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HomeMy WebLinkAbout2000-2735 Wue OoaxenYWNLun[M00\DUCT ORDNANCE d., ORDINANCE NO AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A PROFESSIONAL SERVICES AGREEMENT WITH DIVERSIFIED UTILITY CONSULTANTS, INC TO PROVIDE TESTIMONY AS EXPERT WITNESSES AND RELATED CONSULTING SERVICES IN THE CITY OF DENTON VS TEXAS UTILITIES COMPANY, ET AL, LITIGATION, AUTHORIZING THE FUNDS THEREFORE, PROVIDING RETROACTIVE EFFECT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, Diversified Utility Consultants, Inc (DUCI) performed audits for the city on TXU Gas and Electric which resulted in a finding of significant delinquent franchise fees, and WHEREAS, based in part on DUCI's findings, the city has filed litigation entitled City of Denton vs Texas Utilities Company, et al, in an attempt to collect delinquent franchise fees, and WHEREAS, through the work on the audit and through a separate contract with the City to provide consulting services for development of a new electric service rate design for Denton Murucipal Electric DUCI has demonstrated the competence and qualifications to perform these professional services, and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to DUCI's profession and such fees do not exceed the maximum provided by law, and WHEREAS, whereas the City Council deems it the public interest that the City enter into a professional services contract with DUCI to provide litigation support services, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is hereby authorized to enter into a Professional Services Agreement with Diversified Utility Consultants, Inc, substantially in the form of the Professional Services Agreement attached, which is incorporated herewith by reference, to provide expert testimony and other litigation support services in the litigation styled City of Denton vs Texas Utilities Company, et al SECTION 2 That the City Manager is hereby authorized to make the expenditures and take the actions set forth in the attached Professional Services Agreement SECTION 3 That any services previously performed by DUCI in support of this litigation are hereby ratified and retroactively approved from and after June 1, 2000 s w�. nocumenuwiainaocwwm➢uCl onnwmce a SECTION 4 This ordinance shall become effective immediately upon it's passage and approval �f PASSED AND APPROVED this the /✓ `-� day of 2000 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATT m Page 2 FROMi DENTON CITY ATTORNEY FAX NO 1 9403827923 08-07-00 03146P P 03 PROFESSIONAL SERVICES AGREEMENT FOR EXPERT TESTIMONY AND LITIGATION SUPPORT SERVICES STATE OF TEXAS COUNTY OF DENTON § 'PHIS AGREEMENT is made and entered into as of the+� day of 2000, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER' and Diversified Utility Consultants, Inc, with its corporate office at 12113 Roxie Drive, Suite 110, Austin, Texas 78729, hereinafter called "CONSULTANT," acting herein, by and through their duly authonied representatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections 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, providing expert witness testimony and related litigation support services, along with any other services which would be necessary to perform such litigation support services in the case of City of Denton vs Texas Utilities Company, et al, Cause No 2000-60109-393 in the 393', Judicial District Court of Denton County, Texas ARTICLE 2 SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A The CONSULTANT shall perform all those services as necessary and as described in the CONSULTANT's letter proposal dated July 27, 2000, with CONSULTANT's cost proposal, which is attached heito as Exhibit "A', to provide expert witness testimony and other litigation support services to litigation counsel in the case of City of Denton vs Texas Utilities Company, et al, Cause No 2000-60109-393 in the 39P District Court of Denton County, Texas Such services shall include, without limitation, providing testimony as expert witness to support the findings of consultant's audits of TXU Gas and RIM d(a0d'(i® AUG 0 9 200( CITYEGAL DEP ON FROM, DENTON CITY ATTORNEY FAX NO + 9403927923 08-07-00 03146P P 04 Electric including any revisions to these findings that result from documents produced or evidence received as a result of the above mentioned litigation B CONSULTANT shall cooperate fully with the law firm of Strasburger and Price and Bucek and Frank and the City Attorney in performing these services C CONSULTANT shall per£onn all those services set forth in individual task orders, if any, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements D If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders ARTICLE 3 ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not Included in the above-desenbed Basic Services, are described as follows A Any other additional services specifically requested by the OWNER not Included within the scope of this Agreement and its exhibits ARTICLE 4 PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for the period which may reasonably be required for the completion of the project, including Additional Services, if any, and any required extensions approved by the OWNER This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence in this Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER in Exhibit "A", acting through its attorneys ARTICLE 5 COMPENSATION A COMPENSATION TERMS "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services Page 2 FROMi DENTON CITY ATTORNEY FAX NO 1 9403827923 00-07-00 03146P P 05 2 "Direct Non -Labor Expense' is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment B 13ILLING AND PAYMENT For and to consideration of the professional services to be performed by the CONSULTANT herein the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "A". July 27, 2000 letter from CONSULTANT to OWNER and attached manpower and cost requirements, a total fee, including reimbursement for direct non -labor expenses and all out of pocket expenses not to exceed $75,000 00 All out of pocket expenses will be reimbursed at cost, internal copies will be reimbursed at a rate of $ 10 per copy, and internal computer time will be reimbursed at the rate of $10 00 per hour Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its Assistant City Manager for Fiscal & Municipal Services and its City Attorney 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 OWNER may withhold the final five percent (5%) of the contract amount until completion of the Project Nothing contained in this Article shall require the OWNER 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 OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement Tt is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER The CONSULTANT shall not proceed to perform the services listed in Article 3 "Additional Services," without obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES For additional services authorized in writing by the OWNER in Article 3, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "A" Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection B hereof, Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses within 60 