2006-334ORDINANCE NO.,2~,Qo~ -33 y
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ACCEPT AN INTERLOCAL
AGREEMENT WITH THE LOWER COLORADO RIVER AUTHORITY (LCRA) TO
AUTHORIZE PARTICIPATION IN VARIOUS LCRA CONTRACTS FOR THE PURCHASE
OF VARIOUS GOODS AND SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR; AND DECLARING AN EFFECTIVE DATE (FILE 3623-INTERLOCAL
AGREEMENT WITH THE LOWER COLORADO RIVER AUTHORITY).
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee is hereby authorized to execute the
Interlocal Cooperative Purchasing Program Agreement with the Lower Colorado River Authority
under Section 271.102 of the Local Government Code, a copy of which is attached hereto and
incorporated by reference herein (the "Agreement').
SECTION 2. The City Manager, or his designee is authorized to expend funds pursuant
to the Agreement for the purchase of various goods and services.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the _a day of 6JMIV-1 -11 2006.
f1k,
PERK . McNEILL, MAYOR
ATTEST:
JENNIFER WALTER S, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY7
2-O ntulocal Agreement Wi i
INTERLOCAL COOPERATION AGREEMENT
THIS INTERLOCAL COOPERATION AGREEMENT is signed into on the date
written below by and between the Lower Colorado River Authority (LCRA), a
conservation and reclamation district of the State of Texas (Performing Agency), and
the City of Denton (Receiving Agency), Texas referred to as the Parties, pursuant to the
authority granted by and in compliance with the Texas Interlocal Cooperation Act, Tex.
Gov. Code, Ch. 791. It is intended to record and implement an agreement reached
between the Parties and partially performed prior to execution. The Scope of Services
shown below shall be performed and completed by the Performing Agency in
accordance with this Agreement.
1. PARTIES:
The parties to this Agreement are the Lower Colorado River Authority (LCRA), a
conservation and reclamation district of the State of Texas and the City of Denton,
Texas (City or Customer), an incorporated municipality of the State of Texas
U. LCRA RESPONSIBILITIES The purpose of this new Agreement is to allow the City
to receive the benefits of the Material Alliance (Alliance) established by LCRA with the
Vendor. The parties believe that cooperating in the purchasing of various goods,
materials, equipment and supplies which both parties use in carrying out their
governmental functions and services will enable the parties to obtain these goods,
materials, equipment and supplies on better terms and/or prices than by making such
purchases individually, and both desire to increase efficiency and effectiveness of such
purchasing by acting jointly in competitively procuring selected goods, materials,
equipment and supplies. In order to accomplish this purpose LCRA. has provided or
shall provide the following services to Customer:
1. LCRA shall permit the City to have access to its materials acquisition program.
2. The selected vendor meets or exceeds the criteria required and desired for
furnishing materials to LCRA and its customers.
3. The selected Vendor will be monitored by LCRA at regular intervals to assure
that the program is beneficial to the participants.
4. The selected Vendor may furnish materials for up to five (5) years from program
inception with at least an annual review of performance of the Vendor.
III. CITY RESPONSIBILITIES
LCRA has contracted with a Vendor who has agreed to sell to LCRA's customers at
preferred prices. The City hereby subscribes to the Alliance, subject to the following
terms and conditions:
1. The Vendor will be providing the following products: electrical, natural gas,
water/sewer, CAN/telephone, sport lighting, fiber optic, and telecommunication.
2. The Customer will deal directly with the Vendor in the ordering, shipping, and
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paying invoices.
3. Vendor will provide customer with a customer specific electronic procurement
WEB page. Fax or telephone ordering also is available.
4. The Vendor will not charge shipping charges for the.routine route delivery to the
Customer from Vendor's warehouse.
5. Vendor will be available to deliver material at least weekly to Customer.
6. The Vendor may deliver materials directly to the jobsite when prior arrangements
have been made between the Customer and the Vendor.
7. The Vendor may purchase excess materials from the Customer to reduce
Customers inventory.
8. The Vendor agrees to maintain a stock of material for emergencies to be
delivered to the customer within 48 hours.
9. The Vendor will be available 24 hours per day 7 days per week for Customer to
contact.
10. Vendor will unload Customer's purchases at customer's warehouse or directly to
the jobsite.
11. Vendor can provide training on use of new material.
12.Vendor will provide improved communication concerning product availability and
pricing movement.
