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HomeMy WebLinkAboutC2006-497 - 11/14/2006 - Approved CONTRACT FOR PROFESSIONAL SERVICES STATE OF TEXAS ~ ~KNOW ALL MEN BY THESE PRESENTS: CITY 01; CORPIJS CHRISTI ~ THIS CONTRACT FOR PROFESSIONAL SERVICES (this "Contract") is made on November 3,2006, by and between the CITY OF CORPUS CHRISTI, TEXAS (the "City"), and TRlSTEM, LTD., a Texas limited liability corporation, with its principal office located in Hewitt, Texas (the "Contractor"). rbe inittal addresses of the parties are as follows: CITY CONTRACTOR The City of Corpus Christl Financial Services Division 1201 Leopard Street 4th, Floor Corpus Christi, Texas 78401-2825 TriStem, Ltd. 328 Ivy Lane Hewitt, Texas 76643 W !INE~~~TH: WHEREAS, the City desIres to secure the performance of professional services of the hIghest quality by trained, skilled personnel; and WHEREAS, the Contractor desires to provide such services in exchange for the fees hereinafter specified~ NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein contained. and other valuable consideration, the parties hereto agree as follows: ARTICLE I. DEFINITIONS Section 1.01. Meaainl!s of Words and Terms. As used in this Contract, the following words and terms shall have the respective indicated meanings: "Account" means electric utility account. "City" means the City of Corpus Christi, Texas. "Contractor" means the entity designated as such in the introduction of this Contract. 2006-447 11/14/U6 !\'12006<P5 IriStem "Force Majeure," as used herein, shall include, but not be limited to, acts of God, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fire,>, storms, noods, washouts, tornadoes, hurricanes, arrests, and restraints of government and people, explosions, breakage or damage to machinery or equipment and any other inabilities of either party, whether similar to those enumerated or otherwise, and not within the reasonable control of the pan\' claiming such inability 'Payment" means the fee to be paid by the City to the Contractor for the Contractor's performance of its duties under this Contract, computed in accordance with Section 5.02 hereof. "Project Manager" means the City Director of Financial Services, or her designee, who has the authority and responsi hility of administering all aspects of this Contract on behalf of the City. Section 1.02. Miscellaneous Definitions. Words of the masculine gender shall be deemed and construed to be correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, singular terms used herein shall include the plural number should the context so reqUIre Section 1.03. Titles and Headine:s. The titles and headings ofthe articles and sections of thiS Contract have been inserted for convenience of reference only and are not to be considered a part hereof, and shall not in any way modify or restrict any of the terms or provisions hereof and shall never be considered or gi ven any effect in construing this Contract or any provision hereof or in ascertaining intent. if any 'Iuestion of intent shall arise. ARTICLE II. SCOPE OF SERVICES Section 2.01. Basic Services. The Contractor shall conduct an audit and study of prior electric utility billing (including street light bills) billed to the City to determine whether amounts paid by City were correct. fhe Contractor shall also inform City if there is a possibility that City can qualify for a more advantageous rale for future billing. The City Director of Financial Services shall have sole discretion in determining which bills are referred to Contractor for review. (A) Investi2ation. Upon receiving the Account information described in Section 30 [(A), the Contractor shall, within six months of receiving the Account infonnation, subject to receipt of necessary information from the electric utility service provider: 1 i Investigate each Account and determine if there was overpayment by the City with each said Account (2) Provide to the City Project Manager a Research Report (the "Research Report") containing indIvidual Accounts or a complete list of all Accounts researched by the Contractor for which the Contractor has identified potential overpayments by the City. -2- 3 I Contractor will seek t,) obtain refunds for any past overbillings which Contractor determines ha, e occurred. Any such refunds will be issued directly from the electric service provider to the City. Section 2.02. Coordination of Services. The Contractor shall coordinate all of its activities herein described with the City's representative, the Project Manager, or any of her designated representatives. Section 2.03. Citv's Existine: Proe:rams. The Contractor hereby acknowledges that the City may have begun research into certain utility bills. The City shall identify to Contractor any such utIlity bills within the first two (2) weeks of this Contract. The Contractor acknowledges that the City has engaged Contractor to supplement and augment any existing reviews the City has in place and the CIty acknowledges that it desires 10 utilize the Contractor's services in such a manner so as to maximize the City's revenues. ARTICLE III. CITY DUTIES. DATA RECORDS. WORK PRODUCTS. ETC. Section 3.01. Certain Duties of.he Citv. (A) Citv to Provide Access to Accounts. In addition to its other duties under this Contract, the City shall, to the