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2013-204FILE REFERENCE FORM 2013-204 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials First Amendment - Ordinance No. 2016-022 02/02/16 JR ORDINANCE NO. 2013 -204 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH RESOLVED ENERGY CONSULTING, LLC, AUSTIN, TEXAS FOR UTILITY CONSULTING SERVICES FOR DENTON MUNICIPAL ELECTRIC FOR A THREE -YEAR PERIOD, IN AN AMOUNT NOT TO EXCEED $520,000; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5332 AWARDED TO RESOLVED ENERGY CONSULTING, LLC). WHEREAS, the City Council deems it necessary and appropriate and in the public interest to engage the utility consulting firm of Resolved Energy Consulting, LLC, Austin, Texas ( "REC "), to provide the City with professional services in the area of utility regulation and operation, and other related consulting services for Denton Municipal Electric ( "DME "); and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the hereinabove described professional services by Denton Municipal Electric, and that limited City staff cannot adequately perform the utility consulting and related services 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 of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and the City Council hereby finds and concludes that REC is appropriately qualified under the provisions of the law; to be retained as a utility consulting firm for the City and for Denton Municipal Electric, respecting this engagement; and WHEREAS, on the 20th day of August, 2013, this Professional Services Agreement for Utility Consulting Services ( "Agreement ") was considered by the Public Utilities Board in its open meeting, and the Board recommended approval by a vote of 5 to 0; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional services, as set forth in the Agreement attached hereto; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the preamble hereto are true and correct and are incorporated herewith as a part of this ordinance. SECTION 2. The City Manager is hereby authorized to execute a Professional Services Agreement for Utility Consulting Services with the firm of Resolved Energy Consulting, LLC, for professional consulting services for Denton Municipal Electric, in substantially the form of the Agreement which is attached hereto and is incorporated herewith by reference. 1 SECTION 3. The award of this Agreement is on the basis of the demonstrated competence and qualifications of the firm of REC, and the ability of REC, to perform the professional consulting and related services needed by the City for a fair and reasonable price. SECTION 4. The expenditure of funds as provided for in the attached Agreement is hereby authorized. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the 20th day of U l,l +— , 2013. Lj ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: 3 -ORD -File 5332 2 STATE OF TEXAS § COUNTY OF DENTON § PROFESSIONAL SERVICES AGREEMENT FOR UTILITY CONSULTING SERVICES [File No. 5332] THIS AGREEMENT is made and entered into as of the Z#' day of 2013, by and between the City of Denton, Texas, a Texas municipal corpoi tion, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and RESOLVED ENERGY CONSULTING, LLC., with its corporate office at 11044 Research Boulevard, Suite D -230, Austin, Texas 78759, hereinafter called "CONSULTANT;" each 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: 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 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, Electric Reliability Council of Texas ( "ERCOT "), Public Utilities Commission of Texas ( "PUCT "), and other regulatory activities respecting the City's Electric Utility, Denton Municipal Electric ( "DME "); attendance at such regulatory meetings; analysis of proposed policies and protocols; assist in the development of market financial and regulatory compliance; coordination with other market participants; work with outside legal and legislative consultants; market and rate analysis and monitoring; generation and development of cost savings options; support of development of natural gas pipeline distribution services. ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: A. The CONSULTANT shall perform all those services as are necessary and as described in the OWNER's "Scope of Services" (being two pages in length), which is attached hereto and made a part hereof as Exhibit "A." B. CONSULTANT shall perform all those services set forth in 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 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 III ADDITIONAL SERVICES Any additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above - described Basic Services, will be described in a separate written agreement, agreed to by both parties. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement 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, 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, acting through its City Manager or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: "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. 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 at an hourly rate shown in Exhibit `B" which is attached hereto and made a part of this Agreement a total fee, including reimbursement for direct non -labor expenses not -to- exceed $520,000. Partial payments to the CONSULTANT will be made on the basis 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 time a statement is rendered. Page 2 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. 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, without first having obtained written authorization from the OWNER. The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be paid based on rates shown in Exhibit "B." Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection V.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 thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by interest at the rate specified as "Prompt Payment Interest," as specified by Texas statutory law, Section 2251.025, Texas Government Code.. ARTICLE VI 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 subcontractors or subconsultants. ARTICLE VII 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. Page 3 ARTICLE VIII 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. ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall 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. Nothing in this Agreement shall be construed to create a liability to any person who is not a parry 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 X 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 $1,000,000 for each occurrence and not less than $1,000,000 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. Page 4 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 to the extent that is legally possible. CONSULTANT shall endeavor to provide OWNER with any cancellation or modification to its insurance policies. ARTICLE XI 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 party's disagreement, may include the other party to the disagreement without the other's approval. ARTICLE XII 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 falfill 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 thirty (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 to termination incurred prior to the date of termination, in accordance with Article V "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 XIII 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, Page 5 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 responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. ARTICLE XIV 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 three (3) days' mailing: To CONSULTANT: Resolved Energy Consultants, LLC 11044 Research Boulevard, Suite D -230 Austin, Texas 78759 Attn: Bill Starnes, Partner To OWNER: City of Denton, Texas George C. Campbell, City Manager 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of nine (9) pages, Exhibit "A" of three (3) pages, Exhibit "B" of one page, the City of Denton Insurance Requirements for Contractors of six (6) pages, and form CIQ (Conflict of Interest Questionnaire) of one page, 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 XVI 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. Page 6 ARTICLE XVII 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 XVIII 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 XIX 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 any 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 XX 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. OWNER is relying on the expertise and professional qualifications of CONSULTANT. ARTICLE XXI 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. Page 7 ARTICLE XXII MISCELLANEOUS A. The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONTRACTOR shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the CONTRACTOR shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1 % or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONTRACTOR which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms "books" "records" "documents" and "other evidence" as used above shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. B. 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. C. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Bill Starnes, Partner and his staff. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. D. 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. E. 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 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. F. 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. Page 8 IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the M61 day of U , 2013. "OWNER" CITY OF DENTON, TEXAS A Texas Municipal Corporation By: L diff-ORGt C. CAMPBEL , CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY r By: ,� Q dAv� APP VEDA TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: ATTEST: "CONSULTANT" RESOLVED ENERGY CONSULTING, LLC A Limited Liability Company By: BILL STARNES, PARTNER Page 9 CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of bid award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to bid opening, since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the bid. Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted.• • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- (VII or better). Any deductibles or self - insured retentions shall be declared in the bid proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: • Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this Page 10 insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled before the expiration date. • Should any of the required insurance be provided under a claims -made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. Page 11 SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate. [X] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits . of not less than each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Page 13 ATTACHMENT 1 [ ] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and Page 14 2) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2) provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3) provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4) obtain from each other person with whom it contracts, and provide to the contractor: a) certificate of coverage, prior to the other person beginning work on the project; and b) a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and Page 15 7) contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self - Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Page 16 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. Name of person who has a business relationship with local governmental entity. 2 ❑ Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7'h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? 0 Yes 0 No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes F7 No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? 0 Yes 0 No D. Describe each affiliation or business relationship. 4 Signature of person doing business with the governmental entity Date Adopted 06/29/2007 A MW RESOLVED ENERGY CONSULTING Exhibit A Scone of Services Task A ERCOT, PUC and Other Regulatory Activities Task A -1 Attend ERCOT, PUC, and Other Meetings 1. REC will keep abreast of activities at both ERCOT and the PUC and will attend meetings, as directed by DME related to existing market operations and implementation of the nodal market design. 2. REC will participate in meetings, as necessary, to represent DME interests. Meetings to be attended include, but are not limited to, the Wholesale Market Subcommittee ( "WMS "), Technical Advisory Committee ( "TAC "), and ERCOT Board meetings as appropriate. 