13.Vendor can provide "kiting" assembling and packaging material by unit
designation.
14. Vendor will provide an emergency backup stock.
15.Vendor will not charge a restocking charge for return of unused material if
Customer meets Vendor's criteria for such actions.
16.Vendor will provide new transformers on consignment at customer's location if
customer purchases all transformers and most other distribution materials from
vendor.
17.The vendor will provide and maintain emergency stock of larger pad-mounted
transformers or other agreed upon items so that each utility will not have to
maintain expensive inventory or backup units for reliability purposes if customer
purchases all transformers and most other distribution materials from vendor.
IV. CONTRACT TERM
The primary contract term for this Program Agreement shall be for one year. This
Agreement shall be automatically renewed each year unless terminated by either party,
provided, however that this contract shall not extend beyond the life of LCRA's contract
with the vendor.
V.
Either party may terminate this Agreement, by giving a ninety (90) day notice to the
other party. Termination of this Agreement shall not affect any Agreement for Technical
Services or other Agreement between the Parties, but termination of an Agreement for
Technical Services automatically terminates this Agreement. If this Agreement is
terminated, any overpayment of the retainer shall be reimbursed to the Customer after
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the costs of services have been paid.
VI. PRICE OF SERVICES: See Section VIII, below.
VII. REIMBURSABLE COSTS & EXPENSES:
Not Applicable to This Contract.
VIII. FEES & PAYMENT TERMS:
The Initial fee to join the Material Acquisition program is $100.00. Thereafter,
beginning November 1, 2006 the program fee will be $35/month plus 2.5% of the
previous month's purchases, but not to exceed $250/month. The monthly fee will be
updated to be effective January 1s` of each year and will be constant thereafter for one
complete year. LCRA will invoice City monthly for the fees hereunder. The City shall
pay LCRA not later than 30 days following receipt of LCRA's invoice.
IX. WARRANTY DISCLAIMERS
Disclaimer of Warranties. LCRA is not a merchant with respect to any goods sold by the
Vendor. LCRA makes no warranties express, statutory or implied with respect to any
goods purchased by the City from the Vendor, particularly, but without limitation,
warranties of merchantability, fitness for a particular purpose, non-infringement and title.
The only warranties made with respect to the goods purchased from the Vendor shall be
those provided by the Vendor or the manufacturers it represents, if any.
X. MISCELLANEOUS
(a) Authority. The Parties certify that (1) the Scope of Services specified above
are necessary and essential for activities properly within their statutory functions;
(2) the provisions of this Agreement serve the interest of efficient and economical
administration of State or Local Government; and (3) the services, supplies and/or
materials contracted for are not required by Article 16, Section 21 of the
Constitution of State of Texas or by any applicable statute to be procured
according to a bid process.
The Receiving Agency further certifies that it has the authority to receive the above
Services by authority granted in its enabling legislation and Ch. 791 of the Texas
Government Code.
The Performing Agency further certifies that it has the authority to perform the
above services by authority granted in its enabling act and Chapter 791 of the
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Texas Government Code.
(b) Independent Contractor. Each party shall be an independent contractor with
respect to the other. Neither this Contract nor any Purchase Order issued to the
Vendor under it shall be construed as a partnership, joint venture or any other type
of business entity, which would make a party responsible for or liable for any action
of the other party.
(c) Compliance with all Laws. Each party shall comply with all applicable Federal,
State, and local laws, and all standards, rules, administrative agency regulations,
and orders issued pursuant to such laws and regulations.
(d) Non-exclusivity. The Contract is not exclusive. LCRA has the right to make
the Alliance available to other LCRA customers during the term of the Contract,
and the City has the right to purchase goods from others goods the same as or
similar to those available under the Alliance.
(e) Severability. This Contract is severable and if any one or more parts of it are
found to be invalid, such invalidity shall not affect the remainder of this Contract if
the remainder can be given effect without the invalid parts.
(f) Limitations of Liability. Neither party shall be liable to the other in tort,
contract, warranty, strict liability, statute or otherwise for special, indirect,
incidental, punitive, exemplary or consequential damages (including, without
limitation, lost earnings, lost generation, lost business opportunities, business
interruption, or lost profits), regardless of whether the possibility of such damages
has been disclosed or could have been reasonably foreseen.
