cost of service class analysis; 4. Identify annual and peak requirements and usage by customer class; 5. Examine customer database and review current customer classifications; 6. Identify water conservation related costs and determine appropriate classification of costs; and 7. Identify largest users and determine if users are being charged under the appropriate rate schedule. ii. Reporting: The selected consultant must present the findings and conclusions of each task and resulting recommendations in the cost of service study final report in a clear and concise manner. A written report is required and periodic presentation to management. A summary presentation to the Bozeman City Commission is also required during a regularly scheduled public meeting. 4. Master Planning / Public Facility Planning Financial Analysis – Within the five year contract term the City anticipates updating the Water Facility Plan. The rate consultant must work effectively with consultants contracted to perform these analyses to provide financial information included in the various planning documents. The rate consultant may be asked to work on other master planning or facility planning projects in the five year period. 5. Other on-going consultation – Consultant may be requested to provide expert advice and consultation on various issues related to water/sewer/stormwater rates. Deliverables Deliverables under this contract shall include memos, reports, analyses, rate models, possible other interactive tools and power point presentations where the firm is requested to provide presentations to City Commission or citizen advisory groups and committees. The deliverables may be included in various City reports and presentations, including but not limited to budget documents, financial reports, or City bond documents, statements and continuing disclosure submittals. Schedule The City anticipates having the successful proposer begin work as soon as a contract is executed. Timelines for each project/task are to be determined, but will fall within the five year contract timeline. IV. PROPOSAL REQUIREMENTS Firms interested in providing the services described above are requested to submit the following information. Responses to each item should appear in the same order as in this RFP and should identify the item to which the response applies. Proposals are to include, but not necessarily be limited to, the content listed below. The volume, or size of the proposal, should be consistent with the relative size of the project. Concise proposals without needless duplication are encouraged. a) Letter of transmittal. Include an introductory letter expressing interest in the project. The letter should include name of firm, RFP contact person, email address, mailing address, telephone number, and must be signed by person authorized to bind the firm. b) Project Description and Approach. Provide a statement of the goods and/or services to be provided including a detailed explanation of how the goods and services are to be provided. c) Project Team. List the experience and qualifications of staff who will be working on the project. Describe the applicable skills and accomplishments of the project manager. Confirm availability and commitment of named key staff to the project. If the project manager is not local, identify any local contact and describe how project management, coordination and communications with the City will be accomplished. Do not include persons who will not be working on the project. Include resumes at the back of the proposal which reflect education, registrations and experience of key staff. d) Related Experience. Provide project descriptions for up to five recent projects similar in nature to the proposed project, including completion dates, measures that indicate quality and successful project completion, and a client reference name and phone number. Indicate the involvement of proposed key staff on those or similar projects. Indicate the team’s familiarity with the local area. Provide any background information on the size, capability and location of the firm that may be beneficial. e) Cost Proposal. Provide a cost proposal to perform the scope of work to develop new water, sewer and stormwater 20-year rate models that reflect the City’s current rate strategy and City Commission fiscal and rate policy objectives. Include estimated person hours, labor costs and expenses for each task required to develop new rate models. Separate the cost of any proposed optional features in the rate models that will provide added value to the City. The format for the cost proposal is to be selected by the consultant. Include a listing of hourly rates for all employee classifications anticipated to work on rate consulting and/or financial analysis projects, as well as rates for non-labor direct expenses. Include similar information for any major subconsultants. The listed rates will be used in preparation of any future change orders. f) Affirmation of Nondiscrimination (see Appendix A) Non-completion of the Affirmation of Nondiscrimination is cause for disqualification of firms. V. TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS EVENT DATE/TIME Publication dates of RFP Saturday, August 5, 2023 Saturday, August 12, 2023 Deadline for receipt of proposals Thursday, August 24, 2023 by 4:00 p.m. MDT Evaluation of proposals TBD Interviews (if necessary) and Selection of consultants TBD With the exception of the advertising dates and advertised due date, the City reserves the right to modify the above timeline. Deliver RFPs via email to the City Clerk (agenda@bozeman.net) by August 24, 2023 at 4:00 p.m. MDT. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address agenda@bozeman.net. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. VI. AMENDMENTS TO SOLICITATION Any interpretation or correction of this request will be published on the City’s webpage. The deadline for questions related to this document is 5:00 p.m. MDT on August 17, 2023. VII. CONTACT INFORMATION Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk, (406) 582-2321, agenda@bozeman.net Questions relating to scope of services should be directed to: Melissa Hodnett, Finance Director City of Bozeman mhodnett@bozeman.net 406-582-2318 VIII. SELECTION PROCEDURE A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and may arrange interviews with the finalist(s) prior to selection. Selection may be made directly based on the written RFP submission. If interviews occur, the selection of finalists to be interviewed will be made by a selection committee representing the City of Bozeman. The selection of interview candidates will be based on an evaluation of the written responses to the RFPs. All submitted proposals must be complete and contain the information required as stated in the "Request for Proposals.” IX. SELECTION CRITERIA Proposals will be evaluated based on the following criteria: • Project Understanding and Approach Max. Points: 25 Score _____ Evaluation of understanding and approach includes, but is not limited to: - Understanding of City’s operations, water/sewer/stormwater systems and rate structure and funding needs - Approach or method of providing services to City including, but not limited to: modeling, dashboards and other tools to analyze, run scenarios and communicate rate options to internal and external stakeholders - Methods to ensure accountability and responsiveness to City • Firm Qualification and Experience Max. Points: 20 Score _____ Evaluation of firm’s qualification and experience includes, but is not limited to: - Recent