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HomeMy WebLinkAbout2001-084FILE REFERENCE FORM 2001-084 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Task Order No. 01-B approved by Ordinance No. 2001-145 04/03/01 Task Order No. 01-C approved by Ordinance No. 2001-229 07/17/01 Task Orders no. 02-A and 02-B approved by Ordinance No. 2002-077 03/26/02 First Amended Task Order No. 02-B approved by Ordinance No. 2002-317 09/ 17/02 NOTE Task Order No. 01-B approved by Ordinance NOTE Task Order No. 01-C approved by Ordinance NOTE. Task Orders No. 02-A and 02-B approved by No 2001-145 No 2001-229 Ordinance No 2002-077 ORDINANCE NO O3_0 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH R J COVINGTON CONSULTING FOR CONSULTING SERVICES RELATING TO THE DENTON MUNICIPAL ELECTRIC UTILITY, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it in the public interest to engage the firm of R J Covington Consulting, of Austin ("Covington"), to provide consulting services to the City relating to the Denton Municipal Electric Utility, including, without limitation, support activities in the City's transmission cost of service ("TCOS") pending at the Public Utility Commission of Texas, and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above -described professional services, and that limited City staff cannot adequately perform the services and tasks with its own personnel, and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price, and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional services, as set forth in the Professional Services Agreement, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is hereby authorized to execute a Professional Services Agreement with R J Covington Consulting, of Austin, Texas, for professional consulting services relating to the Denton Mumcipal Electric Utility, in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference SSECTION 2 That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Covington and the ability of Covington to perform the professional services needed by the City for a fair and reasonable price SSECTION 3 That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized SECTION 4 That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the 14 L day of 12001 ez EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY By )am � APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By S \Our Documents\Ordmunces\01\Covington Consulting PSA DME Ord doc STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES RELATING TO THE DENTON MUNICIPAL ELECTRIC UTILITY THIS AGREEMENT is made and entered into as of the " day of �2001, by and between the City of Denton, a Texas Municipal Corporation, with its principal ice at 215 East McKinney Street, Denton, Texas 76201 ("CITY'), and R J COVINGTON CONSULTING with its principal office at 13276 Research Blvd, Suite 201, Austin, Texas 78750, hereafter "COVINGTON", acting herein by and through their duly authorized representatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the CITY and COVINGTON do hereby AGREE as follows ARTICLE T EMPLOYMENT OF CONSULTANT The CITY hereby contracts with COVINGTON, as an independent contractor, and COVINGTON hereby agrees to perform the services herein in connection with the Scope of Services 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 ARTICLE IT SCOPE OF SERVICES A COVINGTON shall provide to the CITY professional consulting services pertaining to the development and filing of the CITY'S transmission cost of service (TCOS) COVINGTON will assist CITY Staff in preparation of the rate -filing package COVINGTON will also work with Staff in the development of supporting pre -filed testimony and exhibits, and will present testimony if so directed COVINGTON will work with the CITY'S attorneys and Staff to respond to Requests For Information (RFI's), review opposing testimony filed by interveners, develop rebuttal testimony, assist in development of briefs, and will meet with Staff of the Public Utility Commission of Texas ("PUC") and intervening parties as needed to support the CITY'S TCOS Details of these and related tasks to be provided under tlus Agreement are set forth in Task Order 01-A B This shall serve as a Master Agreement and may be amended in the future by the execution of such other and further Task Orders, as shall be authorized by the Public Utilities Board and the City Council C To consult with the City Manager, Assistant City Manager/Utilities, the Director of Electnc Utilities, the City Attorney, and other designated administrative personnel regarding any and all aspects of the services to be performed pursuant to this Agreement ARTICLE ITT PERIOD OF SERVICE This Agreement shall become effective upon execution by both the CITY and COVINGTON, and shall remain in force continuously until December 31, 2002 This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence in tlus Agreement COVINGTON 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 or its Director of Electric Utilities ARTICLE TV COMPENSATION A COMPENSATION TERMS "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense, overnight couner, photocopy expense, 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 COVINGTON herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct non -labor expense, not to exceed $80,000 2 Any additional Task Orders that shall be later authorized by the Public Utilities Board and the City Council, shall have a separate budget for professional services and expenses associated with such Task Order 3 The fee for the services described in this Agreement to be performed by COVINGTON are to be billed the rates as set forth in Exhibit A attached hereto and incorporated herewith by reference Billing shall be reported in minimum one -quarter (1/4) hour increments 4 Payments to COVINGTON 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 the Director of Electric Utilities However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered 5 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 the Director of Electric Utilities, or which is not submitted in compliance with the terms of this Agreement The City shall not be required to make any payments to COVINGTON when COVINGTON is in default under this Agreement Page 2 6 It is specifically understood and agreed that COVINGTON shall not be authorized to undertake any work pursuant to this Agreement wluch 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 