3. REC will work with DME to develop advocacy positions and strategies for working with other ERCOT stakeholders. 4. REC will analyze and monitor the activity of other regulatory agencies as directed by DME including, but not limited to, the Texas Railroad Commission ( "RRC ") and Texas Commission on Environmental Quality ( "TCEQ ") which are agencies that impact utility operations from time to time, among others. Task A -2 Analyze Proposed Policies and Protocols 1. REC will analyze proposed market design protocols and identify and report concerns regarding DME's ability to effectively function in the ERCOT market. 2. REC will meet with ERCOT, state regulatory agencies and other stakeholders, as requested by DME, to discuss and negotiate, if necessary, nodal market issues and to mitigate negative impacts on DME. Task A -3 Financial and other Regulatory Compliance 1. REC will work with DME to develop market and financial compliance and risk management procedures as well as address issues, as needed, including, but not limited to, Sarbanes -Oxley and Dodd -Frank compliance activities. Task B Working With Other Affected Parties Task B -1 Coordination With Other Market Participates 1. REC will coordinate with other affected municipalities, organizations, cooperatives, and associations within ERCOT, where appropriate, to mitigate the adverse impacts of market protocol revisions. 2. REC will participate in meetings, with other market participants, to develop strategy and advocacy positions. Page 18 RESOLVED MW ENERGY CONSULTING 3. REC will develop materials, as needed, to assist in educating legislators, media and other market participants on nodal market issues. Task B -2 Work With Legal Council 1. REC will work with DME in -house and external legal counsel to develop ERCOT market positions and strategies to keep them apprised of changes that could potentially affect DME. 2. REC will work with DME and legal counsel to assist them in preparing any challenges to nodal market design or ERCOT proposed implementation plans that may adversely affect DME. Task B -3 Work With DME Legislative Consultants 1. REC will work with DME legislative consultants as necessary, to educate them on ERCOT - related market issues and to apprise them of proposed market changes that could potentially affect DME. Task C Market Analysis 1. At the request of DME, REC will provide research and analysis of issues regarding the electric market, natural gas market, and operations of the nodal market including rates, DME operations, supply procurement, and other issues as they may arise. 2. REC will provide reports and analysis of its efforts and work with DME on issues analysis and response. Task D Rate Analysis and Monitoring 1. At the request of DME, REC will review DME retail electric rates based on updated information that may be derived from the City's CAFR, Earnings Monitoring Reports ("BMW'), DME budgets or planning projections, other information provided by DME, or other sources, to insure DME rates are effectively covering actual or anticipated DME expenses. REC will inform DME of the findings from any review. 2. At the request of DME, REC will review DME's Transmission Cost of Service ( "TCOS ") rates and revenues based on TCOS project additions and PUC reviews and report findings and provide strategies for TCOS rate filings and adjustments. Page 19 .. RESOLVED _ ENERGY CONSULTING Task E Generation and Development of Cost Savings Options 1. REC will identify revenue generating and cost savings opportunities for DME ratepayers based on current or proposed changes in regulations and legislation affecting electric utility operations. As appropriate, REC will analyze proposed changes and quantify the rate savings opportunities for ratepayers whenever possible. As directed by DME, and where appropriate, REC will work with outside parties to effectuate the implementation of strategies regarding revenue generating and cost savings opportunities. 2. REC will perform acquisition and/or divestiture analyses of physical or contractual assets that could potentially provide cost savings or stabilize rates for the DME ratepayers. REC will work with DME and outside parties in the implementation of identified strategies. Task F Natural Gas Distribution Services 1. REC will work with DME personnel to support development and operation of its industrial natural gas pipeline distribution system. REC's work will initially focus on, but not be limited to, development and maintenance of tariffs and rate schedules for gas distribution services, policies and procedures for nominations, scheduling of gas supplies and/or transportation, terms of service, and contracts for natural gas sales and distribution. In addition, REC will assist DME in developing procedures to administer and maintain compliance with contracts and regulatory reporting requirements and other duties as requested by DME. Task G Other Services 1. REC will assist DME with other analyses and project work as directed by DME. Page 20 ARESOLVED _ ENERGY CONSULTING Exhibit B FEES FOR SERVICES Professional and support services shall be billed at the following rates: Title Hourly Rate Managing Director $250.00 Executive Consultant $240.00 Sr. Management Consultant $225.00 Management Consultant $205.00 Sr. Consultant $190.00 Consultant $175.00 Assistant Consultant $160.00 Technical Assistant $125.00 Research Assistant $ 95.00 Data Specialist $ 85.00 Administrative Assistant $ 60.00 The above rates shall be adjusted each year, commencing January 1, 2012, to reflect the change in rates officially established by ReSolved Energy Consulting. Reproduction, printing, communications, computer services, and other miscellaneous support services shall be billed at rates for such services as determined from time to time and officially established by ReSolved Energy Consulting. All travel, food, lodging, and other work - related expenses, except automobile mileage, associated with the provision of services hereunder shall be billed at cost. Automobile mileage shall be billed at the mileage rate as published by the Internal Revenue Service from time to time. Client shall pay to ReSolved Energy Consulting any applicable sales tax, if in fact there is any sales tax lawfully owing, which arises from, and becomes due and owing regarding services performed by Resolved Energy Consulting. Page 21