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1997-366 O CENO q AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES RELATING TO THE DENTON MUNICIPAL ELECTRIC UTILITY, BETWEEN THE CITY OF DENTON AND LUNDY AND ASSOCIATES, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Cxty Manager is hereby authorized to execute the Second Professional Services Agreement for Consulting Services Relating to the Denton Mumclpal Electric Utfllty, between the City of Denton and Lundy and Associates, a copy of which is attached hereto and incorporated herein, along with any task orders and other documents necessary to the performance of the second agreement SECTION II. That the expenchture of funds as provided in the attached agreement is hereby anthonzed CT~.E_~_T. LQ]2LI~ That this ordinance shall become effective ~mmedlately upon Its passage and approval PASSED AND APPROVED this the ~ day of,~A~/9~/~/~ ,1997 ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY s \shared~ord~nance\~e¢ond lundy agreement doc SECOND PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES RELATING TO THE DENTON MUNICIPAL ELECTRIC UTILITY STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the/~ ~Z~ day of/~f~_~, 1997, by and between the City of Denton, a Texas Mumc~pal CorporaUon, w~th its pnnc~pal office at 215 E McKumey Street, Denton, Denton County, Texas 76201 ("CITY") and James L Lundy and Associates, with ~ts pnnclpal office at 901 Inchana Avenue, Suite 250, Wlcluta Falls, W~chlta County, Texas 76301, hereinafter called ("LUNDY"), acting herein by and through their duly authorized representatives WHEREAS, on the 13~ day of August, 1997, the CITY and LUNDY entered into a Professional Services Agreement For Consulting Services relating to the Denton Municipal Electric Utility LUNDY has performed the professional services for the CITY pursuant to that first agreement described as.~/~ms one through six, mcluslve, as more partacularly set forth m that agreement On the/~ r_~ day of~, 1997, the CITY and LUNDY executed a further attachment pertatmng to the August 13, 1997 agreement wtuch prov, ded for changes in the scope ofwork respecting ~tems three, five, and slx of the agreement The CITY has determmed that it would be necessary and advisable to obtain two types of further contmumg consultant assistance from LUNDY m order to unprove the Denton Mumclpal Electric Utlhttes' operating effectiveness and efficiency Aceordmgly, the CITY and LUNDY desire to enter into tins second agreement, providing for further professional services to be performed by LUNDY as are more particularly set forth below m Article II hereof WITNESSETH, that in consideration of the covenants and agreements hereto contained, the CITY and LUNDY do hereby AGREE as follows ARTICLE I EMPLOYMENT OF CONSULTANT The CITY hereby contracts w~th LUNDY, as an independent contractor, and LUNDY hereby agrees to perform the senates herein in connection with the Project as stated ~n the Ameles to follow, with &llgence and ~n accordance with the baghest professional standards customarily obtained for such services m the State of Texas The professional senates set out here~n are in connection w~th the following described project The Project shall mclude without hm~tatlon, Consulting services to provide lnformaUon and guidance to the CITY, which will assist the CITY m positlomng its Electric Utility, m context w~th the CITY's general government, to most effectively and efficiently contribute to the successful pursmt of the mission statement of the C~ty's Utility Department ARTICLE II SCOPE OF SERVICES LUNDY shall perform the following serrates in a professional manner A To provide coaching, counseling, and/or guidance to selected key CITY managerial individuals respecting processes for 1 The delegation of operating goals and the tracking of results, 2 Interdepartmental commumcat~ons, coordination and cooperation, 3 The development or enhancement of a sprat of dedmatlon to continual operations improvement B To provide, in concert with the City Manager, Executive Director of Utdltles and the Director of Electric Utllmes, guidance and/or aaslStance m the continuation, expansion and potential enhancement of the successful process/improvement activities which they have lmtlated, and which are currently under way ARTICLE III PERIOD