HomeMy WebLinkAboutAgreement - Consulting for Renewable Fuel Standard Report & Compliance Assistance - Weaver and Tidwell, LLP.1316 COUNTY -CITY BUILDING
227 W.JEFFERSON BOULEVARD
SO[ JTH BF.ND_ INDIANA 46601-1 830
CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR
BOARD OF IC WORKS
December 10, 2019
Mr. David Bennett
Weaver and Tidwell, L.L.P.
24 Greenway Plaza, Suite 1800
Houston, TX 77046
RE: Consulting Agreement
Dear Mr. Bennett:
PHONE 574/235-9251
FAX 574/235-9171
The Board of Public Works, at its meeting held on December 10, 2019, approved the above
referenced agreement for renewable fuel standard reporting and compliance assistance in the
amount not to exceed $5,000.
Enclosed please find a copy of the agreement for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Martin, Clerk
Enclosure
GARY A. GILOT GENEVIEVE E. MILLER ELIZABETH A. MARADIK LAURA L. O'SULLIVAN THERESE J. DORAU
INTER -OFFICE MEMORANDUM
DEPARTMENT OF PUBLIC WORKS
DIVISION OF UTILITIES
TO: Members of the Board of Public Works
Eric Horvath, Director of Public Works
Clara McDaniels, Board of Public Works Attorney
Linda Martin, Clerk of Board of Public Works
FROM: Al Greek, Director of Utilities
Jacob M. Klosinski, Assistant City Engineer
SUBJECT: Agenda Request Form — Professional Services Agreement
Renewable Fuel Standard Reporting and Compliance Assistance
DATE: December 3, 2019
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The Division of Engineering and Division of Utilities are requesting the Board of Public Works'
approval of a Professional Services Agreement with Weaver and Tidwell, L.L.P. to provide reporting
and compliance assistance for the City of South Bend Renewable Fuel Standard program.
Background
In April 2019, the City of South Bend Utilities obtained its certification as a Renewable Fuel Standard
source provider from the United States Environmental Protection Agency. With the task of
administering the program, the Division of Utilities needs accounting and compliance assistance in
the early stages of the program to assist with the review of quarterly reporting and brokerage of the
Renewable Identification Numbers (RINs) that the Wastewater Treatment Plant is producing.
Renewable Identification Numbers (RINs) are serial numbers assigned to a batch of biofuel for the
purpose of tracking its production, use, and trading as required by the United States Environmental
Protection Agency's Renewable Fuel Standard implemented according the Energy Policy Act of 2005
and the Energy Independence and Security Act of 2007.
The City of South Bend currently uses the biofuel that it produces in the boiler for Digester No. 2, the
engine for Raw Sewage Pump #1, and a slow fill CNG Fuel Station at the Wastewater Treatment
Plant. The biofuel is produced through the Digester Gas Cleaning System (Guild Associates
Microgate Gas Processing Unit). Impurities are removed from the gas produced by Digester No. 2
and the resulting product gas is natural gas, pipeline quality methane. The Renewable Fuel Standard
only allows for RINs to be captured through the use of the biofuel for transportation purposes. The
City is moving aggressively to utilize more of the cleaned digester gas in Solid Waste refuse vehicles,
Wastewater fleet vehicles, and Organic Resources fleet vehicles to improve on the amount of biofuel
being used for transportation purposes. In turn, this allow for a greater amount of RINs available for
trading on the open market. Revenue from the program is intended for the operation and
maintenance of the system and to defray some of the program administration costs.
The funding source for the project is Utilities, Sewage Works Operations, Accounting (641-0630-
793.31-04). If there are any questions regarding the subject project, please contact Al Greek (Ext,.
4210) at the Division of Utilities or Jacob M. Klosinski (Ext. 9496) at the Division of Engineering.
wE",!aver
December 3, 2019
PRIVATE
Mr. Al Greek
City of South Bend Utilities
3113 Riverside Drive
South Bend, IN 46628
Dear Mr. Greek:
Austin Conroe Dallas a Fort Worth I Houston
Los Angeles Midland I New York City I San Antonio
City of South Bend Utilities (the "Company", "you", and "your") has requested that Weaver and
Tidwell, L.L.P. ("Weaver", "our", "us", and "we") provide technical support and regulatory
consulting services to the Company.
We are pleased to confirm our acceptance and our understanding of this engagement by means
of this letter.