days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of Page 3 FROMC DENTON CITY ATTORNEY FAX NO 8 9403827923 08-07-00 03 47P P 06 one percent (1%) per month from the said sixtieth (60'h) day, and, in addition, the CONSULTANT may, after giving seven days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article 5, "Compensation " ARTICLE 6 OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies to the work of the CONSULTANT or any subcontractors or subconsultants ARTICLE 7 OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement The CONSULTANT is entitled to retain copies of all such documents The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project A_RTiCLF 8 INDEPENDENT CONTRACTOR CONSULTAN I shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right arising from employee status ARTICLE 9 INDEMNITY AGREEMENT The CONSULTANT shall and hereby agrees to indemnify and save and hold harmless the OWNER 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 fees incurred by the OWNER, and including, without limitation damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement Page 4 FROMI DENTON CITY ATTORNEY FAX NO 1 9403827923 08-07-00 03 47P P 07 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 parties' 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 10 INSURANCE During the performance of the services under this Agreement, CONSULTANT 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 Carriers 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 Employers' Liability Insurance with limits of not less than $100,000 for each accident D Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate E The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without 30 days' prior written notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furmshuig the same coverage ARTICLE 11 ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may 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 arising 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 Page 5 FROMI DENTON CITY ATTORNEY FAX NO + 9403827923 08-07-00 03148P P 08 ARTICLR 12 TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate by giving 30 days' advance written notice 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 affected 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 non-performance, and not less than 30 calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party pnor to termination C If the Agreement is terminated prior to completion of the Rerviceq to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within 30 days after the date of termination The OWNER shall pay CONSULTANT 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 5 "Compensation " Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use ARTICLE 13 RESPONSIBILITY FOR CLAIMS AND LIABiLITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, bubc.ontractors, and subconsultants for the accuracy and competency of their designs or other work, nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants ARTICLE 14 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 to the address shown below, certified mail, return receipt requested, unless otherwise specified herein Mailed notices shall be deemed communicated as of iluee days' mailing Page 6 FRONt DENTON CITY ATTORNEY FAX NO 9403827923 08-07-00 03148P P 09 To CONSULTANT Jack Pous Diversified Utility Consultants, Inc 12113 Roxie Drive, Suite 110 Austin, Texas 78729 To OWNER City of Denton Herbert L Prouty, City Attorney 215 East McKinney Denton, Texas 76201 All notices shall he deemed effective upon receipt by the party to whom such notice is given, or within three days' mailing ARTICLE 15 ENTIRE AGREEMENT This Agreement, consisting of ten pages and two exhibits, 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 16 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 and shall not cause the remainder to be invalid or unenforceable In such event, the parties 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 17 COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended ARTICLE 18 DISCRIMINATION PROHIBITED in performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap Page 7 FROM] DENTON CITY ATTORNEY FAX NO 1 9403827923 08-07-00 03 49P P 10 "TICLE 19 PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, of have any Conti actual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement B All services required hereunder will be performed by the CONSULTANT or under its 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 20 ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novatton, or otherwise) without the prior written consent of the OWNER ARTICLE 21 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or 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 and duly executed, and the parties further agree that the provisions of this section will not be waived unless as set forth herein ARTICLE 22 CONFLICT OF INTEREST CONSULTANT covenants that neither it nor any member of its firm has any interest, direct, or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement CONSULTANT further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its firm CONSULTANT further covenants that neither CONSULTANT nor any member of its firm shall perform services for or accept compensation from TXU Gas or Electric or any of the defendants named in the litigation or their affiliates during the term of this contract nor disclose any matter which would adversely impact owner in this litigation, unless CONSULTANT first fully discloses the matter to Owner and receives Owner's permission to undertake such services or accept such compensation Page 8 FROM DENTON CITY ATTORNEY FAX NO 1 9403827923 08-07-00 03 49P P 11 ARTICLE 23 MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement A — Letter of July 27, 2000, with CONSULTANT's cost proposal 13 CONSULTANT agrees that OWNER shall, until the expiration of three 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 the CONSULTANT involving transactions relating to this Agreement CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section OWNER shall give CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas This Agreement shall be construed in accordance with the laws of the State of Texas D For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Jacob Pous, Dan Lawton, and Sara Coleman However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available uifonttation pertinent to the Project, including previous reports, any other data relativo to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement G The captions of this Agreement are for informational purposes only, and shall not in any way affect the subbtantive terms or conditions of this Agreement TN WTTNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has execute this Agreement through its duly authorized undersigned officer on this the %'y day of r 2000 Page 9 FROM$ DENTON CITY ATTORNEY FAX NO 9403827923 08-07-00 03$50P P 12 ATTEST JENNIFER WALTERS, CTTY SECRETARY BY APP VED TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY I]1 WITNESS BY *r! �—aj— F \A.Mny4\LDL10m I dM CITY OF DENTON, TEXAS DIVERSIFIED UTILITY CONSULTANTS, INC Li / 4e4t J K POUS, PRINCIPAL r ' T Page 10