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2007-149FILE REFERENCE FORM 2007-149 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILES liate tnit~ais First Amendment to Agreement -original is attached 01/09/08 )R Second Amendment to Agreement -Ordinance No. 2008-170 08/05/08 ) R ORDINANCE NO. 2007-~~_ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH R. J. COVINGTON CONSULTING, LLC FOR CONSULTING SERVICES RELATING TO TASK ORDER NO. 07-D PROVIDING FOR CONTINUING REGULATORY SERVICES AT THE ELECTRIC RELIABILITY COUNCIL OF TEXAS RELATED TO TRANSITION TO A NODAL MARKET DESIGN IN THE TEXAS ELECTRIC MARKET; AND TO KEEP DENTON MUNICIPAL ELECTRIC STAFF INFORMED OF THE STATUS OF THE TRANSITION DESIGN PROCESS AND WILL ALERT DENTON MUNICI[AL ELECTRIC REGARDING ANY ISSUES THAT MAY AFFECT THE ABILITY OF DENTON MUNICIPAL ELECTRIC TO SERVCE ITS CUSTOMERS IN ACOST-EFFECTIVE AND COMPETITIVE MANNER, AND OTHER RELATED PROFESSIONAL SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public interest to continue to engage the firm of R. J. Covington Consulting, LLC of Austin, Texas ("Covington"), to provide further professional consulting services to the City relating to Task Order No. 07-D; which includes, without limitation, services at the Electric Reliability Council of Texas ("ERGOT") related to transition to a nodal market design in the Texas electric market; services to keep Denton Municipal Electric ("DME") staff informed of the status of the transition design process; and services that will alert DME staff of any issues that may affect the ability of DME to serve its customers in acost-effective and competitive manner; and for other professional services; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional services, and that limited City staff cannot adequately perform the services and tasks 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 on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, Covington has represented DME continuously and professionally over the last ten (10) years, and has proven to be a valuable, reliable, affordable, and competent professional resource that has expertise in, and is well-acquainted with the electric operations as well as the financial and regulatory framework of Denton Municipal Electric. Covington and his staff are particulazly familiaz with the characteristics, operations, and present rate structure of DME Covington's operations aze located in Austin, Texas; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional services, as set forth in the Professional Services Agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: The City Manager is hereby authorized to execute a Professional Services Agreement with R. J. Covington Consulting, LLC of Austin, Texas, for professional consulting services relating to Task Order No. 07-D relating to the City and to Denton Municipal Electric, in an amount not to exceed $80,000; in substantially the-form of the Professional Services Agreement that is attached hereto and incorporated herewith by reference as Exhibit "A." SECTION 2: The award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Covington and the ability of Covington to perform the professional services needed by the City for a fair and reasonable price. SECTION 3: The expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~ day of , 2007. ~~~~.~ PERRY cNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: 4 , 2 STATE OF TEXAS § COUNTY OF DENTON § PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES PERTAINING TO DENTON MUNICIPAL EL/E~jCTRIC THIS AGREEMENT is made and entered into on the ~ / ~"" day of 2007; but effective from and after June 1, 2007, by and between the City of D ton, exas, a Municipal Corporation, with its principal office at 215 East McKinney Street, Denton, Texas 7620] ("CITY"); and R. J. COVINGTON CONSULTING, LLC, a Texas Limited Liability Corporation, with its principal office at ] 1044 Research Boulevard, Suite A-325, Austin; Texas 78759; hereafter "COVINGTON"; acting herein by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants, promises and agreements herein contained, the CITY and.COVINGTON do hereby AGREE as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The CITY hereby contracts with COVINGTON; as an independent contractor, and COVINGTON hereby agrees to perform the services herein in connection. with the Scope of Services as stated in the Articles to follow as well as the Task Orders, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. ARTICLE II SCOPE OF SERVICES A. COVINGTON shall provide to the CITY professional consulting services pertaining to assisting Denton Municipal Electric ("DME") in continuing existing monitoring acti~~ties at the Electric Reliability Council of Texas ("ERGOT"), related to transition to a nodal mazket design in the Texas electric market. COVINGTON will keep DME staff informed of the status of the transition design process and will alert DME staff of any issues that may affect the ability of DME to serve its customers in acost-effective and competitive manner. RJC will also assist DME staff and legal counsel re interventions made in these proceedings. RJC will also review the future needs of DME in order to successfully operate in the new market structure being implemented by ERGOT. The needs assessment includes consideration of how to minimize locational marginal prices, risk management techniques to minimize exposure to congestion costs, how to maximize the value of Congestion Revenue Rights ("CRR"), as well as other market activities needed to be successful in the new nodal market environment. COVINGTON agrees to perform those services and tasks more particularly and specifically described in Task Order No. 07-D that is attached hereto and incorporated herewith by reference. B. To consult with the City Manager, Assistant City Manager/lJtilities, the General Manager of DME, the Utility Attorney, and any other desi~mated administrative personnel regazding any and all i aspects of the services to be performed pursuant to this Agreement. ARTICLE LlI PERIOD OF SERVICE This Agreement shall become effective retroactively on the Is' day of June, 2007 and upon the issuance of a notice to proceed by Denton Municipal Electric ("DME"). The termination date of this Agreement shall be upon the earliest to occur of the following events: completion of the work described herein and in the attached Task Order No. 07-D; or upon the depletion and exhaustion of the 580,000 not-to-exceed amount provided for herein; or upon fifteen (15) day's written notice to terminate, issued by the General Manager of DME. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this A+~eement. COVINGTON shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its General Manager of DME. ARTICLE IV COMPENSATION A. COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder by COVINGTON for supplies, long-distance telephone; telecopier, reproduction expense, overnight courier, photocopy expense, transportation, travel, communications, subsistence and lodging away from home and similar incidental expenses reasonably incurred in connection with that assignment. B. BILLING AND PAYMENT: 1. For and in consideration of the professional services to be performed by COVINGTON herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct non-labor expense, not to exceed 580,000 for those services described in Task Order No. 07- D. 2. The fee for the services described in this Agreement to be performed by COVINGTON are to be billed at the rates previously agreed to. Billing shall be reported in minimum one- quarter (l /4) hour increments. 3. Payments to COVINGTON will be made by the CITY on the basis of detailed monthly statements rendered to the CITY through its General Manager of DME. The fee bills as submitted, shall be allowed and approved by the General Manager of DME. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. 4. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory as reasonably determined by the Assistant City Manager for Utilities or the General Manager of DME; or which is not submitted in compliance with the terms of this z Agreement. The City shall not be required to make any payments to COVINGTON when COVINGTON is in default under this Agreement. 5. It is specifically understood and agreed that COVINGTON shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense or reimbursement above the maximum not-to- exceed fee as stated, without first having obtained written authorization from the CITI'. C. PAYMENT If the CITY fails to make payments due COVINGTON for services and expenses within forty (40) days after receipt of COVINGTON'S undisputed statement thereof. the amounts due COVINGTON will be increased by the rate of one percent (1 %) per month from the said forty (40th) day, and in addition, COVINGTON may, after giving ten (]0) days' written notice to the CITY, suspend services under this Agreement until COVINGTON has been paid in full all amounts due for services, expenses and charges provided. However, nothing herein shall require the CITY to pay the late charge of one percent (1 %) set forth herein if the CITY reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such defect. ARTICLE V OBSERVATION AND REVIEW OF THE WORK COVINGTON will exercise reasonable caze and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in his work or the work of any subconsultants performed hereunder. ARTICLE VI OWNERSHIP OF DOCUMENTS All documents, analyses and other data prepared by COVINGTON under this Agreement ("Work Products") are instruments of service and are and shall remain the property of CITY. COVINGTON shall have the right to make and retain copies and use all Work Products; pro~~ided, however, the use shall be limited to the intended use for which the services and Work Products are provided under this Agreement. COVINGTON may use and may copyright certain non-sensitive Work Products as property of COVINGTON; provided that prior written approval is obtained from CITY, whose approval shall not be unreasonably withheld, and providing that copywriting will not restrict CITY'S right to retain or make copies of the Work Products for its information, reference and use on the Project or services under the Agreement. 3 The Work Products shall not be changed or used for purposes other than those set Forth in this Agreement without the prior written approval of COVINGTON. If CITY releases the Work Products to a third party without COVINGTON'S prior written consent, or changes or uses the Work Products other than as intended hereunder, CITY does so at its sole risk and discretion and COVINGTON shall not be liable for any claims or damages resulting from or connected with the release or any third party's use of the Work Products. ARTICLE VII INDEPENDENT CONTRACTOR COVINGTON shall provide services to the CITY as an independent contractor, not as an employee of the CITY. COVINGTON shall not have or claim any right arising from employee status. ARTICLE VIII INDEMNITY AGREEMENT COVINGTON shall indemnify and save and' hold harmless the CITY 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's fees incurred by the CITY, and including without limitation, damages for bodily and personal injury, death and property damage, and damage for professional malpractice resulting from the negligent acts or omissions of COVINGTON or any subconsultants, in performance of this Agreement. COVINGTON'S liability under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as set forth in Article IX. 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 party's 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 IX INSURANCE During the performance of the Services under this .Sgreement, COVINGTON 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 Carvers 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 5500,000 in the aggregate, and with property damage limits of not less than 5700,000 for each occurrence, and not less than 5100.000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than 500,000 for each 4 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 policy limits of not less than $1,000,000 annual aggregate. D. COVINGTON shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the CITY as an additional 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 thirty (30) days prior written notice to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of the change or cancellation, deliver 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 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 XI LIMITATION OF LIABILITY To the extent permitted by law, the total liability of COVINGTON to CITY for any and all claims arising out of this Agreement, whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution; or indemnity claims based on third-party claims; shall not exceed one million dollars ($1,000,000). ARTICLE XII CONSEQUENTIAL DAMAGES In no event and under no circumstances shall COVINGTON be liable to CITY for any interest, loss of anticipated revenues, earnings, profits, or increased expense of operations; or for any consequential, indirect or special damages. ARTICLE XIII PROFESSIONAL STANDARDS COVINGTON will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same degree of similar services. No other warranty or guarantee; expressed or implied, is made with respect to the services furnished under this Agreement and all implied warranties are disclaimed. s ARTICLE XN TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate this 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 failing to fulfill its obligations under this Agreement. No such termination will be effected 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 nonperformance, and not less than ten (] 0) business days in which to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If this Agreement is terminated prior to completion of the services to be provided hereunder, COVINGTON shall immediately cease all services and shall render a final bill for services to the CITY within thirty (30) days after the date of termination. The CITY shall pay COVINGTON 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 IV, Compensation. Should the CITY subsequently contract with a new consultant for the continuation of services on the Project. COVINGTON shall cooperate in providing information. COVINGTON shall turn over all documents prepared or furnished by COVINGTON pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of COVINGTON, or any subconsultants of COVINGTON, for the accuracy and competency of their designs or other work product. ARTICLE XVI 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 at the address shown below, certified mail, return receipt requested unless otherwise specified herein. Mailed notices shall be sent to the parties at the following addresses: To COVINGTON: R.J. Covington Consulting, LLC Attn: Richard J. Covington, President 11044 Research Blvd.. Suite A-325 Austin. Texas 78759 To CITY: City of Denton, Texas Attn: City Manager 215 East McKinney Street Denton, Texas 76201 and to 6 City of Denton, Texas Attn: General Manager, DME 1659 Spencer Road Denton, Texas 76205 All notices shall be deemed effective upon receipt by the party to whom such notice is given or within three (3) days after the date of mailing. ARTICLE XVII ENTIRE AGREEMENT 'T`his Agreement consisting of nine (9) pages, and three (3) additional pages consisting of Task Order No. 07-D, 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 XVIII 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 party 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 XIX COMPLIANCE WITH LAWS COVINGTON shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XX DISCRIMINATION PROHIBITED In performing the services required hereunder, COVINGTON shall not discriminate against any person on the basis of race, color; religion, sex; national origin or ancestry, age, or physical handicap. ARTICLE XXI PERSONNEL A. COVINGTON represents that he has secured, or will secure at his own expense any additional personnel required to perform all the services required under this Agreement. Such personnel shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY. COVINGTON shall inform the CITY 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 COVINGTON or under his 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 XXII ASSIGNABILITY COVINGTON 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 CITY. ARTICLE XXIII MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, 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, duly executed; and, the parties further agree that the provisions of this section will not be waived unless as herein set forth. ARTICLE XXIV MISCELLANEOUS A. COVINGTON agrees that CITY 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 COVINGTON involving transactions relating to this Agreement. COVINGTON agrees that the CITY shall have access during normal working hours to all necessary COVINGTON facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. The CITY shall give COVINGTON reasonable advance notice of any intended audits. B. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County; Texas. This Agreement shall be governed by, and construed in accordance with the laws of the State of Texas. C. COVINGTON shall commence, carry on; and complete the work required by this engagement with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are appropriate to ensure that the work involved is properly coordinated with B related work being carried on by the CITY. D. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available information pertinent to the work required by this engagement, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for COVINGTON to enter in or upon, public and private property as required for COVINGTON to perform services under this Agreement. , E. 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. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed in four (4) original counterparts, by its duly authorized City Manager; and R.J. Covi gton Consulting, LLC has executed this Agreement by its duly authorized officer on this the ~ day of __C~1-~, ?007. "CITY" CITY OF DENTON, TEXAS A Municipal Corporation By: George .Campbell, City Manager ATTEST: JENN~IFpE~R~ WA'IL,TERS,ICIT(Y SECRETARY APPR'(7VED A9~T0 LEGAL FORM: EDWIN M. SNY~ER, CITY ATTORNEY By: ~~-'C "COVINGTON" R. J. COVINGTON CONSULTING, LLC A Texas Limited Liability Corporation By: ':i%!~L! l ~~~ W. C. Starnes, Vice-President EXHIBTT <`A" PROFESSIONAL SERVICES AGREEMENT BETR'EEN THE CITY OF DENTON, TEXAS AND R.J. COVINGTON CONSULTING, LLC TASK ORDER NO. 07-D Nodal Market Transition The work provided for in this Task Order is directed at continuing existing monitoring activities at the Electric Reliability Council of Texas ("ERGOT"), related_ to transition to a nodal market design in the Texas electric market. R. J. Covington Consulting ("RJC") will keep Denton Municipal Electric staff ("Staff') informed of the status of the transition design process and will alert DME staff of issues that may affect the ability of DME to serve its customers in a cost effective and competitive manner. RJC will participate in ERGOT committees and working groups, as directed by DME staff, to advocate positions that protect DME's ability to cost effectively operate in the existing wholesale electric market and the future nodal market. While the nodal market is being developed and implemented, there may be overlapping issues that impact the current market structure. RJC will focus on all issues that may disadvantage DME either through changes to the current market protocols or implementation of Public Utilities Commission of Texas ("PUG") approved nodal protocols. RJC will watch for changes or limitations in the implementation in either existing or new protocols that may disadvantage DME. In addition to working on ERGOT activities, RJC will assist DME staff in beginning to prepare DME for the new nodal market This will include review of the future needs of DME in order to successfully operate in the new market structure being implemented in ERGOT. The needs assessment includes consideration of how to minimize locational marginal prices, risk management techniques to minimize exposure to congestion costs, how to maximize the value of Congestion Revenue Rights ("CRR"), and other market activities needed to be successful in the new nodal market environment. The nodal market is targeted to begin January 2009. Because of the uncertainty regarding utility requirements to meet the requirements of the nodal market when implemented, additional funding may be required to complete this work. RJC will focus on the issues that are important to DME in order to work effectively and efficiently to help control budget. RJC will keep the General Manager of Denton Municipal Electric irifonned of the status of the budget; and work may be stopped at any time by notification by the General Manager of Denton Municipal Electric to RJC to cease work. Task Order 07-D Nodal Mazket Transition Scope of Services Task A ERGOT Activities Task A-1 Attend ERGOT Meetings ]. RJC will stay informed on activities at the ERGOT Independent System Operator ("ISO") and will attend meetings, as directed by DME staff related to existing market operations and implementation of the nodal market design. 2. RJC will participate in meetings to represent the interests of DME. The meetings that RJC will attend include the Protocol Revision Subcommittee (PRS), the Wholesale Market Subcommittee (WMS), the Texas Nodal Transition Plan Task Force (TPTF), the Technical Advisory Committee (TAG), and the ERGOT Board meetings. Other committees may need to be monitored as the nodal implementation process progresses. 3. RJC will work with DME staff to develop positions that should be advocated and strategies for working with other ERGOT stakeholders. Task A-2 Analyze Proposed Policies and Protocols 1. RJC will continue to review the new market design protocols as they evolve during the transition process and identify concerns related to DME's ability to effectively function in that market. 2. RJC will meet with ERGOT staff and other stakeholders, as requested by DME staff, to discuss nodal market transition issues and negotiate to mitigate negative impacts on DFW loads. Task B Working With Other Affected Parties Task B-1 Coordination With Other Market Participates I. RJC will continue to work with other affected municipalities, organizations, cooperatives, and associations, where appropriate, to help mitigate the impacts of the nodal market on loads in certain areas of the state. 2. RJC will participate in meetings with other market participants, as requested by DME staff, to discuss strategy and positions. 