Scope of Work
Our services will be performed in accordance with the Statements on Standards for Consulting
Services issued by the American Institute of Certified Public Accountants. We will provide you with
the following professional services ("Services"):
Assistance with Quarterly and Annual RFS Reporting
Weaver will assist the Company in preparing all quarterly and annual Renewable Fuel Standard
("RFS") reports, as applicable and required under Title 40, Part 80. This includes, but is not limited
to, the quarterly RFS Activity Reports and the RFS Annual Compliance Report. Reports prepared
by Weaver will be provided to an appropriate Company representative for review and approval.
Once approved, either a Weaver associate or a representative from the Company will submit the
reports to the EPA, via the Central Data Exchange.
EMTS Account Administration
All environmental credits related to the fuel programs under Title 40, Part 80 - including gasoline
sulfur credits, gasoline benzene credits and Renewable Identification Numbers ("RINs") - are
required to be generated, transacted and submitted for compliance (i.e., used) through the EPA
Moderated Transaction System ("EMTS"). Our team includes specialists with substantial experience
with EMTS. Weaver will assign a primary associate and at least one additional associate to work
directly with Company personnel as administrative support for completing transactions in EMTS.
Under the Company's direction, these EMTS specialists will be responsible for completing all day-
to-day transactions in EMTS and interacting with counterparty personnel, as needed. Our team
also cross-checks EMTS transactions with appropriate internal and counterparty documentation
(e.g., contracts, product transfer documents, etc.), to ensure that transactions are carried out
accurately.
Weaver and Tidwell, L.L.P.
24 Greenway Plaza, Suite 1800 I Houston, Texas 77046
Main: 713.850.8787 1 Fax:713.850.1673
'PAS AND X[)VISORS II WEAVER.COM
Mr. Al Greek
City of South Bend Utilities
December 3, 2019
Page 2 of 6
General Consultin
Weaver is available to assist you with general questions and providing information surrounding
certain regulatory requirements, upon request. This is inclusive of the following regulations: U.S.
Code of Federal Regulations, Title 40, Part 80 Subpart M (the Renewable Fuel Standard). On
occasion, it may be necessary to seek clarification from the applicable governing agency. In such
a case, the Company's name will remain confidential, unless express permission to disclose the
Company's name to the applicable agency has been granted. If we are not able to answer the
Company's specific question, or provide the level of clarification being requested, we will advise
as soon as practical.
Weaver is also available to assist the Company with all facets of fuels compliance on an ongoing
basis, as requested by you. Any such additional services will only be performed if they are
requested and our agreement to perform them is in writing, which may be the subject of a
separate engagement letter.
This engagement letter is exclusive of any agreement regarding attestation or Quality Assurance
Plan engagements required or requested under the U.S. Code of Federal Regulations, Title 40, Part
80.
David Bennett is the engagement partner and is responsible for supervising the engagement on
behalf of Weaver. The Company is responsible for (a) making all management decisions and
performing all management functions; (b) assigning a competent individual to oversee our
services; (c) evaluating the adequacy of the services performed; (d) evaluating and accepting
responsibility for the results of the services performed; and (e) establishing and maintaining internal
controls, including monitoring on -going activities.
No Warranties
Any and all implied warranties arising out of Services or the relationship between Weaver and the
Company are hereby expressly disclaimed and negated, in particular, but not by way of
limitation, we make no implied warranty of merchantability or fitness for a particular purpose.
Fees and Invoicing
The cost for performing work under this agreement is billable by the hour, and the hourly rates for
our personnel involved in performing the Services are shown in the fee schedule below. These
rates are subject to periodic review and may change without notice in the event that our regular
billing rates are increased.
- __.......
Level
.........
Rate Per Hour
Partner
475
Dir...................................................
_ �._..
Senior Manager
370
Manager
260
....
Senior Associate
$215
Associate
$185
Mr. Al Greek
City of South Bend Utilities
December 3, 2019
Page 3 of 6
Direct expenses related to travel, reproduction services, drafting, postage and shipping,
laboratory testing, and other such vendor services, supplies, or equipment will be billed at our
invoice cost. Time required for domestic travel is invoiced at half of standard fee rates. Time
required for international travel is invoiced at standard fee rates. Our personnel will use travel time
as productively as possible to the Company's benefit.
Our invoices for this engagement will be rendered each month as work progresses and are
payable on presentation. Our fee is based upon the complexity of the work to be performed and
the tasks required. For bills not paid within sixty (60) days of the billing date, a late charge will be
added to the outstanding balance. The late charge will be assessed at .5% on the unpaid balance
per month. If billings are not paid within 120 days of the invoice date, your account will be placed
on hold and we will stop work until your account is brought current, or we may withdraw from any
then -current engagement. It is understood that neither our fees nor the payment thereof will be
contingent upon the results of our Services.