(g) Non-Recourse. Neither party shall have recourse against the board of
directors, city council, individual directors, council members, officers, agents,
servants or employees of the other in connection with any liability that might arise
under this agreement, termination of this agreement, or in connection with the
Alliance or the Vendor, whether such liability arises in tort (including negligence,
gross negligence or willful misconduct), contract, warranty, strict liability, statutory
liability or any other theory of law.
(h) Third Party Beneficiaries. There are no third party beneficiaries to this
Contract (or to any Purchase Order issued under it) and the provisions of this
Contract shall not create any legal or equitable right, remedy or claim enforceable by
any person, firm, or organization other than the Parties and their permitted
successors and permitted assigns.
(i) Ethics. The City agrees to conduct its business with LCRA in conformity with
sound business and ethical practices as required by LCRA's Board and shall not
offer benefits or gratuities in any form that could be construed as an attempt to
influence LCRA's conduct of business. Violation of this policy shall constitute a
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material breach of the Agreement and shall permit LCRA, at its option, to cancel the
Contract without incurring liability.
Q) Assignment Prohibited. The City and LCRA agree that neither can assign this
Contract without the written consent of the other Party.
(k) Notices. All notices or other communications required under this Contract may
be effected either by personal delivery in writing or by certified mail, postage prepaid,
return receipt requested. Notice shall be deemed to have been given when delivered
or mailed to the Parties at their respective addresses as set forth below or when
mailed to the last address provided in writing to the other Party by the addressee.
Performing Agency: Receiving Agency:
Lower Colorado River Authority City of Denton
C/o Allan Kunze Karen E. Smith
Manager, Customer Services Senior Buyer
P.O. Box 220 901-B Texas Street
Austin, Texas 78767 Denton, Texas 76209
(1) Mitigation of Damages. In all cases a Party establishing or alleging a breach
of contract, or a right to be indemnified in accordance with this Contract shall be
under a duty to take all necessary measures to mitigate the loss which has
occurred, provided that it can do so without unreasonable inconvenience or cost.
(m) Alternate Dispute Resolution. The Parties agree that in the event of a
dispute concerning the performance or non-performance of any obligations
flowing from or as a result of this Contract, the Parties will voluntarily submit the
dispute to the Travis County Dispute Resolution Center for resolution through
mediation as though it were referred through the operation of the Texas
Alternative Dispute Resolution Procedures Act, Title 7, Chapter 154, TEX. CIV.
PRAC. & REM. ANN., (Vernon's 1986). No record, evidence, statement, or
declaration resulting from or in connection with such alternate dispute resolution
procedure may be used in evidence in subsequent litigation except to
demonstrate that this article has been complied with in good faith by either Party.
The requirements of the Governmental Dispute Resolution Act, Government
Code, Chapter 2009, shall apply as appropriate.
(n) Governing Law/Venue. In the event that litigation results from or as a result
of this Contract, venue for all actions shall be in a state court of competent
jurisdiction in Travis County, Texas. The substantive law applicable to such
litigation shall be that of the State of Texas, without regards to its choice of law
provisions.
(o) Integration of Contract. This Contract represents and contains the entire
agreement and understanding between the Parties with respect to the Alliance and
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supersedes any and all prior or contemporaneous oral and/or written agreements
and understandings. No representations, warranty, condition, understanding or
agreement of any kind with respect to the subject matter of this Contract shall be
relied upon by the Parties unless incorporated into this Contract. This Contract
may not be amended or modified except by a writing executed both by an
authorized representative of LCRA and by an authorized representative of the City
of Denton.
By execution of this Agreement, Each party represents to the other that:
a. In performing its duties and obligations hereunder, it will be carrying out one or
more governmental functions or services which it is authorized to perform;
b. The undersigned officer or agent of the party has been properly authorized by
that party's governing body to execute this Agreement and that any necessary
resolutions extending such authority have been duly passed and are now in
effect;
c. All payments required or permitted to be made by a party will be made from
current revenues available to the paying party; and
d. All payments provided to be made hereunder by one party to the other shall be
such amounts as to fairly compensate the other party for the services or
functions performed hereunder.
IN WITNESS WHEREOF, the Receiving Agency 9t eeerforming Agency
ve ma 0e and entered into this Agreement on this day of
\0 006.
kLower rado iver Authority
By:
Title; ~skc~ /~~~ye✓
City of D on
By:
Title:
APPROVED AS TO FORM:
CITY ATTORNEY
CITY OF DENTON, TEXAS,
BY: _
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