3. RJC will continue to develop issues, papers and statistics to assist in educating legislators, media and other market participants on nodal market issues. Task B-2 Work R'ith Attorneys 1. RJC will continue to work with the DME legal counsel to educate them on ERGOT related issues and to keep them up-to-date on changes that affect DME. 2. RJC will work with DME staff and legal counsel to assist them in preparing any challenges to the proposed nodal market design or the ERGOT proposed implementation plan to be filed with either ERGOT and/or the PUCT. 2of3 Task Order 07-D Nodal Market Transition Budget This Task Order calls for a budgeted amount, not-to-exceed $80,000 for professional services and expenses.. Because of the uncertainty regarding the level of activity required of RJC, this budget is an estimate. Additional funds may be required to complete this work. This initial budget will not be exceeded without the prior written approval of the delegated authotity of the City. RJC will bill this Task Order monthly together with supporting documentation of activities performed. RJC will send the monthly invoices to Sharon Mays, General Manager of DME. The work being performed under this Task Order will be under the supervision of the General Manager of DME, and may be modified at any time upon appropriate notice by the City to RJC. EXECUTED this the ~ day of _ i ~~~, 2007. AUTHORIZED BY: ACCEPTED BY: "CITY" "RJC" CITY OF DENTON, TEXAS R.J. COVINGTON COI~iSULTING, LLC A Texas Municipal Corporation A Texas Lim~itjed~Liability Corporation By: Lam/" ~~ - BY: _'~'~e%ecG/ ~~~ George C. Campbell W. C. Starnes, Vice-President City Manager Dated: Q °/ / '7 Dated: ~~~7 ATTEST: APPROVED AS TO LEGAL FORM: JENNIFER WALTERS; CITY SECRETARY EDWIN M. SNYDER, CITY ATTORNEY BY. By: ~ Dated: ~~~~--U~ Dated: `7 (~ ~ 3of3 STATE OF TEXAS ~ COUNTY OF DENTON ~ FIItST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES PERTAINING TO DENTON MUMCIPAL ELECTRIC TffiS FIRST AN NDNIENT TO AGREEMENT (the "Agreement") is made and entered into on the'' day o / (/~ , 20(~ but effective from and after % O , by and between the City of De on, Texas, a Municipal Corporation, with its princi al office at 215 East McKinney Street, Denton, Texas 76201 ("CITY"); and R. J. COVINGTON CONSULTING, LLC, a Texas Limited Liability Corporation, with its principal office at 11044 Research Boulevard, Suite A- 325, Austin, Texas 78759, hereafter "COVINGTON'; acting herein by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants, promises and agreements herein contained, the CITY and COVINGTON do hereby AGREE as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The CITY hereby contracts with COVIlVGTON, as an independent contractor, and COVINGTON hereby agrees to continue to perform the services herein in connection with the Scope of Services as stated in the Articles to follow as well as the Task Order 07-D and 07-F, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. ARTICLE Il SCOPE OF SERVICES A. COVINGTON shall provide to the CITY professional consulting services pertaining to assisting Denton Municipal Electric ("DME") in continuing existing monitoring activities at the Electric Reliability Council of Texas ("ERGOT"), related to transition to a nodal market design in the Texas electric market. COVINGTON will keep DME staff informed of the status of the transition design process and will alert DME staff of any issues that may affect the ability of DME to serve its customers in acost-effective and competitive manner. RJC will also assist DME staff and legal counsel re interventions made in these proceedings. RJC will also review the future needs of DME in order to successfully operate in the new market structure being implemented by ERGOT. The needs assessment includes consideration of how to minimize locational marginal prices, risk management techniques to minimize exposure to congestion costs, how to maximize the value of Congestion Revenue Rights ("CRR"), as well as other market activities needed to be successful in the new nodal market environment. COVINGTON agrees to perform those services and tasks more particularly and specifically described in Task Order No. 07-D and also in Task Order No. 07-F, which Task Order No. 07-F is attached hereto and incorporated herewith by reference. 1 B. To consult with the City Manager, Assistant City Manager/LJtilities, the General Manager of DME, the Utility Attorney, and any other designated administrative personnel regarding any and all aspects of the services to be performed pursuant to this Agreement. ARTICLE III PERIOD OF SERVICE This Agreement shall become effective retroactively on the ~ay o , 200~'and upon the issuance of a notice to proceed by Denton Municipal Electric (` ME"). he termination date of this Agreement shall be upon the earliest to occur of the following events: completion of the work described herein and in the attached Task Order No. 07-D and Task Order No. 07-F; or upon the depletion and exhaustion of the total $100,000 not-to-exceed amount provided for by the two above referenced Task Orders; or upon fifteen (l5) day's written notice to terminate, issued by the General Manager of DME. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. COVINGTON shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its General Manager of DME. ARTICLE IV COMPENSATION A. COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense, overnight courier, photocopy expense, transportation, travel, communications, subsistence and lodging away from home and similar incidental expenses reasonably incurred in connection with that assignment. B. BILLING AND PAYMENT: 1. For and in consideration of the professional services to be performed by COVINGTON herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct non-labor expense, not to exceed an additional $20,000 for this Task Order No. 07-F, plus the initial not to exceed amount of $80,000 heretofore approved by Council in connection with Task Order No. 07-D, totaling a not to exceed amount of $100,000 those services described in Task Orders No. 07-D and 07-F. 2. The fee for the services described in this Agreement to be performed by COVINGTON are to be billed at the rates previously agreed to. Billing shall be reported in minimum one- quarter (1 /4) hour increments. 3. Payments to COVINGTON will be made by the CITY on the basis of detailed monthly statements rendered to the CITY through its General Manager of DME. The fee bills as submitted, shall be allowed and approved by the General Manager of DME. However, under no circumstances shall any monthly statement for services exceed the value of the work performed 2 at the time a statement is rendered. 4. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory as reasonably determined by the Assistant City Manager for Utilities or the General Manager of DME; or which is not submitted in compliance with the terms of this Agreement. The City shall not be required to make any payments to COVINGTON when COVINGTON is in default under this Agreement. 5. It is specifically understood and agreed that COVINGTON shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense or reimbursement above the maximum not-to-exceed fee as stated, without first having obtained written authorization from the CITY. C. PAYMENT If the CITY fails to make payments due COVINGTON for services and expenses within forty (40) days after receipt of COVINGTON'S undisputed statement thereof, the amounts due COVINGTON will be increased by the rate of one percent (1%) per month from the said forty (40th) day, and in addition, COVINGTON may, after giving ten (10) days' written notice to the CITY, suspend services under this Agreement until COVINGTON has been paid in full all amounts due for services, expenses and charges provided. However, nothing herein shall require the CITY to pay the late charge of one percent (1 %) set forth herein if the CITY reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such defect. ARTICLE V OBSERVATION AND REVIEW OF THE WORK COVINGTON will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in his work or the work of any subconsultants performed hereunder. ARTICLE VI OWNERSHIP OF DOCUMENTS All documents, analyses and other data prepared by COVINGTON under this Agreement ("Work Products") are instruments of service and are and shall remain the property of CITY. COVINGTON shall have the right to make and retain copies and use all Work Products; provided, however, the use shall be limited to the intended use for which the services and Work Products are provided under this Agreement. COVINGTON may use and may copyright certain non-sensitive Work Products as property of COVINGTON; provided that prior written approval is obtained from CITY, whose approval shall not be unreasonably withheld, and providing that copywriting will not restrict CITY' S right to retain or make copies of the Work Products for its information, reference and use on the Project or services under the Agreement. 3 The Work Products shall not be changed or used for purposes other than those set forth in this Agreement without the prior written approval of COVINGTON. if CITY releases the Work Products to a third party without COVINGTON'S prior written consent, or changes or uses the Work Products other than as intended hereunder, CITY does so at its sole risk and discretion and COVINGTON shall not be liable for any claims or damages resulting from or connected with the release or any third party's use of the Work Products. ARTICLE VII INDEPENDENT CONTRACTOR COVINGTON shall provide services to the CITY as an independent contractor, not as an employee of the CITY. COVINGTON shall not have or claim any right arising from employee status. ARTICLE VIII INDEMNITY AGREEMENT COVINGTON shall indemnify and save and hold harmless the CITY 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's fees incurred by the CITY, and including without limitation, damages for bodily and personal injury, death and property damage, and damage for professional malpractice resulting from the negligent acts or omissions of COVINGTON or any subconsultants, in performance of this Agreement. COVINGTON'S liability under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as set forth in Article IX. 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 party's 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 IX INSURANCE During the performance of the Services under this Agreement, COVINGTON 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. 4 C. Professional Liability Insurance with policy limits of not less than $1;000,000 annual aggregate. D. COVINGTON shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the CITY as an additional 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 thirty (30) days prior written notice to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of the change or cancellation, deliver 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 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 XI LIlVIITATION OF LIABILITY To the extent pernutted by law, the total liability of COVINGTON to CITY for any and all claims arising out of this Agreement, whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemnity claims based on third-party claims, shall not exceed one million dollars ($1,000,000). ARTICLE XII CONSEQUENTIAL DAMAGES In no event and under no circumstances shall COVINGTON be liable to CITY for any interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any consequential, indirect or special damages. ARTICLE XIII PROFESSIONAL STANDARDS COVINGTON will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same degree of similar services. No other warranty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and all implied warranties are disclaimed. ARTICLE XIV TERMINATION OF AGREEMENT 5 A. Notwithstanding any other provision of this Agreement, either party may terminate this 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 failing to fulfill its obligations under this Agreement. No such termination will be effected 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 nonperformance, and not less than ten (10) business days in which to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If this Agreement is terminated prior to completion of the services to be provided hereunder, COVINGTON shall immediately cease all services and shall render a final bill for services to the CITY within thirty (30) days after the date of termination. The CITY shall pay COVIlVGTON for all services properly rendered and satisfactorily performed and for reimbursable expenses to ternnation incurred prior to the date of termination in accordance with Article IV, Compensation. Should the CITY subsequently contract with a new consultant for the continuation of services on the Project, COVINGTON shall cooperate in providing information. COVINGTON shall turn over all documents prepared or furnished by COVINGTON pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of COVINGTON, or any subconsultants of COVINGTON, for the accuracy and competency of their designs or other work product. ARTICLE XVI 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 at the address shown below, certified mail, return receipt requested unless otherwise specified herein. Mailed notices shall be sent to the parties at the following addresses: To COVINGTON: R.J. Covington Consulting, LLC Attn: Richard J. Covington, President 11044 Research Blvd., Suite A-325 Austin, Texas 78759 To CITY: City of Denton, Texas Attn: City Manager 215 East McKinney Street Denton, Texas 76201 and to City of Denton, Texas Attn: General Manager, DME 6 1659 Spencer Road Denton, Texas 76205 All notices shall be deemed effective upon receipt by the party to whom such notice is given or within three (3) days after the date of mailing. ARTICLE X1~[I ENTIRE AGREEMENT This Agreement consisting of ten (10) pages, and three (3) additional pages consisting of the additional Task Order No. 07-F, 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 XVIIl 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 party 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 XIX COMPLIANCE WITH LAW S COVINGTON shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XX DISCRIlVIINATION PROHIBITED In performing the services required hereunder, COVINGTON shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE X?Q PERSONNEL A. COVINGTON represents that he has secured, or will secure at his own expense any additional personnel required to perforrn all the services required under this Agreement. Such personnel shall be subconsultants of COVIl~IGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY. COVINGTON shall inform the CITY 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 COVIl~tGTON or under his supervision. additional personnel required to perform all the services required under this Agreement. Such personnel shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY. COVINGTON shall inform the CITY 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 COVINGTON or under his 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 X~~I ASSIGNABILITY COVINGTON 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 CITY. ARTICLE ~~II MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, 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, duly executed; and, the parties further agree that the provisions of this section will not be waived unless as herein set forth. ARTICLE XXIV MISCELLANEOUS A. The CITY shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. COVINGTON shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five yeazs thereafter, except if an audit is in progress or audit findings aze 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 ten (10) business days of written request. Further, the COVINGTON shall also require any and all subcontractors or subconsultants, material suppliers, and other payees to retain all books, records,. documents and other evidence pertaining to this agreement, and to allow the CITY similar access to those documents. All books and records will be made available within a fifty (50) mile radius of the City of Denton, Texas. The cost of the audit will be borne by the CITY 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 COVINGTON which must be payable within five (5) business days of receipt of an invoice from the CITY. laws of the State of Texas. C. COVINGTON shall commence, carry on, and complete the work required by this engagement with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carved on by the CITY. D. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available information pertinent to the work required by this engagement, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for COVINGTON to enter in or upon, public and private property as required for COVIl~IGTON to perform services under this Agreement. E. 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. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed in four (4) original counterparts, by its duly authorized City Manager; and R. , Covington Consulting, LLC has executed this Agreement by its duly authorized officer on this the ~ day of ~00~ "CITY" CITY OF DENTON, TEXAS A Municipal Corporation By: / ~ -.