The Company shall compensate us for our time (at our hourly rates) and expenses (including
reasonable and necessary attorney's fees) related to responding to any request or requirement
to provide assistance, give testimony, produce or review documents, or perform any other task or
incur any other expense as a result of legal process (such as a subpoena, summons, court order,
or administrative investigative demand) pertaining to this engagement.
Engagement Term
This engagement shall conclude upon the completion of the Services. The engagement may be
earlier terminated by either party for any or no reason. If the engagement is terminated, our
engagement will be deemed to have been completed upon written notification of termination
even if we have not completed our Services, and you agree to pay us for time expended and
expenses incurred through the date of termination.
Demobilization Expenses
In the event of early termination of the engagement by Company when we are not in breach of
any of our obligations, we shall discontinue our Services and shall proceed to cancel promptly all
existing orders, contracts, and subcontracts insofar as such orders, contracts, or subcontracts are
chargeable to the Company under this agreement. In such event, in addition to payment for
services and expenses through the date of termination, we shall be entitled to payment for our
reasonable and necessary time and expenses incurred in (i) demobilizing our own personnel (ii)
canceling such orders, contracts, and subcontracts.
Ethical Conflict Resolution
In the unlikely event that circumstances occurwhich we in oursole discretion believe could create
a conflict with either the ethical standards of our firm or the ethical standards of our profession in
continuing our engagement, we may suspend our Services until a satisfactory resolution can be
achieved or we may resign from the engagement. We will notify you of such conflict as soon as
practicable, and will discuss with you any possible means of resolving them prior to suspending
our Services.
Mr. Al Greek
City of South Bend Utilities
December 3, 2019
Page 4 of 6
Confidentiality
During the course of the performance of this engagement, the Company may disclose to us
information that is identifies as or which is otherwise categorized by law as proprietary,
confidential, or privileged. All such information shall be defined herein as "Confidential
Information", except that the following shall be excluded from the definition: any information that:
(1) is or becomes publicly known through no wrongful act or omission of Weaver; (2) is received
by us from a non-party hereto without similar restrictions and without breach of this agreement;
(3) is known by us prior to such disclosure by Company; or (4) is at any time developed by us
independently without the use of the Confidential Information disclosed hereunder. We agree to
maintain such Confidential Information using the same standard of care we use to protect our
own information of like importance and will not disclose such information to a third -party without
the prior consent of Company except as required by applicable law or regulation or as otherwise
set forth herein. We may be requested to make certain documents available to regulators,
government agencies, other outside parties. Access will be provided if required by applicable
law or regulation, or we will otherwise comply with any requirement for your notification and
consent prior to disclosure.
Except as required by applicable law or regulation, the Company shall not provide any third -
parties who have not signed this agreement any materials we may provide the company, without
our written consent.
Limitations on Liability and Indemnifications
Our recommendations and conclusions will be made to the best of our knowledge and belief
based on data and information made available to us at the time the Services are performed, and
upon a number of factors, which include but are not limited to: federal, state, and local laws,
rules, codes, regulations, and ordinances, market conditions, energy costs, wage rates, and
political climate. Changes in factors upon which the Services are based could affect the results.
To the extent that we may rely on third -party and Company information in conducting our
Services, are not responsible for and have no liability arising out of inaccuracies in the information
provided to us.
Our Services are solely for the benefit of the Company and it is the intent of Weaver and the
Company that there are no third -party beneficiaries to this agreement.
The Company agrees to protect, defend, indemnify and hold us (including each member of the
engagement team and all of our partners, heirs, executors, personal representatives, successors,
and assigns) harmless from and against any and all claims, demands, suits, losses, expenses
(including reasonable costs of defense, attorneys' fees and interest), damages, fines, penalties,
causes of action and liabilities of every type and character, including personal injury or death to
any person (including employees of either party to this Agreement) or loss or damage to any
personal or real property, caused by, arising out of or resulting from (i) the negligence (whether
by action or omission), recklessness, or willful misconduct of the Company, its officers or employees
with respect to the activities that are the subject of the Services, (ii) knowing misrepresentations
by the Company (including those representing they are acting on the Company's behalf); or (iii)
the Company's failure to comply with applicable law.
Mr. AI Greek
City of South Bend Utilities
December 3, 2019
Page 5 of 6
Our total aggregate liability to the Company for damages arising from work done under this
agreement will be limited to a sum not to exceed the amount paid, excluding reimbursable
expenses, by the Company to us for Services directly relating to the alleged act, omission, event,
or injury, whether such liability is based on principles of contract law, tort law, or otherwise. Both
the Company and Weaver agree that neither shall be entitled to recover from the other for any
indirect, special, punitive, multiple, exemplary, or consequential loss or damages, except as
provided under the Company's indemnification obligations as described herein.