extent permitted by law, provide access to all the data and records in its possession for each Account, and shall provide copies of any documents in its possession or control or available to it which are requested by the Contractor and are reasonably necessary for the Contractor to perfOlm its duties under this Contract. (B) Post-Award Contract Meetine:. Upon execution of this Contract by all parties, the CI1:\ wtll coordinate a post-award contract meeting with the Contractor and all designated management personnel representing the City under this Contract in order to fully explain all aspects of this Contract. (C) Pro iect Mauaf!ert s Assistance. The Proj ect Manager shall assist the Contractor in its dealings with the City, including any of its departments or divisions. ARTICLE IV. INDEMNIFICATION AND INSURANCE Section 4.01. Indemnification. The Contractor agrees at all times to defend, indemnify and hold the City harmless from and against any and all liabilities, losses or costs arising from claims for damages, or suits for loss or damage, including without limitation, reasonable attorney fees, which arise as a result of the performance of or failure to properly perform its duties under this Contract, whether such claims are asserted before or after the termination of this Contract. Section 4.02. Insurance. During the term of this Contract, the Contractor shall carry and mamtain the following insurance coverage with a company or companies satisfactory to the City, under policies of insurance that meet the requirements of the State of Texas. The City shall be named as an additIOnal Il1sured j()r all liability policies, with a waiver of subrogation on all applicable policies. Each of said policies shall provide that the City shall be given at least thirty (30) days pnor written notice of change or cancellation. Such insurance coverage shall have the mmimum limits of liabilit\ in not less than the following amounts: I A) Commercial General Liability, including commercial form, premises - operators, products/completed operations hazard, contractual insurance, independent contractors and personal injury $1,000,000 Combined Single Limit I B I Automobile Liability, including owned, non-owned orrented: $1,000,000 Combined Single Lim It Ie) Professional Liability, including errors and omissions: $1,000,000 Combined Single Limit ! D) Workers Compensation with Employees Liability, which complies with the Texas Workers' Compensation Act: $100,000 ARTICLE v. PAYMENT Section 5.01. Limitation on Sources ofPavment. Any and all fees due to the Contractor for services rendered under this Contract shall be payable solely from overpayments that are received and collected by the City. The Contractor acknowledges and agrees that the City's liability for any and all payments hereunder shall be limited by this provision. If there are no refunds to City, there is no payment owed to Contractor. Section 5.02. Pavment for Services. (A) Payment to Contractor. City agrees to pay Contractor forty-nine percent (49%) of any refunds City receives as a direct result of Contractor's services or audit process, or any part thereof. If South Texas Aggregation Project members agree to use Contractor's such that the combined population of the ST AP member .:ities exceeds 500,000, City and Contractor have negotiated a reduced fee such that City agrees to pay Contractor thirty-nine (39%) of any refunds received as a rc<;ult of( 'ontractor's services. -4- (B) When Pavments Due. Payments are due to the Contractor monthly within thirty (30) days of receipt of refunds hy the City, \vhether refund is in the form of cash, credit to accounts, in- kmd contributions or any other form of payment or reimbursement. If future considerations are glVen in heu of refunds, Contractor shall receive the same percentage of the value of the future cunsiderations, as Contractor would have received from refunds obtained. ARTICLE VI. TERM AND TERMINATION Section 6.01. Term. This Contract shall be effective as of date of execution bv the City Manager or his designee and shall continue for a primary term of twelve (12) months, ending on November 30,2007 At the end of the primary term of this Contract, it may be renewed for a period ortwelve (12) months at the discretion nfthe City Manager. The duties and obligations of the City to pay the Contractor any Payments earned prior to the termination of this Contract continue in full f()f(..:e and effect regardless of the termination of this Contract by either party. Section 6.02. Termination. Either party hereto may terminate this Contract with or without cause at any time by giving thirty (30) days prior written notice to the other party of its intent to terminate this Contract. ARTICLE VII. MISCELLANEOUS PROVISIONS Section 7.01. IndeDendent Contractor. The relationship between the Contractor and the City shall be that of an independent contractor. Section 7.02. Busiaess Structure and Asswnments. The Contractor may not delegate or aSSIgn any portion of this Contract without the prior written consent of the City. The Contractor may assign any portion of its earned Payments hereunder; provided, however, prior to any assignment thereof the ('ontractnr shall furnish reasonable proof of the assignment thereof by providing to the City a written notice containing