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2002-231O INANCE NO.oY_,'D_ / AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING CONTRACT BETWEEN THE CITY OF DENTON, TEXAS AND KATUNIGAN COMPANY TO PROVIDE PROFESSIONAL SERVICES AS PROJECT MANAGER, WEB DEVELOPMENT, AND CONFIGURATION OF COMPUTER SYSTEMS FOR THE DENTON COMMUNITY NETWORK; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems that it is in the public interest to engage Katunigan Company., to provide professional services to be the project manager, to do web development, and computer systems configuration for Denton Community Network; 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; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the City Manager is hereby authorized to execute a Professional Services Agreement with Katunigan Company.; in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference. SECTION 2: That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of the company and the demonstrated ability of the company to perform the services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this th~2(~--rS~hd day of ~[4t 0, .~_ , 2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY S:\Our Documents\Ordinances\02\Katunigan Company.doc PROJECT MANAGEMENT AGREEMENT FOR COMMUNITY NETWORK IMPLEMENTATION STATE OF TEXAS COUNTY OF DENTON § THIS AGREEMENT is made and.~en~r..ed into as of the ~6/~7 day of ~. 20(t~by and between me t. ity of Denton, Texas, a Texas municipal cflJ~porati~, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "CITY" and THE KATUNIGAN COMPANY, 1828 Broadway Street, Denton, Texas, 76201-2561, hereinafter called "CONTRACTOR," acting herein, by and through their duly authorized representatives. WlTNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 EMPLOYMENT The CITY hereby contracts with CONTRACTOR, as an independent contractor, and that CONTRACTOR 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: Providing project management service for the community network plan as more particularly described in Exhibit "A" which is attached hereto and providing web development and equipment configuration services associated with the community network management which is described in Exhibit "B"and attached hereto. ARTICLE 2 SCOPE OF SERVICES The CONTRACTOR shall perform the following services in a professional manner: CONTRACTOR shall perform all those services necessary to coordinate all of the activities of the Community Network Project including but not limited to coordinating purchasing activities, communications, installation, configuration and scheduling of services under the guidance of the Project Director which is describe in Exhibit "A", "B", which is attached hereto and made a part hereof as if written word for word. S:/ourdocuments/contracts/02/librarycommunity network project management.doc 1 If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits. ARTICLE 3 PERIOD OF SERVICE This Agreement shall become effective upon ~.~, 2002 after proper execution by the parties, and shall remain in force for ti period of one year. This Agreement may be sooner terminated in accordance with the provisions hereof. ARTICLE 4 COMPENSATION A. COMPENSATION TERMS: In consideration for CONTRACTOR's provision of planning support and consultation services under this Agreement, CITY will pay to CONTRACTOR a fee not to exceed FIFTY FOUR THOUSAND SIX HUNDRED DOLLARS AND NO CENTS to be invoiced on a monthly basis. The CONTRACTOR shall also be paid for services to do web development in an amount not to exceed TWENTY SIX THOUSAND TWO HUNDRED SEVENTY DOLLARS AND NO CENTS to be invoiced on a monthly basis and for equipment configuration for an amount not to exceed FIVE THOUSAND DOLLARS AND NO CENTS to be invoiced on a monthly basis. ARTICLE 5 INDEPENDENT CONTRACTOR CONTRACTOR shall provide services to CITY as an independent contractor, not as an employee of the CITY. CONTRACTOR shall not have or claim any right arising from employee status. Nothing in this Agreement shall be interpreted or construed so as to make CONTRACTOR an employee, agent, or borrowed servant of the CITY. Nothing in this Agreement shall be interpreted or construed so as to make the employees of the CITY the servants, agents, or employees of CONTRACTOR. CITY and the employees of the CITY shall not be eligible for the employment benefits, including health and unemployment insurance, and worker's compensation coverage, which are provided to employees of CONTRACTOR. ARTICLE 6 INDEMNITY AGREEMENT CONTRACTOR shall indemnify and save and hold harmless the CITY and its officers, agents, and employees fi.om and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable S:/ourdocuments/contracts/02/librarycommuniiy network project management.doc 2 attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting fi.om the negligent acts or omissions of CONTRACTOR 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 7 INSURANCE During the performance of the services under this Agreement, CONTRACTOR 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: 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. 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 for not less than $100,000 for each accident. Worker's Compensation Insurance in accordance with statutory requirements and Employer's Liability Insurance with limits of not less than $100,000 for each accident. This requirement may be waived upon proof that no employee that would come within worker's compensation coverage will participate in the performance of this agreement. CONTRACTOR 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 that is legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to CITY and CONTRACTOR. In such event, the CONTRACTOR shall, prior to the effective date of the change or cancellation of coverage, deliver copies of any such substitute policies, furnishing at least the same policy bruits and coverage, to CITY. S:/ourdocuments&ontracts/02/libraB, community network project management,doc 3 ARTICLE 8 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 inehide the other party to the disagreement without the other's approval. ARTICLE 9 TERMINATION OF AGREEMENT Notwithstanding any other provision of this Agreement, either party may terminate by giving ten (10) days' advance written notice to the other party. If this clause is undertaken then CONTRACTOR shall cease all work upon receipt of notice and shall submit a final invoice for all work performed. CONTRACTOR shall be paid for work performed on a pro-rata basis and this shall be final compensation due under this contract. 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. This Agreement shall terminate automatically upon either party's loss of licensure or certification, or upon the effective date of any change in statute, ordinance, rule or regulation or action of governmental authority prohibiting this arrangement or the services contemplated hereunder. ARTICLE 10 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 CONTRACTOR: To CITY: THE KATUNIGAN COMPANY Attention Paul Schlieve 1828 Broadway Street City of Denton Eva Poole Denton Public Library S:/ourdocument~contracts/02/librarycommunity he,york project management.doc 4 Denton, Texas 76201-2561 502 Oakland Street Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 11 ENTIRE AGREEMENT This Agreement, consisting of 7 pages and a~ exhibit, 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 12 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenfomeable, 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 13 COMPLIANCE WITH LAWS CONTRACTOR shall comply with all federal, state, and local laws, roles, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE 14 DISCRIMINATION PROHIBITED In performing the services required hereunder, CONTRACTOR shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 15 PERSONNEL The CONTRACTOR represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. S:/ourdocuments/contracts/O2llibrarycommunity ne/work project management.doc 5 Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. CONTRACTOR shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. All services required hereunder will be performed by CONTRACTOR 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 16 ASSIGNABILITY This Agreement shall apply to, and be binding upon, the parties and their respective successors and permitted assigns. The parties 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 other party. Any assignment attempted without such consent shall be void. ARTICLE 17 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 18 MISCELLANEOUS A. Thc following exhibits are attached to and made a part of this Agreement: 1. Exhibit "A" 2. Exhibit "B" Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. Force Majeure. Neither party shall be in violation of this Agreement if either party is, or if either party reasonably determines that it is, prevented from performing its obligations for any reason beyond its control, including without limitation, flood, storm, strikes, acts of God or the public enemy. S:/ourdocumcnts/contracts/02/librarycommunity network project management,doc 6 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 HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONTRACTOR has exerted this A cement through its duly authorized undersigned officer on this the/-~A ¥ day of ~J 0~ , 2002. CITY OF DENTON, TEXAS MICI-I~A. ~ONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY TOR THE KATLrNIGAN COMPANY PAUL SCHLIEVE, Ph.D. WITNESS: S:/ourdocuments/contracts/02/librarycommunity network project management.doc 7