C PAYMENT If the CITY fails to make payments due COVINGTON for services and expenses within forty five (45) days after receipt of COVINGTON'S undisputed statement thereof, the amounts due COVINGTON will be increased by the rate of one percent (1%) per month from the said forty-fifth (45th) day, and in addition, COVINGTON may, after giving ten (10) days' written notice to the CITY, suspend services under this Agreement until COVINGTON 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 (1%) set forth herein if the CITY reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with this Article IV, Compensation ARTICLE V OBSERVATION AND REVIEW OF THE WORK COVINGTON will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in his work or the work of any subconsultants performed hereunder ARTICT.F. VT OWNERSHIP OF DOCUMENTS All documents, analyses and other data prepared by COVINGTON under this Agreement ("Work Products") are instruments of service and are and shall remain the property of CITY COVINGTON shall have the right to make and retain copies and use all Work Products, provided, however, the use shall be limited to the intended use for wluch the services and Work Products are provided under this Agreement COVINGTON may use and may copyright certain non -sensitive Work Products as property of COVINGTON, provided that prior written approval is obtained from CITY, whose approval shall not be unreasonably withheld, and providing that copywnting will not restrict CITY'S right to retain or make copies of the Work Products for its information, reference and use on the Project or services under the Agreement The Work Products shall not be changed or used for purposes other than those set forth in this Agreement without the prior written approval of COVINGTON If CITY releases the Work Products to a third party without COVINGTON'S prior written consent, or changes or uses the Work Products other than as intended hereunder, CITY does so at its sole risk and discretion and COVINGTON shall not be liable for any claims or damages resulting from or connected with the release or any third party's use of the Work Products Page 3 ARTICLE. MIT INDEPENDENT CONTRACTOR COVINGTON shall provide services to the CITY as an independent contractor, not as an employee of the CITY COVINGTON shall not have or claim any right ansing from employee status ARTICLE VTTT INDEMNITY AGREEMENT COVINGTON 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, and damage for professional malpractice resulting from the negligent acts or omissions of COVINGTON or any subconsultants, in performance of this Agreement COVINGTON'S liability under this Article VIII is expressly limited to the limit of COVINGTON'S insurance as set forth in Article IX 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 parry'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 During the performance of the Services under this Agreement, COVINGTON 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 Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence, and not less than $100,000 in the aggregate B 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 of not less than $100,000 for each accident C Worker's Compensation Insurance in accordance with statutory requirements and Employer's Liability Insurance with limits of not less than $100,000 for each accident D Professional Liability Insurance with policy limits of not less than $1,000,000 annual aggregate Page 4 E COVINGTON 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 tlurty (30) days prior written notice to CITY and COVINGTON In such event, COVINGTON 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 ansmg out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval ARTICLE. XI LIMITATION OF LIABILITY To the extent permitted by law, the total liability of COVINGTON to CITY for any and all claims ansing out of this Agreement, whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemnity claims based on third -party claims, shall not exceed one million dollars ($1,000,000) ARTICLE XII CONSEQUENTIAL DAMAGES In no event and under no circumstances shall COVINGTON be liable to CITY for any interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any consequential, indirect or special damages COVINGTON will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same degree of similar services No other warranty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and all implied warranties are disclaimed ARTICLE XIV 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 Page 5 B This Agreement may be terminated in whole or in part in the event of either party substantially fatting 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, COVINGTON 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 COVINGTON 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 Project, COVINGTON shall cooperate in providing information COVINGTON shall turn over all documents prepared or furnished by COVINGTON 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 F XV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of COVINGTON, or any sub -consultants of COVINGTON, for the accuracy and competency of their designs or other work product ARTICLE XVT 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 COVINGTON R J Covington Consulting Alm Richard J Covington 13276 Research Blvd , Suite 201 Austin, Texas 78750 To CITY City of Denton, Texas Attn Michael W Jez, City Manager 215 East 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 Page 6 ARTIC T E XVTT 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 ARTIC'I E XVIII 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 tlus Agreement and 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 ARTIC'I E XIX COMPLIANCE WITH LAWS COVINGTON 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 ARTICLE E XX DISCRIMINATION PROHIBITED In performing the services required hereunder, COVINGTON shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap R-W�WWWW • a' • A COVINGTON 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 COVINGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY COVINGTON 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 COVINGTON or under lus supervision All personnel engaged in work shall be qualified and shall be authorized and permitted under state and local laws to perform such services Page 7 COVINGTON shall not assign any interest in