the following information: (i) the name, address imd telephone number of the Contractor with a clear reference to this Contract; (ii) the name, address and telephone number of the assignee; and (iii) the identity of the earned Payments to be assigned (such identity to be estabb shed by mdicating the invoice number, task description and the amount of ~aid Payment associated therewith being assigned). If reasonable proof, as described above, is not provided to the City, the I ~ity ma~ continue to pay the Contractor. Section 7.03. Subeontractine:. The Contractor may subcontract any part of its duties and obligations to be performed hereunder only with the prior approval of the City to do so. All subcontractors and their employees shall be treated as if they were employees of the Contractor, except wlth regard to fees to he paId to said subcontractors. - 1- Section 7.04. Parties in Interest. This Contract shall not bestow any rights upon any third parties. but rather. shall inure to the benefit of and bind the City and the Contractor only. Section 7.05. Non-waiver. Failure of either party hereto to insist on the strict performance ot any of the agreements contained herein or to exercise any rights or remedies accruing hereunder upon default or failure of performance shall not be considered a waiver of the right to insist on or to enf()rce bv any appropriate remedy and/or strict compliance with any other obligation hereunder or to exercise any right or remedy occurring as a result of any future default or failure of performance. Section 7.06. Applicable Laws. This Contract shall be construed in accordance with, and shall be subject to the laws of the State of Texas, any ordinances, resolutions, or other similar t:nactments of the CIty of (~orpus ('hristi, the laws of the United States of America and all rules and regulations of any regulatory body or officer havingjurisdiction over matters which are the subject of this Contract. Section 7.07. Notices. All notices required or permitted under this Contract shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Services post office or receptacle with proper postage affixed (certified mail, return receipt requested) addressed to the respective other party at the address prescribed in the mtroduction hereof or at such other address as the receiving party may have theretofore indicated by written notice to the sending party. Section 7.08. Force Majeure. In the event either party is rendered unable, wholly or in part, by Force Majeure to perform under this Contract, it is agreed that, upon such party's giving notice and full particulars of such Force Majeure in writing to the other party as soon as possible after the occurrence of the cause relled upon, the obligations of the party giving such notice, to the extent it is a fleeted hy F orce M~jeure and to HIe extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of any inability so caused as to the extent provided, but for no longer period. Such cause shall as far as possible be remedied \vith all reasonable dispat...-h. Section 7.09. Approvals: Amendments. Approval by the City, Project Manager or by any other representative of the City, 0 f any part of the services rendered by the Contractor under this Contract other than in accordance with the terms and provisions of this Contract shall not be construed to be a waiver of the Contractor's compliance with said terms and provisions or to establish a standard of performance other than required by this Contract or by law. The Project Manager is not authorized to vary the terms and provisions of this Contract. The City Manager is authorized to execute written amendments to this Agreement on behalf of the City. Section 7.11. Remedies Cumulative. The rights and remedies contained in this Contract shall not be exclusive, but shall be cumulative of all other rights and remedies, now or hereafter eXIsting, whether by statue, at law, or in equity; provided, however, that none of the parties to this Contract shall terminate it except III accordance with the provisions hereof. -6. Section 7.12. Renresentations. The Contractor represents that it and its employees, agents and subcontractors are fully competent and qualified to perform all the service required to be performed under this Contract. The Contractor represents that it has experience in performing all of the~ervlces to be performed hereunder and these services shall be of the highest professional quality. Section 7.13. Personnel of Contractor. fhe Contractor shall replace any personnel aSSigned to provide servicl:s under this Contract who shall have been deemed to be unsuitable by the elt'. ~~tion 7.14. J\1ultinle Counternarts. This Contract may be executed in multiple counterparts, cach of WhHh shall be regarded for all purposes as an original; and such counterpart shall constitute but one and the same instrument. -7- CONTRACTOR: TRISTEM, LTD.. B ,-,; -." . I. , .- y. . c'<' ,,,. ~-"'''' r .' ___.___ N.aml ~_-; <C . ~ ,Le~..~,:?/", ' TItle: ('",,::.-~f>~1 /~:-:t7'~ Date: ___.2::.__:("0__ CITY OF CORPUS CHRISTI Attest l~ -1------ ---_ Armando Chapa [ City Secretary Approved as to Legal Fonn: -' \j ".--t Je", By:___~__ Ijsa Aguilar Assistant City A nomey For City Attorney M ~D~.:..3D.... AU I nUl -. L-. - " l>>U~C'l ...Ll+.L~JP.~...._- SfCl~'h } t ; -8