OF SERVICE Tins Agreement shall become effective upon execution by the CITY and LUNDY of ttus Agreement and upon issuance of a notaee to proceed by the CITY and shall remmn m force for the period wbaeh may reasonably be reqmred for the completion of the ProJect, and any required extensions approved by the CITY This Agreement may be sooner terminated m accordance with the provisions hereof Time is of the essence in tbas Agreement LUNDY shall make all reasonable efforts to complete the services set forth herein as experhtlously as possible and to meet the schedule estabhshed by the CITY, acting through its City Manager, its D~rector of Electric Utlht~es, or by the City Manager's designee ARTICLE IV COMPENSATION A COMPENSATION TERMS "Direct Non-Labor Expense" is defmed as that expense for any assignment incurred by LLrNDY for supplies, transportation, travel, commumcatlons, subsistence and lodging away fi.om home and s~rmlar mcldental expenses reasonably incurred m connection with that assignment B BILLING AND PAYMENT 1 For and in consideration of the professional services to be performed by LUNDY herein, the CITY agrees to pay LUNDY, a total fee, including reimbursement for direct non- labor expense not to exceed Twenty Thousand Dollars and No/100 ($20,000) Lundy Second Professional Servmes Agreement - Page 2 2 The fee for the services described m flus Agreement to be performed by LUNDY are to be billed the rate of $175 00 per hour, or $1,200 00 per eight hour day The parties agree that ~n no event shall LUNDY's d~rect non-labor expenses exceed ten (10%) percent of the mounts billed to the CITY for professional services 3 Partial payments to LUNDY wall be made by the CITY on the basis of detailed monthly statements rendered to and approved by the CITY through ~ts City Manager or hms designee However, under no c~rcumstances shall any monthly statement for services exceed the value of the work performed at the tame a statement ~s rendered The CITY may wathhold the final 5% of the contract mount untd completion of the Project 4 Nottung contmned m th~s Artmle shall reqmre the CITY to pay for any work winch is unsatasfactory as reasonably determined by the C~ty Manager or Ins designee, or winch is not subrmtted in eomphance wath the terms of this Agreement The C~ty shall not be reqmred to make any payments to LUNDY when LUNDY is m default under tins Agreement 5 It ~s spemfically understood and agreed that LUNDY shall not be authorized to undertake any work pursuant to tins Agreement which would reqmre additional payments by the CITY for any charge, expense or reimbursement above the maxunum not-to-exceed fee as stated, wathout first hawng obtained written authorization from the CITY C PAYMENT If the CITY fails to make payments due LUNDY for services and expenses within sixty (60) days after receipt of LLrNDY'S unchsputed statement thereof, the amounts due LUNDY w~ll be increased by the rate of one percent (1%) per month from the smd sixtieth (60th) day, and m addltaon, LUNDY may, after g~wng seven (7) days' written notme to the CITY, suspend sermees under tins Agreement untal LUNDY has been prod in full all amounts due for sermces, expenses and charges promded However, nothing herein shall reqmre the CITY to pay the late charge of one percent (1%) set forth herein if the CITY reasonably determines that the work of LUNDY ~s unsatasfactory, m accordance wath tins Artacle IV, Compensation ARTICLE V OBSERVATION AND REVIEW OF THE WORK LUNDY wall exermse reasonable care and due diligence ~n d~scovenng and promptly repomng to the CITY any defects or defimenmes m ins work or the work of any subconsultants performed hereunder Lundy Second Professional Services Agreement - Page 3 ARTICLE VI OWNERSHIP OF DOCUMENTS All documents prepared or furnished by LUNDY (or LUNDY's subconsultants) pursuant to this Agreement, are msUuments of service and shall become the property of the CITY upon the termination of this Agreement LUNDY Is entitled to retmn copies of all such documents The documents prepared and furnished by LUNDY are Intended only to be applicable to this Project and CITY'S use of these documents in other projects shall be at CITY'S sole risk and expense In the event the CITY uses the A4~reement m another project or for other purposes than specffied herein any of the