relevant experience and general consultation services related to municipal water/sewer/stormwater rates - Adequacy of the firm’s resources devoted to consultation services - Quality of performance by the firm on previous and similar contracts • Qualification of Staff Assigned to Contract Max. Points: 25 Score _____ Evaluation of staff qualification includes, but is not limited to: - Qualification and experience of staff to be assigned to this contract - Availability and time commitment of staff - Ability to advise the City on trends, emerging issues and all matters relating to water/sewer/stormwater rates and development of related financial plans • Cost Max. Points: 30 Score _____ The proposal that accomplishes the stated objectives and tasks at the lowest cost will receive the highest points for this criterion. • Interview Score _____ If an interview is held, the City will recalculate the entire proposal and add points for interview performance (10 points available, if held). TOTAL SCORE __________ X. FORM OF AGREEMENT The Contractor will be required to enter into a contract with the City in substantially the same form as the professional services agreement attached as Attachment B. XI. CITY RESERVATION OF RIGHTS / LIABILITY WAIVER All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. A SUBMISSION IN RESPONSE TO THIS REQUEST FOR QUALIFICATIONS CONFERS NO RIGHTS UPON ANY RESPONDENTS AND SHALL NOT OBLIGATE THE CITY IN ANY MANNER WHATSOEVER. THE CITY RESERVES THE RIGHT TO MAKE NO AWARD AND TO SOLICIT ADDITIONAL REQUEST FOR QUALIFICATIONS AT A LATER DATE. A. This RFP may be canceled or any or all responses may be rejected in whole or in part, as specified herein, when it is in the best interests of the City. If the City cancels or revises this RFP, all Respondents who submitted will be notified using email. B. The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFP; to waive any minor irregularities, informalities, or failure to conform to the RFP; to extend the deadline for submitting proposals; to postpone award for up to 60 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFP and if multiple awards or phases are determined by the City to be in the public interest. C. The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. D. The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. E. The professional services contract between the City of Bozeman and the successful Contractor will incorporate the Contractor's scope of service and work schedule as part of the agreement (see Appendix B for form of professional services agreement. The professional services agreement presented to the Contractor may differ from this form as appropriate for the scope of services). F. This RFP does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. G. The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFP, all Contractors who submitted proposals will be notified using email. H. Projects under any contract are subject to the availability of funds. XII. NONDISCRIMINATION AND EQUAL PAY POLICY The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form provided, that it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, sexual preference, gender identity, or disability in fulfillment of a contract entered into for the services identified herein and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts it enters into in the fulfillment of the services identified herein. Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive. The City also requires each entity submitting under this notice shall affirm it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of Montana Equal Pay for Equal Work “best practices” website, or equivalent “best practices” publication and has read the material. XIII. MISCELLANEOUS A. No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of the City shall affect or modify any term of this solicitation. Oral communications or any written/email communication between any person and City officer, employee or agent shall not be considered binding. B. No Partnership/Business Organization. Nothing in this solicitation or in any subsequent agreement, or any other contract entered into as a result of this solicitation, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the respondent and the City. C. Employment Restriction and Indemnity. No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each Respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. D. Accessibility. Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator Mike Gray at 406-582-3232 or the City’s TTY line at 406-582-2301. E. Procurement. When discrepancies occur between words and figures in this solicitation, the words shall govern. No responsibility shall attach to a City employee for the premature opening of an RFP not properly addressed and identified in accordance with these documents. F. Governing Law. This solicitation and any disputes arising hereunder or under any future agreement shall be governed and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. XIV. ATTACHMENTS The following exhibits are incorporated in this RFP: Appendix A: Non-Discrimination Affirmation Appendix B: Form of Professional Services Agreement END OF RFP Attachment A NONDISCRIMINATION AND EQUAL PAY AFFIRMATION ____________________________________(name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, ____________________________________(name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of Montana Equal Pay for Equal Work “best practices” website, or equivalent “best practices” publication and has read the material. ______________________________________ Name and title of person authorized to sign on behalf of submitter Professional Services Agreement for Utility Rate Consulting Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, ____________, _______________, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _____ day of ______________, 202_, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Professional Services Agreement for Utility Rate Consulting Page 2 of 11 Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in Professional Services Agreement for Utility Rate Consulting Page 3 of 11 connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of Professional Services Agreement for Utility Rate Consulting Page 4 of 11 contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Professional Services Agreement for Utility Rate Consulting Page 5 of 11 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Professional Services Agreement for Utility Rate Consulting Page 6 of 11 Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Melissa Hodnett, Finance Director or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed Professional Services Agreement for Utility Rate Consulting Page 7 of 11 to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications for the City, Contractor must use both the City style guide when creating a design, and, as per recommendations found in Section 508 of the Rehabilitation Act, the content must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). Professional Services Agreement for Utility Rate Consulting Page 8 of 11 The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. Professional Services Agreement for Utility Rate Consulting Page 9 of 11 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the Professional Services Agreement for Utility Rate Consulting Page 10 of 11 date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer Professional Services Agreement for Utility Rate Consulting Page 11 of 11 than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney