Loading...
1997-186AN ORDINANCE PROVIDING FOR THE EXPENDITURE OF FUNDS FOR PURCHASES OF MATERIALS OR EQUIPMENT WHICH ARE AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PROVISIONS OF STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDS, AND PROVIDING AN EFFECTIVE DATE WHEREAS, SecUon 252 022 of the Local Government Code provides that procurement of items that are only available from one source, including items that are only avmlable from one source because of patents, copyrights, secret process or natural monopolies, films, manuscripts or books, electricity, gas, water, and other uUhty purchases, capuve placement pans or components for eqmpment, and hbrary materials for a public library that are available only from the persons holding exclusive dlstnbution rights to the matenals, need not be subrmtted to competitive bids, and WHEREAS, the City Council wishes to procure one or more of the ~tems mentioned m the above paragraph, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS ~ That the following purchases of materials, equipment or supplies, as described m the "Purchase Orders" attached hereto, are hereby approved PURCHASE ~ VENDOR AMOUNT 75951 BOBBY GRAY $28,500 00 SECTION II That the acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all reqturements specified by the Purchasing Department ~ That the City Manager is hereby anthonzed to execute the attached contract relating to the items specified m Section I and the expenditure of funds pursuant to said contract is hereby authorized ~ That this ordinance shall become effective immediately upon its passage and approval ~ PASSED AND APPROVED ttus the /~J~ dayof ,1997 ATTEST JENNIFER WALTERS, CITY SECRETARY ~d~V~'o~ ~o~o~o~ HERBERT L PROUTY, CITY ATTORNEY BOBBY ORAY Page 2 SOLE SOURCE SERVZCES AGEEE~E~I'T FOR EZS SOFTW~tE CONVERSZON STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT ls made and entered into as of the 1st day of July, 1997, by and between the City of Denton, a Texas Municipal Corporation, w~th its principal off~ce at 215 E McK~nney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Bobby Gray, with his office at 2309 Chamberlain Driver, Plano, Texas 75023, hereinafter called the ,,CONSULTANT", acting herein, by and through their duly authorized representatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows E~PLOI"~ENT OF CONSULTAITi' The OWNER hereby contracts with CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection wlth the Project as stated ~n the sections to follow, wlth diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas That CONSULTANT is the sole source for the services set forth here~n ~n accordance with TEX LOC GOV'T CODE §252 022 The sole source services set out herein are in connection w~th the following described project Modify EIS Software currently implemented by the City of Denton to be year 2000 compliant and compliant with the latest revision to COBRA law, in accordance w~th all the requirements of Purchase Order #75951 SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A To perform all those services set forth ~n CONSULTANT's Quotation for Professional Services dated June 16, 1997, which proposal ~s attached hereto and made a part hereof as Exhibit "A" as if written word for word herein, and all other services as may be required by Purchase Order #75951 B If there is any conflict between the terms of th~s Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement w~ll control over the terms and conditions of the attached exhlbats or task orders ADDITIONAL SERVICES DELETED IN ITS ENTIRETY PERIOD OF SERVICE Thas Agreement shall become effective upon executaon of th~s Agreement by the OWNER and the CONSULTANT and upon issue of a not~ce to proceed by the OWNER, and shall remain ~n 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 Th~s Agreement may be sooner terminated in accordance with the prov~slons hereof Time ~s of the essence in th~s 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, acting through its City Manager or his designee ARTICLE V COMPENSATION A BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail which is attached hereto as Exhibit "A" and made a part of this Agreement as if written word for word herein, a total fee not to exceed Twenty-eight Thousand Five Hundred Dollars ($28,500) Part~al payments to the CONSULTANT w~ll be made on the bas~s of detailed monthly statements rendered to and approved by the OWNER 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 tame a statement is rendered Nothing contained in this Artacle shall requare the OWNER to pay for any work which as unsatisfactory, as reasonably deter- mined by the City Manager or his designee, or which as not submitted in compliance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSUL- TANT when the CONSULTANT is in default under th~s Agreement It is specaf~cally understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would requare additional payments by the OWNER for any charge, expense, or reimbursement above the maxamum not to exceed fee as stated, without f~rst having obtained written author~zatlon from the OWNER PAGE 2 B PAYMENT If the OWNER falls to make payments due the CONSULTANT for services and expenses withln s~xty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT w~ll be increased by the rate of one percent (1%) per month from the said slxtieth (60th) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written not~ce to the OWNER, suspend services under th~s Agreement until the CONSULTANT has been paid in full all amounts due for servlces, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth here~n if the OWNER reasonably determines that the work is unsatisfactory, ~n accordance w~th this Article V, Compensation OBSERVATION AND REVIEW OF THE WORK The CONSULTANT wlll exercise reasonable care and due d~l~gence · n discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to thls Agreement are instruments of service, and shall become the property of the OWNER upon the termination of th~s Agreement The CONSUL- TANT 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 Pro]ect, and OWNER's use of these documents in other projects shall be at OWNER's sole r~sk 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 speclfied herein, CONSULTANT is released from any and all liability relating to their use in that project 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 INSURANCE DELETED IN ITS ENTIRETY PAGE 3 ~NDE~'~TY &GREE~.,NT The CONSULTANT shall indemnify and save and hold harmless the OWNER and 1ts officers, agents, and employees from and against any and all l~abil~ty, claims, demands, damages, losses, and expenses, including, but not l~m~ted to court costs and reasonable attorney fees incurred by the OWNER, and ~nclud~ng, without l~m~tat~on, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or om~sslons of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of th~s Agreement Nothing ~n this Agreement shall be construed to create a liability to any person who ~s 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 lmmun~ty, which defenses are hereby expressly reserved ARBITRATION AND ALTEP. NATE 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 party's disagreement, may include the other party to the disagreement without the other's approval TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate by giving 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 affected unless the other party is given (1) written notice (delivered by certified mall, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, 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 ser- vices 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 PAGE 4 termination incurred prior to the date of termination, in ac- cordance wlthArtlcle V ,,Compensation" Should the OWNER sub- sequently 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 RESPONSIBILITY FOR CLAIM~ AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, 1ts employees, associates, agents, subcontractors, 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 responsi- bility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants 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 mall at the address shown below, certified mail, return receipt requested, unless otherwise specified herein Mailed notices shall be deemed communicated as of three days mailing To CONSULTANT To OWNER Bobby Gray City of Denton 2309 Chamberlain Drive ATTN Gary Collins, Director Plano, Texas 75023 of Information Services 215 E McKlnney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three days mailing ENTIRE AGREEMENT This Agreement, consisting of 8 pages and 1 exhibit, consti- tutes 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 contempo- raneous offers, promises, representations, negotiations, discus- slons, communications, and agreements which may have been made in connection with the subject matter hereof PAGE 5 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 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 DISCHIMINATION 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 PERSONNEL A The CONSULTANT represents that it has or w~ll secure, at ~ts own expense, all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, or 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 Ail services required hereunder w~ll 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 XX ASSIGNABILITY The CONSULTANT shall not assign any ~nterest in th~s Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER PAGE 6 MODIFICATION NO waiver or modification of this Agreement or of any covenant, condition, or l~m~tat~on 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 modlf~cat~on is in writing and duly executed, and the partles further agree that the provisions of this section w~ll not be waived unless as here~n set forth MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement. Exhibit A - Quotation for Professional Services B CONSULTANT agrees that OWNER 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 the CONSULTANT ~nvolv- lng 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 ~n compliance with th~s section OWNER shall give CONSULTANT reasonable advance notlce of ~ntended audits C Venue of any suit or cause of action under thlsAgreement shall lie exclusively ~n Denton County, Texas Th~s 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 perform most of this work hereunder shall be Bobby Gray However, nothing herein shall limit CONSULTANT from using other qualified and competent members of 1ts f~rm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable d~spatch, ~n a sound, economical, efficient manner and in accordance with the prov~slons 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 placlng 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 thereto, and make all provisions for the CONSULTANT to enter ~n or upon public and private property as required for the CONSULTANT to perform services under this Agreement PAGE 7 G The captions of thls Agreement are for ~nformatlonal purposes only, and shall not in any way affect the substantlve terms or condltlons of th~s Agreement IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and :~l~..authorlzed CONSULTANT has executed thlsAgre~through it dul undersigned officer on this the ,/A;,. day of _ ,, CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER ATTEST. JE~IFER W~TERS, CI~ SECRETLY By A,~ ~ APPRO~D ~ TO LEG~ FO~ HERBERT L PROUTY, CITY ATTO~EY CONSULT~T ~IT~ E \DOCS\K\0RAY K PAGE 8 EXHIBIT "A" £1S SUPPORT ~EHUZCES ~:~ t:If#HBERLa~H DR~UE, PLIIHO, TX 7Sues (97m) S96-?U~U ElssuppsucBaoZ.cem QUOTIITZDH ~R P~SIO~L ~H, ~ ~TA~ OF ~BK ~R ~ZS ~R 201E PR~: ~ze~ted bg ~e GX~ oF D~n U ~ Uat ~stXng, ~Za~n and ~cus~g aP dates p~u~ ~ renu nd deg. F~ed ~arge ~r ~e ~rR: ST~ OF ~RK ~g EIS ~ PROJECt ProFoss~ona~ s~f ~ a~ EIS ~BlO ~us~g ~ ~pnrt ~o~, ~an oF ~pgnOnt ~erage ~r~a~on. F~ed ~argo For ~ ~rk: ~,SUn. PROJBT ~FIC~ DATE: dune 16. 1997 14