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HomeMy WebLinkAbout1997-366ORDINANCE NO q AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES RELATING TO THE DENTON MUNICIPAL ELECTRIC UTILITY, BETWEEN THE CITY OF DENTON AND LUNDY AND ASSOCIATES, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Manager is hereby authorized to execute the Second Professional Services Agreement for Consulting Services Relating to the Denton Municipal Electric Utility, between the City of Denton and Lundy and Associates, a copy of which is attached hereto and incorporated herein, along with any task orders and other documents necessary to the performance of the second agreement SECTION II. That the expenditure of funds as provided in the attached agreement is hereby authorized SSECTION III That this ordinance shall become effective immediately upon its passage and approval 14 � " " PASSED AND APPROVED this the day of Lam( L/72�%�f , 1997 J I ILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY B APP ED A TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY 41- 1 s \shared\ordinmm\second lundy agreement doc SECOND PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES RELATING TO THE DENTON MUNICIPAL ELECTRIC UTILITY STATE OF TEXAS COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the day of 1997, by and between the City of Denton, a Texas Municipal Corporation, with its principal office at 215 E McKinney Street, Denton, Denton County, Texas 76201 ("CITY") and James L Lundy and Associates, with its principal office at 901 Indiana Avenue, Suite 250, Wichita Falls, Wichita County, Texas 76301, hereinafter called ("LUNDY"), acting herein by and through their duly authorized representatives WHEREAS, on the 13'" day of August, 1997, the CITY and LUNDY entered into a Professional Services Agreement For Consulting Services relating to the Denton Municipal Electric Utility LUNDY has performed the professional services for the CITY pursuant to that first agreement described as�it s one through six, inclusive, as more particularly set forth in that agreement On the day of,/ h&r , 1997, the CITY and LUNDY executed a further attachment pertaining to the August 13, 1997 agreement which provided for changes in the scope of work respecting items three, five, and six of the agreement The CITY has determined that it would be necessary and advisable to obtain two types of further continuing consultant assistance from LUNDY in order to improve the Denton Municipal Electric Utilities' operating effectiveness and efficiency Accordingly, the CITY and LUNDY desire to enter into this second agreement, providing for further professional services to be performed by LUNDY as are more particularly set forth below in Article II hereof WITNESSETH, that in consideration of the covenants and agreements herein contained, the CITY and LUNDY do hereby AGREE as follows ARTICLE I EMPLOYMENT OF CONSULTANT The CITY hereby contracts with LUNDY, as an independent contractor, and LUNDY hereby agrees to perform the services herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas The professional services set out herein are in connection with the following described project The Project shall include without limitation, Consulting services to provide information and guidance to the CITY, which will assist the CITY in positioning its Electric Utility, in context with the CITY's general government, to most effectively and efficiently contribute to the successful pursuit of the mission statement of the City's Utility Department ARTICLE II SCOPE OF SERVICES LUNDY shall perform the following services in a professional manner A To provide coaching, counseling, and/or guidance to selected key CITY managerial individuals respecting processes for 1 The delegation of operating goals and the tracking of results, 2 Interdepartmental communications, coordination and cooperation, 3 The development or enhancement of a spirit of dedication to continual operations improvement B To provide, in concert with the City Manager, Executive Director of Utilities and the Director of Electric Utilities, guidance and/or assistance in the continuation, expansion and potential enhancement of the successful process/improvement activities which they have initiated, and which are currently under way ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon execution by the CITY and LUNDY of this Agreement and upon issuance of a notice to proceed by the CITY and shall remain in force for the period which may reasonably be required for the completion of the Project, and any required extensions approved by the CITY This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence in this Agreement LUNDY shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its City Manager, its Director of Electric Utilities, or by the City Manager's designee ARTICLE IV COMPENSATION A COMPENSATION TERMS "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by LUNDY for supplies, transportation, travel, communications, subsistence and lodging away from home and similar incidental expenses reasonably incurred in connection with that assignment B BILLING AND PAYMENT 1 For and in consideration of the professional services to be performed by LUNDY herein, the CITY agrees to pay LUNDY, a total fee, including reimbursement for direct non - labor expense not to exceed Twenty Thousand Dollars and No/100 ($20,000) Lundy Second Professional Services Agreement — Page 2 C 2 The fee for the services described in this Agreement to be performed by LUNDY are to be billed the rate of $175 00 per hour, or $1,200 00 per eight hour day The parties agree that in no event shall LUNDY's direct non -labor expenses exceed ten (10%) percent of the amounts billed to the CITY for professional services 3 Partial payments to LUNDY will be made by the CITY on the basis of detailed monthly statements rendered to and approved by the CITY through its City Manager or his designee However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered The CITY may withhold the final 5% of the contract amount until completion of the Project 4 Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement The City shall not be required to make