~~ George C. Campbell, City anager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: ~= v APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: 9 "CO VINGTON" R. J. COVINGTON CONSULTING, LLC A Texas Limited Liability Corporation W. C. Starnes, Vice-President io EXHIBIT "A" FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND RJ. COVINGTON CONSULTING, L.L.C. TASK ORDER N0.07-F ERGOT MONITORING The work provided for in this Task Order is directed at continuing existing monitoring activities at the Electric Reliability Council of Texas ("ERGOT"), related to transition to a nodal market design in the Texas electric market, impacts of development of Competitive Renewable Energy Zones and implementing wind power initiatives, transmission development and other issues that will impact costs assigned to DME. R. J. Covington Consulting (RJC) will keep Denton Municipal Electric staff ("Staff') informed of the status of these and other cost issues and will alert DME staff of issues that may affect the ability of DME to serve its customers in a cost effective and competitive manner. RJC will continue to monitor and participate as appropriate in key ERGOT committees and working groups, as directed by DME staff, to advocate positions that protect DME's ability to cost effectively operate in the existing wholesale electric market and the future nodal market. While the nodal market is being developed and implemented, there may be overlapping issues that impact the current market structure. RJC will focus on all issues that may disadvantage DME either through changes to the current market protocols or implementation of Public Utilities Commission of Texas ("PUG") approved nodal protocols. RJC will watch for changes or limitations in the implementation in either existing or new protocols that may disadvantage DME. In addition to working on ERGOT activities, RJC will assist DME staff in beginning to prepare DME for the new nodal market. This will include review of the future needs of DME in order to successfully operate in the new market structure being implemented in ERGOT. The needs assessment includes consideration of how to minimize locational marginal prices, risk management techniques to minimize exposure to congestion costs, how to maximize the value of Congestion Revenue Rights ("CRR"), and other market activities needed to be successful in the new nodal market environment. The nodal market is targeted to begin January 2009. Because of the uncertainty regarding utility requirements to meet the requirements of the nodal market when implemented, additional funding may be required to complete this work. RJC will focus on the issues that are important to DME in order to work effectively and efficiently to help control budget. RJC will keep the General Manager of DME and the Denton Assistant City Manager of Utilities informed of the status of the budget, and work may be stopped at any time by notification by the General Manager of DME or the Denton Assistant City Manager of Utilities to RJC to cease work. Scope of Services ~~ Task A ERCOT Activities Task A-1 Attend ERCOT Meetings 1. RJC will stay informed on activities at the ERCOT Independent System Operator ("ISO") and will attend meetings, as directed by DME staff related to existing market operations and implementation of the nodal market design. 2. RJC will monitor or participate in meetings to represent the interests of DME. The meetings that RJC will monitor or possibly attend may include the Protocol Revision Subcommittee (PRS), the Wholesale Market Subcommittee (WMS), the Texas Nodal Transition Plan Task Force (TPTF), the Technical Advisory Committee (TAC), and the ERCOT Board meetings, all on an as needed basis. Other committees may need to be monitored from time to time as issues are developed and policy created. 3. RJC will work with DME staff to develop positions that should be advocated and strategies for working with other ERCOT stakeholders. Task A-2 Analyze Proposed Policies and Protocols 1. RJC will continue to review relevant issues and the new market design protocols as they evolve during the transition process and identify concerns related to DME's ability to effectively function in the current market as well as the future nodal market. 2. RJC will meet with ERCOT staff and other stakeholders, as requested by DME staff, to discuss issues that will result in increased costs assigned to DME and negotiate to mitigate negative impacts on DFW loads. Task B Working With Other AfTected Parties Task B-1 Coordination with Other Market Participates 1. RJC will continue to work with other affected municipalities, organizations, cooperatives, and associations, where appropriate, to help mitigate the impacts of increased cost assignments on loads in ERCOT and the state. 2. RJC will participate in meetings with other market participants, as requested by DME staff, to discuss strategy and positions. 3. RJC will continue to develop issues, papers and statistics to assist in educating legislators, media and other market participants on nodal market issues. Task B-2 Work with DME Attorneys L RJC will continue to work with the DME legal counsel to educate them on ERCOT related issues and to keep them up-to-date on changes that affect DME. 2. RJC will work with DME staff and legal counsel to assist them in preparing any challenges to the proposed nodal market design or the ERCOT proposed implementation plan to be filed with either ERCOT and/or the PUCT. Budget 12 This Task Order calls for a budgeted amount, not-to-exceed $20,000 for professional services and expenses. Because of the uncertainty regarding the level of activity required of RJC, this budget is an estimate. Additional funds may be required to complete this work. This initial budget will not be exceeded without the prior written approval of the delegated authority of the City. RJC will bill this Task Order monthly together with supporting documentation of activities performed. RJC will send the monthly invoices to the General Manager of Denton Municipal Electric. The work being performed under this Task Order will be under the supervision of the General Manager of DME, and may be modified at any time upon appropriate notice by the City to RJC. EXECUTED this the ~ day of , 200 t~ AUTHORIZED BY: ACCEPTED BY: "CITY" "RJC" CITY OF DENTON, TEXAS R.J. COVINGTON CONSULTING, LLC A Texas Municipal Corporation A Texas Limited Liability Corporation By: / ~~ BY~ G~~~~~' ~~`~~~ George C. Campbell W. C. Starnes; Vice-President City Manager Dated: / 7 O Y Dated: 123 ~7 ATTEST: JENI\'IFER WALTERS, CITY SECRETARY By: APPR D A O LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: 13