lnformataon or materials developed pursuant to this agreement, LUNDY ~s released from any and all hablhty relattng to ~ts use m that project ARTICLE VII INDEPENDENT CONTRACTOR LUNDY shall promde services to the CITY as an independent contractor, not as an employee of the CITY LUNDY shall not have or clmm any right arising from employee status ARTICLE vm INDEMNITY AGREEMENT LUNDY shall mdenmlfy and save and hold harmless the CITY and its officers, agents, and employees from and agmnst any and all habthty, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney's fees incurred by the CITY, and including w~thout hm~tatton, damages for bodily and personal injury, death and property damage, resulUng from the negligent acts or omissions of LUNDY or any subconsultants, m performance of this Agreement Nothing m this A~reement shall be construed to create a habd~ty to any person who is not a party to this A~reement and nothing herein shall wave any of the party's defenses, both at law or equity, to any clmm, cause of acUon or h'agatton filed by anyone not a party to this Agreement, including the defense of governmental tmmunity, which defenses are hereby expressly reserved ARTICLE IX INSURANCE During the performance of the Serwces under this Agreement, LUNDY shall mamtmn the following insurance with an insurance company hcensed to do business m the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Careers of at least an "A-" or above A Automobile Llabthty Insurance wtth bodily injury hm~ts of not less 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 Lundy Second Professional Services Agreement - Page 4 B LUNDY shall furnish insurance cemficates or insurance policies at the CITY's request to evidence such coverages The insurance policies shall name the CITY as an ad&tional 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 30 days prior written notice to CITY and LUNDY In such event, the LUNDY shall, prior to the effective date of the change or cancellation, dehver 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 lnvolvmg one party's &sagreement may include the other party to the disagreement without the other's approval ARTICLE XI TERMINATION OF AGREEMENT A Notwithstanding any other provision of tins Agreement, either party may terminate tins Agreement by giving thirty (30) days advance written notice of termination to the other party B This Agreement may be terminated in whole or in part in the event of either party substantially failmg to fulfill its obhgat~ons under this Agreement No such termination will be effected unless the other party is given (1) wntten notice (delivered by cemfied mai1, return receipt requested) of intent to terminate and se~ng forth the reasons specifying the nonperformance, and not less than ten (10) business days m winch to cure the failure, and (2) an opportumty for consultation wuth the terminating party prior to termination C If this Agreement is terminated prior to completion of the services to be provided hereunder, LUNDY 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 LUNDY for all sermces properly rendered and satisfactorily performed and for reimbursable expenses to ternunatlon incurred prior to the date of termination m accordance with Article IV, Compensation Should the CITY subsequently contract with a new consultant for the contmuatlon of services on the Project, LUNDY shall cooperate in provl&ng mformatlon LUNDY shall mm over all documents prepared or furnished by LUNDY pursuant to tins Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use ARTICLE XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and hablhty of LUNDY, or any subeonsultants of LUNDY, for the accuracy and competency of thetr Lundy Second Professaonal Servtces Agreement - Page 5 designs or other work, nor shall such approval be deemed to be an assumption of such responslblhty by the CITY for any defect m the design or other work prepared by LUNDY, or any subconsultant of LUNDY ARTICLE XIII NOTICES All notices, commumcattons, and reports required or penmtted under this Agreement shall be personally delivered or marled to the respective pames by depositing same m the Umted States mini at the address shown below, certified mml, return receipt requested unless otherwise specified hereto Mmled notices shall be sent to the parties at the following addresses To LUNDY To CITY James L Lundy & Associates City of Denton ATTN James L Lundy ATTN Ted Benawdes, City Manager 901 In&aha Ave, State 250 215 E MclCdnney Wlctuta Falls, Texas 76301 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 marling ARTICLE XIV ENTIRE AGREEMENT Ttus Agreement consisting of Nme (9) pages constttutes 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, negotlattons, (hscusslons, commumcations and agreements which may have been made in connection with the subject matter hereof ARTICLE XV SEVERABILITY If any prowslon of tl~s Agreement is found or deemed by a court of competent j unschctlon to be invalid or unenforceable, it shall be considered severable fi.om the remmnder of th~s Agreement shall not cause the remainder to be invalid or unenforceable In such event, the party shall reform tins Agreement to replace such smcken provision with a valid and enforceable provision which comes as close as possible to expresstag the retention of the stricken provision ARTICLE XVI COMPLIANCE WITH LAWS LUNDY shall comply with all federal, state, local laws, roles, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended Lundy Second Professional Servxces Agreement - Page 6 ARTICLE XVII DISCRIMINATION PROHIBITED In perfonmng the services requnted hereunder, LUNDY shall not &scnmlnate against any person on the basis of race, color, rehglon, sex, national ongm or ancestry, age, or physical hanthcap ARTICLE XVIII PERSONNEL A LUNDY represents that he has secured, or will secure at ins own expense any addmonal personnel reqmred to perform all the services reqmred under tins Agreement Such personnel shall be subconsultants of LUNDY, and shall not be employees or officers of, nor have any contractual relations w~th the CITY LUNDY shall reform the CITY of any conflict of ~nterest or potential conflmt of interest that may arise dunng the term of this Agreement B All services required hereunder will be performed by LUNDY or under his supervision All personnel engaged in work shall be quahfied and shall be authorized and permitted under state and local laws to perform such semces ARTICLE XIX ASSIGNABILITY LUNDY shall not assign any interest m ttus Agreement and shall not transfer any interest in tlus Agreement (whether by assignment, novation or otherwise) without the prior written consent of the CITY ARTICLE XX MODIFICATION No wmver or mothficatlon of t/ns Agreement or of any covenant, condition, hnutat~on herein contmned shall be valid unless m writing and duly executed by the party to be charged therewith and no ewdence of any wmver or modfficat~on shall be offered or received m ex~dence in any proceechng arising between the parties hereto out of or affecting tlus Agreement, or the rights or obhgatlons of the part,es hereunder, and unless such wmver or modification is in writing, duly executed, and, the part,es further agree that the promslons of tlus section will not be wmved unless as herein set forth ARTICLE XVI MISCELLANEOUS A LUNDY agrees that CITY shall, until the expiration of three (3) years after the final payment under tins Agreement, have access to and the right to examine any d~rectly pe~nent books, documents, papers and records of LUNDY mvolwng transactions relating to this Agreement LUNDY agrees that the CITY shall have access dunng normal working hours to all Lundy Second Professmnal Servtces Agreement - Page 7 necessary LUNDY faclhtles and shall be prowded adequate and appropriate working space in order to conduct audits in comphance w~th thls section The CITY shall g~ve LUNDY reasonable advance notme of any mtended audits B Venue of any stat or cause of aetmn under tins Agreement shall he exclusively ~n Denton County, Texas Ttus Agreement shall be governed by, and construed ~n accordance w~th the laws of the State of Texas C For the purpose of tbas Agreement, the key person who will perform most of the work hereunder shall be James L Lundy However, nothing herem shall hm~t LUNDY from using other quahfied and competent members of bas firm to perform the servmes reqmred herein D LUNDY shall commence, carry on, and complete tbas ProJect w~th all apphcable dmpatch, ~n a sound, econouncal, effiment manner and in accordance w~th the provisions hereof In accomphstung the Project, LUNDY shall take such steps as are appropriate to