any payments to LUNDY when LUNDY is in default under this Agreement 5 It is specifically understood and agreed that LUNDY shall not be authorized to undertake any work pursuant to thus Agreement which would require additional payments by the CITY for any charge, expense or reimbursement above the maximum not -to -exceed fee as stated, without first having obtained written authorization from the CITY PAYMENT If the CITY fails to make payments due LUNDY for services and expenses within sixty (60) days after receipt of LUNDY'S undisputed statement thereof, the amounts due LUNDY will be increased by the rate of one percent (10/6) per month from the said sixtieth (60th) day, and in addition, LUNDY may, after giving seven (7) days' written notice to the CITY, suspend services under tlus Agreement until LUNDY has been paid in full all amounts due for services, expenses and charges provided However, nothing herein shall require the CITY to pay the late charge of one percent (10/6) set forth herein if the CITY reasonably determines that the work of LUNDY is unsatisfactory, in accordance with this Article IV, Compensation ARTICLE V OBSERVATION AND REVIEW OF THE WORK LUNDY will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in lus work or the work of any subconsultants performed hereunder Lundy Second Professional Services Agreement — Page 3 ARTICLE VI OWNERSHIP OF DOCUMENTS All documents prepared or fiimished by LUNDY (or LUNDY's subconsultants) pursuant to this Agreement, are instruments of service and shall become the property of the CITY upon the termination of this Agreement LUNDY is entitled to retain copies of all such documents The documents prepared and furnished by LUNDY are intended only to be applicable to this Project and CITY'S use of these documents in other projects shall be at CITY S sole risk and expense In the event the CITY uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this agreement, LUNDY is released from any and all liability relating to its use in that project ARTICLE VII INDEPENDENT CONTRACTOR LUNDY shall provide services to the CITY as an independent contractor, not as an employee of the CITY LUNDY shall not have or claim any right ansing from employee status ARTICLE VIII INDEMNITY AGREEMENT LUNDY shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney's fees incurred by the CITY, and including without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of LUNDY or any subconsultants, in performance of this Agreement Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved ARTICLE DC INSURANCE During the performance of the Services under this Agreement, LUNDY shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carvers of at least an "A-" or above A Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident and with property damage limits for not less than $100,000 for each accident Lundy Second Professional Services Agreement - Page 4 B LUNDY shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages The insurance policies shall name the CITY as an additional insured on all such policies to the extent legally possible, and shall contain a provision that such insurance shall not be canceled or modified without 30 days prior written notice to CITY and LUNDY In such event, the LUNDY shall, prior to the effective date of the change or cancellation, deliver substitute policies furnishing the same coverage to the CITY ARTICLE X ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation No arbitration or alternate dispute resolution ansing out of or relating to, this Agreement involving one parry's disagreement may include the other party to the disagreement without the other's approval ARTICLE XI TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by giving thirty (30) days advance written notice of termination to the other party B This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, and not less than ten (10) business days in which to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If this Agreement is terminated prior to completion of the services to be provided hereunder, LUNDY shall immediately cease all services and shall render a final bill for services to the CITY within 30 days after the date of termination The CITY shall pay LUNDY for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination in accordance with Article IV, Compensation Should the CITY subsequently contract with a new consultant for the continuation of services on the Protect, LUNDY shall cooperate in providing information LUNDY shall turn over all documents prepared or furnished by LUNDY pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use ARTICLE XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of LUNDY, or any subconsultants of LUNDY, for the accuracy and competency of their Lundy Second Professional Services Agreement — Page 5 designs or other work, nor shall such approval be deemed to be an assumption of such responsibility by the CITY for any defect in the design or other work prepared by LUNDY, or any subconsultant of LUNDY ARTICLE XIII NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the address shown below, certified mail, return receipt requested unless otherwise specified herein Mailed notices shall be sent to the parties at the following addresses To LUNDY James L Lundy & Associates ATTN James L Lundy 901 Indiana Ave, Suite 250 Wicluta Falls, Texas 76301 To CITY City of Denton ATTN Ted Benavides, City Manager 215 E McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given or within three days after the date of mailing ARTICLE XIV ENTIRE AGREEMENT This Agreement consisting of Nine (9) pages constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof ARTICLE XV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement shall not cause the remainder to be invalid or unenforceable In such event, the party shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision ARTICLE XVI COMPLIANCE WITH LAWS LUNDY shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended Lundy Second Professional Services Agreement — Page 6 ARTICLE XVII DISCRIMINATION PROHIBITED In performing the services required hereunder, LUNDY shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap ARTICLE XVIII PERSONNEL A LUNDY represents that he has secured, or will secure at his own expense any additional personnel required to perform all the services required under this Agreement Such personnel shall be subconsultants of LUNDY, and shall not be employees or officers of, nor have any contractual relations with the CITY LUNDY shall inform the CITY of any conflict of interest or potential conflict of interest that may anse during the term of this Agreement B All services required hereunder will be performed by LUNDY or under his supervision All personnel engaged in work shall be qualified and shall be authorized and permitted under state and local laws to perform such services ARTICLE XIX ASSIGNABILITY LUNDY shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the CITY ARTICLE XX MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing, duly executed, and, the parties further agree that the provisions of this section will not be waived unless as herein set forth ARTICLE XVI MISCELLANEOUS A LUNDY agrees that CITY shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of LUNDY involving transactions relating to this Agreement LUNDY agrees that the CITY shall have access during normal working hours to all Lundy Second Professional Services Agreement — Page 7 necessary LUNDY facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section The CITY shall give LUNDY reasonable advance notice of any intended audits B Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas This Agreement shall be governed by, and construed in accordance with the laws of the State of Texas C For the purpose of this Agreement, the key person who will perform most of the work hereunder shall be James L Lundy However, nothing herein shall limit LUNDY from using other qualified and competent members of his firm to perform the services required herein D LUNDY shall commence, carry on, and complete this Project with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof In accomplishing the Project, LUNDY shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carved on by the CITY E The CITY shall assist LUNDY by placing at LUNDY's disposal all available information pertinent to the Project, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for LUNDY to enter in or upon, public and private property as required for LUNDY to perform services under tlus Agreement F The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement IN WITNESS WHEREOF, the City of Denton, Texas has caused tlus Agreement to be executed in duplicate original counterparts, by its duly authorized City Manager, and LUNDY has execu ed this Agreement by its duly authorized undersigned owner and proprietor on this the day of 1997 "CITY" CITY OF DENTON, TEXAS A Municipal Corporation BY nor Ted Benavides, City Manager Lundy Second Professional Services Agreement — Page 8 ATTEST JENNIFER WALTERS, CITY SECRETARY By APPR ED AS O LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By ` I" %A�" Q MKIM1►!�]'1Y James L Lundy & Associates By Nam James L Lundy Title Proprietor s �shared\contracdsecond lundy agreement doe Lundy Second Professional Services Agreement — Page 9 ATTACHMENT TO PROFESSIONAL SERVICES AGREEMENT BETWEEN LUNDY AND ASSOCIATES AND THE CITY OF DENTON, TEXAS Task Order B Reference is made to the Professional Services Agreement For Consulting Services Relating To The Denton Municipal Electric Utility (DMEU) and Lundy and Associates (Lundy) dated August 13, 1997 Lundy has performed professional services in conformance with this agreement and has been requested during the performance of these services and in anticipation of the future needs of DMEU to expand the services offered as noted below MODIFICATIONS TO PROJECT SCOPE Reference is made specifically to Appendix A attached to and made a part of the August 13,1997 agreement Item 3 The original scope of services called for interviews of up to forty people to be designated by DMEU However, at the request of DMEU, eight additional people were interviewed by Lundy Item 5 The original scope of services provided for one all -day workshop on team and operations effectiveness Because of the nature of DMEU's operations, a second session has been requested by DMEU so that only one-half of the supervisors and managers of DMEU will be removed from its operations at any given time Item 6 The original scope of services provided for up to six hours of meetings for presentation of the operations practices survey report This item's allocated time was needed for meetings on September 25, 1997 At least one more meeting has been requested by DMEU BUDGET DMEU's costs to date include $10,650 00 in services and $810 07 in expenses as outlined in the itemized invoice of Lundy dated September 30, 1997 The invoice total of $11,460 07 plus $175 00 for not yet billed October 1997 services and $532 45 October expenses, plus the $2,400 for the forthcoming October 17, 1997 workshop (per Item 5) totals $14,567 52 In spite of the expanded scope of item three (a 20% increase in the number of interviewees), the total incurred and committed cost for DMEU is only approximately two percent above the original cost estimate of $14,250 00 Budget approval has been requested by DMEU to prowde for the followang servtces ¢ An add~tmnal one all day workshop (per ttem 6) to be billed at $1,800 (rather than $2,400) for the second sesston ,/ Retmbursement of addtttonal out-of-pocket expenses associated w~th rendenng the above consulting servtces should not exceed $300 00 through March 1998 ~ As with the prevtous budget, these cost estimates are based upon Lundy's understanding w~th DMEU regarding the anttctpated scope of ad&ttonal work Mutually agreed upon expanstons or contractions of the scope of the ant~ctpated dehverables will be expected to result m related increases or decreases tn Lundy's bflhngs Total professional fees and expenses pursuant to Task Order B shall not exceed the sum of $2,100 00 Authorized by Accepted by CITY OF DENTON, TEXAS LUNDY AND ASSOCIATES Ted l~enavtdes, City Manager Jam~s L Lundy, Proprietor Approved as to Legal Form Herbert LProuty, Ctty Attorney By '1~ ~ s ~shared~:ontract\lundy task order doc Task Order B - Page 2