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HomeMy WebLinkAbout1999-031ORDINANCE NO q1 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH R W BECK, INC, FOR CONSULTING SERVICES PERTAINING TO THE DEVELOPMENT OF A NEW ELECTRIC SERVICE RATE DESIGN FOR DENTON MUNICIPAL ELECTRIC, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it in the public interest to engage R W Beck, Inc, a Corporation ("Beck"), to provide professional consulting services to the City pertaining to the development of a new electric service rate design for Denton Municipal Electric ("DME") in preparation for the expected transition of the City into a competitive deregulated electric marketplace, and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above -described professional consulting 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 consulting services, as set forth in the Professional Services Agreement, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Manager is hereby authorized to execute a Professional Services Agreement with R W Beck, Inc , a Corporation, for professional consulting services pertaining to the development of a new electric service rate design for Denton Municipal Electric, in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference SECTION II That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Beck and the ability of Beck to perform the services needed by the City for a fair and reasonable price SECTION III That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized SSECTION IV That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the4ql)L' day of , 1999 �f Oiu- ao A���ffO7 /An �fim� JACK MILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By AOA S \Our Documents\Ordinances\99\R W Beck PSA DME (Ph 11 rate design) doc STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES PERTAINING TO THE DEVELOPMENT OF A NEW ELECTRIC SERVICE RATE DESIGN FOR DENTON MUNICIPAL ELECTRIC THIS AGREEMENT is made and entered into as of the /— day of 1999, by and between the City of Denton, Texas, a Texas Municipal Corporation, with iKhrincipal offices at 215 E McKinney Street, Denton, Texas 76201 (hereinafter "OWNER") and BECK, a Corporation, with its offices at, 1125 Seventeenth Street, Suite 1900, Denver, Colorado 80202 (hereinafter "CONSULTANT"), the parties acting herein, by and through their duly-authorizedrepresentatrves 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 CONSULTANT, as an independent contractor, and the CONSULTANT 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 customanly obtained for such services in the State of Texas The professional services set forth herein are in connection with the following described project Consulting Services Pertaining to the Development of a New Electric Service Rate Design for Denton Municipal Electric ---Phase II (the "Project") ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A To perform all those services and tasks as set forth in CONSULTANT'S proposed "Phase II Scope of Work" which is contained in that certain nine (9) page letter dated December 23, 1998 from Joseph A Mancinelh, Senior Director of CONSULTANT to Sharon Mays, Director of Electric Utilities, Denton Municipal Electric, which letter is attached hereto and incorporated herewith by reference as Attachment "A" B CONSULTANT shall perform all those services set forth in any individual task orders which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements C If there is any conflict between the terms of this Agreement and the Attachments attached to this Agreement, the terms and conditions of this Agreement shall control over the terms and conditions of the Attachments or task orders ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon execution by the OWNER and the CONSULTANT and upon the issuance 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, 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(s) established by the OWNER, acting through its Director of Electric Utilities or her designee ARTICLE IV COMPENSATION A COMPENSATION TERMS "Direct Non -Labor Expense" is defined as that expense, based upon actual cost, for any expense reasonably incurred by the CONSULTANT in the performance of this Agreement for airfare, taxi fare, lodging, meals while traveling, parking fees, tolls, automobile rental (when reasonably necessary), ground transportation, long-distance telephone charges, telecopy charges, printing and reproduction costs, and other incidental expenses incurred in connection with the Project Provided however, any subconsultant billings reasonably incurred by CONSULTANT in connection with the Project shall be invoiced to OWNER at cost plus ten (10%) percent B BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay CONSULTANT based upon the "Not To Exceed Cost Estimate" detail respecting Tasks A and B, as set forth on pages seven (7) and eight (8) of Attachment "A", at the hourly rates set forth in Attachment `B", which Attachments "A" and "B" are attached hereto and incorporated by reference herewith, a total fee, including reimbursement for direct non -labor expense, not to exceed $ 109,500 OWNER has elected to choose Option I regarding the Task B 1 alternatives contained on page 8, Attachment "A" 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 Utilities or his designees, 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 ten (10%) percent of the contract amount until satisfactory 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 Assistant City Manager for Utilities or his designee, or which is not submitted to the OWNER 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 SI mmm tsw 10 9"WBECMMw 11 Or 1)WC 1.e. 2 oe 1 It 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 heremabove, without first having obtained written authorization from the OWNER C PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses within forty-five (45) days after receipt of the CONSULTANT'S undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said forty-fifth (45th) day, and in addition, the CONSULTANT may, after giving ten (10) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER for services, expenses and charges Provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set forth herein, if the OWNER reasonably determines that the work is unsatisfactory, in accordance with Article IV of this Agreement ARTICLE V 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 in the work of the CONSULTANT or any of its subcontractors or subconsultants ARTICLE VI 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 beat OWNER'S sole risk and expense In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this agreement, CONSULTANT is released from any and all liability relating to their use in that project ARTICLE VII INDEPENDENT CONTRACTOR CONSULTANT 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 SW McumrntsWWMdAWBBCK(ftW It Opt I)&c eagc of s ARTICLE VIII INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys 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, attorneys and employees in the execution, operation, or 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 IX 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 A M 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 Tess 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 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 limits of not less than $1,000,000 annual aggregate E 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 to the extent legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (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 of coverage, deliver copies of any such substitute policies furnishing at least the same policy limits and coverage to OWNER S) Doc MACWMMAg WBECKW 11 Opt 1)Eoc Page 4 of 9 ARTICLE X 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 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 TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate this Agreementby providing thirty (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 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 or other reason(s), and not less than (30) calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article IV of this Agreement Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and the new consultant 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 files CONSULTANT agrees that it shall also fully comply with any and all written requests received from the OWNER, through its Director of Electric Utilities, to maintain confidentiality respecting certain designated records, documents, and other written materials related to the Project, which the OWNER reasonably determines is competitively sensitive, and would likely cause damage to the OWNER if disclosed to the public or to any other person, party, or entity ARTICLEXI RESPONSIBILITYFOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work performed pursuant to this Agreement, nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its officers, employees, agents, subcontractors, and subconsultants s w�. m�.0 u�co�u.unsmxweecaien.w 11 qn 1) 1- ease s or s 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 addresses shown below, by means of U S Mail, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein To CONSULTANT To OWNER R W Beck City of Denton Atm Joseph A Mancinelli, Senior Director Attn Michael W Jez 1125 Seventeenth Street, City Manager Suite 1900 215 East McKinney Denver, Colorado 80202 Denton, Texas 76201 All notices under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given ARTICLE XIV ENTIRE AGREEMENT This Agreement consisting of nine (9) pages and two (2) Attachments 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 understandings, and agreements which may have been made in connection with the subject matter of this Agreement ARTICLE XV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competentjunsdiction 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 the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision ARTICLE XVI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended 5\We Dow mTapuacWgMMMECK(PLYe 11 Opt 1) da, Page 6 of 9 ARTICLE XVII 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 ARTICLE XVIII 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, nor have any contractual 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 direct supervision All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under state and local laws to perform such services ARTICLE XIX ASSIGNABILITY The CONSULTANT 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 OWNER 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 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, unless such waiver or modification is in writing, duly executed The parties further agree that the provisions of this Article will not be waived unless as herein set forth ARTICLE XXI MISCELLANEOUS A The following Attachments are attached to and made a part of this Agreement Attachment "A" --- Phase II Scope of Work letter (December 23, 1998) Attachment "B" --- R W Beck Billing Rates (December 23, 1998) B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment made by OWNER under this Agreement, have access to and the right to S bur Ooqu.'Ac. Va\ WHECK(ITere 11 Op 1)tlrc Page 7 of 9 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 examinations or audits in compliance with this Article OWNER shall give CONSULTANT reasonable advance notice of all intended examinations or audits C Venue of any suit or cause of action under this Agreement shall he exclusively in Denton County, Texas This Agreement shall be governed by and construed in accordance with the laws of the State of Texas D For the purpose of this Agreement, the key person who will serve as Project Manager respecting this engagement shall be Joseph A Mancinelli, Senior Director of CONSULTANT However, nothing herein shall limit CONSULTANT from using other qualified and competent members of their firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the provisions hereof In accomplishing the Project, 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 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 the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANTto perform professional services under this Agreement G 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 executed this Agreement in four (4) original counterparts, by and through its duly-authonzed City Manager, and CONSULTANT h �eijgcuted this Agre ent by and through its duly-authonzed undersigned officer, on this the Yday of V_ 1999 "CITY" CITY OF DENTON, TEXAS / L-M Manager SW Bouum=WCmiingAWBECK(Knt It Opt I)&C Pege a.,, ATTEST JENNIFER WALTERS, CITY SECRETARY By APP16VED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By ATTEST QI "CONSULTANT" R W BECK, a Corporation By A e,eV�1z Jos A Mancmell error erector APPROVED By Keith J P1 t e, Oper ions Director S10 rD CuMMACanwmWNDWDECB(W D OP Ume sage 1 of 1