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2008-072ORDINANCE NO. ~OOS^ D7Z AN ORDINANCE ACCEPTING SEALED PROPOSALS AND A WARDING A CONTRACT FOR THE SERVICES OF A MANAGEMENT CONSULTANT FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFSP 3930- MANAGEMENT STUDY OF ELECTRIC UTILITY AND SUPPORT SERVICES AWARDED TO NAVIGANT CONSULTING, INC. IN THE AMOUNT OF $259,750). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of Insurance Consultant Services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFSP NUMBER CONTRACTOR AMOUNT 3930 Navigant Consulting, Inc. $259,750 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for,such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~ 5t day of , 2008. ~,~ . Yn~`12~v PERRY R. McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY BY: /i 4-ORD- ~ 3930 PROFESSIONAL SERVICES AGREEMENT FOR MANAGEMENT STUDY OF ELECTRIC UTILITY AND SUPPORT SERVICES RFSP 3930 STATE OF TEXAS § COUNTY OF DENTON § THI AGREEMENT is made and entered into as of the ~ ~ day of 20 0,~ , by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215' East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Navigant Consulting, Inc., with its corporate office at 98 San Jacinto, Suite 900 Austin TX 78701, hereinafter called "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: ARTICLE [ 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 highest 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, RFP 3930 Management Study of Electric Utility and Support 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 necessary and as described in the OWNER's RFSP 3930, which is on file in the office of the City Secretary and the Purchasing Agent of the OWNER and made a part hereof as Exhibit "A" as if written word for word herein. B. To perform all those services set forth in CONSULTANT'S Proposal dated 12/26/08, which proposal is on file in the office of the City Secretary and the Purchasing Agent of the OWNER and made a part hereof as Exhibit "B" as if written word for word herein. Page 1 S:\prchlContracts Documents13930 Navigant Consulting PSA.doc3930 Navigam Consulting PSA ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue 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: "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of N/A 2. "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 a total fee, including reimbursement for direct non-labor expenses not to exceed $259,750. 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. The OWNER may withhold the final five percent (5%) of the contract amount until completion of the Project. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the 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 Page 3 S:\prchlContrac[s Documents\3930 Navigan[ Consulting PSA.doc3930 Navigam Consulting PSA 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 the Schedule of Charges at an hourly rate 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 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 the rate of one percent (1%) per month from the said thirtieth (30th) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (I%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." 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 fumished 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 4 S:\prch\Contracls Documents\3930 Navigant Consulting PSA.doc3930 Navigant Consulting PSA 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 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 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 $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not 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. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. D. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the Page 5 S:\prch\Contmcts Documents13930 Navigant Consulting PSA.doc3930 Navigant Consulting PSA OWNER as an additional insured on all such policies. CONSULTANT shall endeavor to provide OWNER with any cancellation or modification to its insurance policies. ARTICLE X[ ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution 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 fulfill 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, 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 Page 6 S:\prch\CoNrac[s Documents\3930 Navigant Consulting PSA.doc3930 Navigant Consulting PSA 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: Navigant Consulting, Inc. Heather Bailey 98 San Jacinto Austin, TX 78701 To OWNER: City of Denton DME Phil Williams 1701 Spencer Road Denton, Texas 76209 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 13 pages and two exhibits, 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 [he 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. 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. Page 7 S:\prch\Contracts Documents\3930 Navigant Consulting PSA.doc3930 Navigant Consulting PSA 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, 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. 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. 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. ARTICLE XXII MISCELLANEOUS A. The following exhibits, on file in the office of the City Secretary and the Purchasing Agent of the OWNER, are made a part of this Agreement: Exhibit A - RFP 3930, Management Study of Electric Utility and Support Services Exhibit B - Navigant Consulting, Inc proposal Page 8 S:\prch\Contracts Documents\3930 Vavigant Consulting PSA.doc3930 Vavigant Consuhing PSA 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 involving payments 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 in compliance with this section. OWNER shall give CONSULTANT reasonable advance notice of intended audits. C. 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. D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Heather Bailey and Team Members listed in Exhibit B. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. E. 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. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT'S disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions far the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. G. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. Page 9 S:\prch\Contracts Documents8930 Vavigant Consulting PSA.doc3930 Navigant Consuhing PSA IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTAi~j-T has executed this A reement through its duly authorized undersigned officer on this the~~ day of , 20~. CITY OF DENTON, TEXAS ~~ GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: CL.CiII~t~./ APPR VEDA O LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY BY:~~~~c_'~~6~ CONSULT,PNT ~~~~.~~.~ ~~tte~~o~ WITNESS: BY: Page 10 S:\prch\Contracts Documcnts\3930 ~lavigant Consulting PSA.doc3930 Vavigant Consulting PSA THIS PAGE INTENTIONALLY LEFT BLANK 1 Page 11 S:\prch\Commcts Documentsl7930 Navigant Consulting PSA.doc3930 Navigant Consulting PSA i CONFLICT OF INTEREST O ~ ESTIONNAIRE FORM CIQ For vendor or other person doing btisiness with local governmental entity This questionnaire is being fled in accordance with chapter 176 of the Local Government Code by a person doing business with the governmental entity. OFFICE USE ONLY By law this questionnaire must be filed with th records administrator of the local government not Date Receives 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. i i A person commits an offense if the person violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. I 1 Name of person doing business with local governmental entity. z ~ Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you fle an updated completed questionnaire with the appropriate filing authority not later than September 1 of the year for which an activity described in Section 176.006(a), Local Government Code, is pending and not later than the 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) I I 3 Describe each affiliation or business relatio nship with an employee or contractor of the local governmental entity who makes recommendations to a local govern ment officer of the local governmental entity with respect to expenditure of money. ~O~\~L. ~ I I 4 Describe each affiliation or business relatio nship with a person who is a local government officer and who appoints or employs a local government officer of the l ocal governmental entity that is the subject of this questionnaire. ` \~ ~-- AmenCeE 01 /1 312 0 0 6 Page l2 S:\prchlContmcts Documentsli930 Navigam Consulting PSA.doc3930 Navigant Consulting PSA CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity Page 2 5 Name of local government officer with whom filer has affiliation or business relationship. (Complete this section only if the Answer to A, B, or C is YES.) This section, item 5 including subparts A, B, C 8 D, must be completed for each officer with whom the flier has affliction or business relationship. Attach additional pages to this Form CIQ as necessary. A. Is the local government offcer named in this section receiving or likely to receive taxable income from the fler of the questionnaire? 0 Yes ~ No B. Is the filer of the questionnaire receiving or likely to receive taxable income from or at the direction of the local government offcer named in this se~clti~o~,n IAND the taxable income is not from the local governmental entity? 0 Yes I v i No C. Is the filer of this questionnaire affiliated with a corporation or other business entity that the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes ~ No D. Describe each affiliation or business relationship. B Desc`ri~b~e\any other aifiliation or business relationship that might cause a conFlict of interest. ~~~ 7 \~~ T 3~20~ o~ Signature of person doing business with the governmental entity Date aoe~eea ovi3naos Page 13 S:\prch\Contracts DocumentsU930 Navigan[ Consulting PSA.doc3930 Navigan[ Consulting PSA