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