tlus Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the CITY ARTTCLE XXTTT MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, lunitation 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 tlus 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 XXN MISCELLANEOUS A COVINGTON 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 COVINGTON involving transactions relating to this Agreement COVINGTON agrees that the CITY shall have access during normal working hours to all necessary COVINGTON facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section The CITY shall give COVINGTON 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 COVINGTON shall commence, carry on, and complete the work required by this engagement with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof In accomplislung the work, COVINGTON shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the CITY D The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available information pertinent to the work required by tlus engagement, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for COVINGTON to enter in or upon, public and private property as required for COVINGTON to perform services under this Agreement E 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 Page 8 IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed in four original counterparts, by its duly authorized City Manager, and �C�OVI CO17, VINGTON has executed ,ithis Agreement by its duly authorized officer on this the VIy of 2001 "CITY" ATTEST JENNIFER WALTERS, CITY SECRETARY �ROVED AS TO LEGAL FORM 2 BERT L PROUTY,ATTORNEY ATTEST M Page 9 CITY OF DENTON, TEXAS A Municipal Corporation B 1chael Jez, anager "COVINGTON" R J COVINGTON CONSULTING By Richard J CcKington,146resident ATTACHMENT TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON AND R J COVINGTON CONSULTING TASK ORDER NO 01-A Transmission Cost of Service Filing Work provided for in this Task Order is for R J Covington Consulting (RJC) to assist the City in the development and filing of a transmission cost of service study (TCOS) at the Public Utility Commission of Texas (PUC) A filmg is necessary because of the City's increased investment in transmission facilities and the need to recover those costs through the ERCOT postage stamp facilities charges Because the rules governing recovery of transmission costs have been changing, the City will have several options to consider Once a determination of the best filing option is made, the appropriate filing package will need to be prepared and filed with supporting testimony The services performed by RJC will also include assistance in the preparation of testimony to support the filing and testifying on issues as directed by City Staff RJC will work with the City in responding to Requests for Information during the discovery phase of the process, and will work the Staff and the City's attorneys during the hearings to defend the City's position against other parties and the PUC staff Scope of Services Task A Determine Strategy And Responsibilities RJC will work with City Staff to determine best strategy for filing by a reviewing latest PUC rules b having discussions with City's attorneys and City Staff to review filing options c options include consideration of historic vs forecast vs abbreviated filings d consider timing strategy for filing e consider actions that may be needed from City Council to support costs d review results of other TCOS filings to evaluate PUC decisions on issues, particularly other public entities' TCOS filings that have used the cash flow method f review relative benefits to City of filing under cash flow versus rate of return method 2 Meet in Denton to discuss options with Staff and coordinate assignments to uutiate study based on approved approach Task Order No 01-A Transmission Cost of Service Filing Task B Prepare Filmg Schedules RJC will identify schedules needed depending on historic or forecasted test year, or abbreviated filing Work with staff to coordinate gathering of data by staff & filling out of schedules Review all schedules for completeness Develop information needed for filing of Cash Flow Method and prepare necessary worksheets Task C Preparation of Testimon 1 RJC will prepare pre -filed testimony on use of cash flow method 2 Prepare exhibits for testimony 2 Review testuriony of other City witnesses and provide comments 3 Work with attorneys to complete rate filing package and file at PUC Task D Discove 1 RJC will review all RFI's sent to City and assist in determining best person to respond 2 Work with attorneys and staff to respond to RFI's from PUC and other parties, being sure that responses are consistent with filing 3 If needed, RJC will prepare RFI's to serve on other parties to assist in evaluation of other party's positions and gather information needed for cross examination of witnesses Task E Hearings 1 RJC will review testimony and exhibits filed by PUC staff and other parties 2 Evaluate impacts of alternative positions of other parties 3 Prepare rebuttal testimony and file 4 Assist attorneys in preparing cross of PUC staff and other parties 5 Attend hearings and present direct testimony 6 Assist attorneys in preparing briefs 7 Review ALJ Prehmmary Order, & assist attorneys in filing exceptions 8 Review Final Order and other documents 9 Rework numbers for Final Order 2of3 Task Order No 01-A Transmission Cost of Service Frlmg Budget The budget for the above scope of services for labor and expenses is difficult to estimate due to the fact that the transmission filing rules have been changing as the market restructures The budget will depend on the availability of City Staff to gather data, on the filing method decided upon, and on the level of intervention from other parties and staff Based on prior experience in working with these issues, RJC recommends a budget of $80,000 for labor and expenses This budget will not be exceeded without prior approval of the City RJC will bill monthly with supporting documentation of activities performed The work being performed will be under the supervision of the Director of Electric Utilities and may be modified at any time upon appropriate notice to RJC EXECUTED thisday of 2001 AUTHORIZED BY DENTON, TEXAS m Dated ATTEST JENNIFER WALTERS C SECRETARY By A Da ed ACCEPTED BY R J COVINGTON CONSULTING APPROVED AS TO LEGAL FORM HERBERT L PROUTY CITY ATTORNEY By _ I d /�' 3of3