You agree to only look to the limited liability partnership, Weaver and Tidwell, L.L.P., for satisfaction
of any claim or cause of action arising from our Services. In no event will our partners, directors,
employees, or agents be liable to you for any liability, damages, expenses, or losses of any nature,
caused by or resulting from our services or the use of our work product.
We shall not be liable to Company for consequences of events that are beyond our reasonable
control, including but not limited to, interference by third parties, changed conditions, labor strikes,
fires, thefts, or other losses, or acts of God.
Each of these limitation and indemnification provisions applies, even if they result in Weaver being
released in whole or in part from the consequences of our sole or concurrent negligence or other
fault.
Dispute Resolution Procedure
The parties agree that no claim arising out of or relating to this engagement or agreement shall
be filed more than two years after the earlier of the termination or conclusion of our engagement
or the performance of the Services in question. This limitation applies and begins to run even if
you have not suffered any damage or loss, or have not become aware of the existence or possible
existence of a dispute.
Any dispute between the parties arising from or relating to this engagement or agreement shall, if
negotiations and other discussions fail, be first submitted to mediation before resorting to litigation.
The parties agree to conduct any mediation in good faith and make reasonable efforts to resolve
any dispute by mediation. If the parties are unable to agree upon a mediator, either party may
invoke the mediation service of the American Arbitration Association (AAA) in accordance with
the provisions of the Commercial Mediation Procedures then in effect. The parties agree to
conduct the mediation in Houston, Texas, or another mutually agreed upon location, and each
party shall bear its own expenses, including attorney's fees and costs, except for the fees of the
mediator which shall be borne equally by the parties.
This agreement and all disputes between the parties shall be governed by, resolved, and
construed in accordance with the laws of the State of Texas, without regard to conflict -of -law
principles. Any action arising out of or relating to this engagement or agreement shall only be
brought in, and each party agrees to submit and consent to the exclusive jurisdiction of, the
federal or state courts situated in Tarrant County, Texas.
Each party hereby irrevocably waives any right it may have to trial by jury in any proceeding
arising out of or relating to this engagement or this agreement.
Mr. Al Greek
City of South Bend Utilities
December 3, 2019
Page 6 of 6
Whenever possible, this agreement shall be interpreted in such a manner as to be effective and
valid under applicable laws, regulations, or published interpretation, but if any term of this
agreement is declared illegal, unenforceable, or unconscionable, that term shall be severed and
the remaining terms of the agreement shall remain in force. Both parties agree that the court
should modify any term declared to be illegal, unenforceable, or unconscionable in a manner
that will retain the intended term as closely as possible.
Miscellaneous
We inform you that we have nonlicensee owners who may provide services pertaining to this
engagement.
We do not provide legal advice or services, and you should refer to appropriate counsel for
advice or services of that nature.
This agreement sets forth all of the agreed upon terms and conditions of our engagement with
the Company with respect to the matters covered herein. This agreement may not be amended
or modified except by further writing signed by all the parties.
Closing Remarks
We would be pleased to discuss this engagement letter with you at any time. If the preceding
engagement letter meets with your approval, please sign and return one copy of this letter as
project authorization, by e-mail or delivery. By signing below, the signatory represents that they
have been authorized by the Company to execute this agreement on its behalf.
We look forward to working with you on this important assignment and appreciate the opportunity
to offer this engagement letter for professional services.
l� " --�IdLot 11 J � , � .P.
Weaver and Tidwell, L.L.P.
David Bennett CPA, CFE, CFF, CITP
Partner, Energy Compliance Services
212.364.1881
RESPONSE:
This letter correctly sets forth the understanding.
Acknowledged and agreed on behalf of City of South Bend Utilities by:
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date December 3 2019
Department
Name Jacob M. Klosinski En :jgcering / Utilities
BPW Date December 10 2019 Phone Extension Ext. 9496
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Re uired Prior to Submittal to Board
BPW Attorney ® Attorney Name Clara McDaniels
Dept. Attorney Attorney Name
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641-0630-793.31-04
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The Division of Utilities requests the Board of Public Works approval
oval of a
Professional Services Agreement with Weaver and Tidwell, LLP for
administration ountin and conipliance assistance to]- the City of South
Bend Renewable Fuel Standard (RFS) p ogram. The consultant will assist t
Citywith brokerage of Renewable Identification Numbers RINS) and
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