ensure that the work ~nvolved is properly coordinated w~th related work being earned on by the CITY E The CITY shall asmst LUNDY by plamng at LUNDY's d~sposal all avmlable ~nformatlon pe~nent to the ProJect, including prewous reports, any other data relative to the project and arranging for the access to, and make all provisions for LUNDY to enter m or upon, pubhc and private property as reqmred for LUNDY to perform services under tbs Agreement F The captions of th~s Agreement are for ~nformattonal purposes only and shall not ~n any way affect the substantive terms or conditions ofttus Agreement 1N WITNESS WHEREOF, the C~ty of Denton, Texas has caused tins Agreement to be executed m duphcate original counterparts, by ~ts duly authorized C~ty Manager, and LUNDY has executed flus Agree~ment by~tfi duly authorized undersigned owner and proprietor on this the /~ ~--'~ day of ~_.J~E/Z~ ,1997 "CITY" CITY OF DENTON, TEXAS A Mmclpal Corporation Ted Benawdes, C~ty Manager Lundy Second Professional Services Agreement - Page 8 ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY James L Lundy & Assomates Name" James L Lundy T~tle Propnetor s ~sharedXcontra¢fise¢ond lundy agreement doe Lundy Second Profesmonal Services Agreement - Page 9 ATTACHMENT TO PROFESSIONAL SERVICES AGREEMENT BETWEEN LUNDY AND ASSOCIATES THE CITY OF DENTON, TEXAS Task Order B Reference is made to the Professional Services Agreement For Consulting Services Relating To The Denton Municipal Electric Utility (DMEU) and Lundy and Associates (Lundy) dated August 13, 1997 Lundy has performed professional services in conformance with this agreement and has been requested dunng the performance of these services and in anticipation of the future needs of DMEU to expand the serwces offered as noted below MODIFICATIONS TO PROJECT SCOPE Reference is made specifically to Appendix A attached to and made a part of the August 13,1997 agreement Item 3 The ong~nal scope of sennees called for interviews of up to forty people to be designated by DMEU However, at the request of DMEU, eight additional people were interviewed by Lundy Item 5 The original scope of services provided for one all-day workshop on team and operations effectiveness Because of the nature of DMEU's operations, a second session has been requested by DMEU so that only one-half of the supervisors and managers of DMEU will be removed from its operations at any g~ven time Item 6 The original scope of services provided for up to six hours of meetmgs for presentation o f the operations practices survey report This item' s allocated time was needed for meetings on September 25, 1997 At least one more meeting has been requested by DMEU BUDGET DMEU'$ costs to date include $10,650 00 in services and $810 07 m expenses as outlined m the itemized invoice of Lundy dated September 30, 1997 The invoice total of $11,460 07 plus $175 00 for not yet billed October 1997 services and $532 45 October exp~nses, plus the $2,400 for the forthcoming October 17, 1997 workshop (per Item 5) totals $14,567 52 In sp~te of the expanded scope of item three (a 20% increase m the number of interviewees), the total incurred and committed cost for DMEU is only approximately two percent above the original cost estimate of $14,250 00 Budget approval has been requested by DMEU to prowde for the followang servtces ¢ An add~tmnal one all day workshop (per ttem 6) to be billed at $1,800 (rather than $2,400) for the second sesston ,/ Retmbursement of addtttonal out-of-pocket expenses associated w~th rendenng the above consulting servtces should not exceed $300 00 through March 1998 ~ As with the prevtous budget, these cost estimates are based upon Lundy's understanding w~th DMEU regarding the anttctpated scope of ad&ttonal work Mutually agreed upon expanstons or contractions of the scope of the ant~ctpated dehverables will be expected to result m related increases or decreases tn Lundy's bflhngs Total professional fees and expenses pursuant to Task Order B shall not exceed the sum of $2,100 00 Authorized by Accepted by CITY OF DENTON, TEXAS LUNDY AND ASSOCIATES Ted l~enavtdes, City Manager Jam~s L Lundy, Proprietor Approved as to Legal Form Herbert LProuty, Ctty Attorney By '1~ ~ s ~shared~:ontract\lundy task order doc Task Order B - 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