Loading...
HomeMy WebLinkAboutResolution - 5437 - Contract - David M Griffith & Associates Ltd - FFCA Services - 03_13_1997RESOLUTION NO. 5437 Item #24 March 13, 1997 MAA9J_k1j. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract to provide Franchise Fee Compliance Audit Services, attached herewith, by and between the City of Lubbock and David M. Griffith & Associates, Ltd., and any associated documents, which Agreement shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 13th day of March _ . , 1997. ,&Z/ WINDY srittok, MAYOR ATTEST: &AL' Kaytj Darnell, City Secretary APPROVED AS TO CONTENT: A Schelin, Internal Auditor APPROVED AS TO FORM: Odfiald G. Vandiver, First Assistant City Attorney D G V : gs /ccdocs/D G riffi. res February 14, 1997 RESOLUTION NO. 5437 Item #24 March 13, 1997 CONTRACT TO PROVIDE PROFESSIONAL FRANCHISE FEE COMPLIANCE AUDIT SERVICES RELATIVE TO ELECTRIC, GAS, TELEPHONE AND CABLE FRANCHISEES FOR THE CITY OF LUBBOCK, TEXAS THIS CONTRACT, entered into this 13th day of March, 1997, and effective immediately, by and between David M. Griffith & Associates, Ltd. (hereinafter referred to as "Consultant") and the City of Lubbock, a municipal corporation organized under the laws of the State of Texas (hereinafter referred to as "City"), WITNESSETH THAT: WHEREAS, the City receives certain franchise fee revenues from the operation of electric and gas distribution services, and local telecommunications and cable television operations within the City; and, WHEREAS, the Consultant is staffed with personnel knowledgeable and experienced in the requirements of conducting electric, gas, cable and local telephone franchise fee compliance audits; and, WHEREAS, the City desires to engage the Consultant to conduct such audits to ensure fair and reasonable payment of amounts due from said companies; and, NOW THEREFORE, the parties hereto mutually agree as follows: 1. Employment of Consultant The City agrees to engage the Consultant and the Consultant hereby agrees to perform the services as outlined herein. 2. Scope of Services The Consultant shall do, perform and carry out, in a good and professional manner, the services outlined in Attachment "A". 3. Time of Performance The services to be performed hereunder by the Consultant shall be undertaken in such sequence as to ensure expeditious completion and best carry out the purposes of the contract. The project will be started within thirty (30) days of notice to proceed and the report required, delivered not later than 180 days from the start of on -site field work, barring exigencies beyond the control of the Consultant. The contract term shall be for a period of one year. 4. Compensation The City agrees to pay the Consultant, as outlined in this section, a total price per audit not to exceed fifty percent (50%), of any amounts recovered, Page 1 of 6 refunded, or credited, as a result of the franchise fee compliance audits and/or audit findings. The maximum amount DMG will receive from the City shall be $250,000 per compliance audit. The City's obligation to pay DMG for recoveries as a result of audits pursuant to terms of this contract shall survive termination of this contract. Since the compensation is on a contingency basis, the City agrees to make payment to Consultant of the applicable percent within 30 days of receipt of amounts recovered, refunded, or credited. Monies recovered by the City as a result of the audits and/or audit findings will be paid to Consultant to the extent monies have been recovered by the City as a result of the audits and/or audit findings. Consultant will receive fifty percent (50%) of such amounts and the City will retain the other fifty percent (50%). In the event the City determines to forgive such past due amounts, the City will compensate DMG for actual out-of-pocket and travel expenses, plus a professional fee based DMG's standard hourly rates, outlined in Attachment "B", and the number of manhours worked on the audits. In addition to the above, the City also agrees to pay the Consultant actual out-of-pocket and per diem expenses, a total not to exceed $2,500 per franchisee/per audit for the electric, gas, local telephone and cable franchise audits. City shall diligently pursue collection of any and all amounts found to be due from any of the Companies as a result of the audits. If it becomes necessary to file suit to collect the amounts due, DMG agrees to cooperate with the City in the prosecution of such legal proceedings and to assist in providing evidence in support of the City's claim, including, but not limited to, its personnel testifying as to any of the audit findings. 5. Method of Payment The Consultant shall be entitled to payment on a monthly basis and such payment shall be made within thirty (30) days from the date of invoice. 6. Changes The City may, from time -to -time, require changes in the scope of the services to be performed hereunder. Such changes, which are mutually agreed upon by and between the City and the Consultant, shall be incorporated by written amendment to this contract. Services performed pursuant to an amendment shall be billed at our standard hourly rates. 7. Principal -Agent The relationship of the Consultant to the City shall be that of an agent to a principal. No other principal -agent or employer -employee relationship between the parties is created by this contract. By entering into this contract with the City, Consultant acknowledges that it will, in the performance of its duties under Page 2 of 6 this Contract, be acting as an agent, and that no officer, agent or employee of the Consultant will be, for any purpose, an employee of the City, and that no officer, agent or employee of the Consultant is entitled to any of the benefits and privileges of a City employee or officer under any provision of the statutes of the State of Texas and/or ordinances of the City. 8. Services and Materials to be Furnished by the City The City shall locally furnish the Consultant with all available necessary information, data, and material pertinent to the execution of this contract. The City shall cooperate with the Consultant in carrying out the work herein and shall provide adequate City office space and staff for liaison with the Consultant. 9. Termination of Contract The City shall have the right to terminate this contract by giving written notice to the Consultant of such termination and specifying the effective date thereof. The Consultant shall be entitled to payment for services rendered to the City through the effective date of termination. 10. Indemnification Each party shall be responsible for its own acts and will be responsible for all damages, costs, fees and expenses which arise out of the performance of this contract and which are due to that party's own negligence, tortious acts and other unlawful conduct and the negligence, tortious acts and other unlawful conduct of its respective agents, officers and employees. In the absence of negligence or wrongful conduct in Consultant's performance hereunder, the City shall defend, indemnify and hold the Consultant free and harmless from and against any claims, demands, actions, damages, expenses, fees and liabilities arising by virtue of any and all claims, demands or actions brought by third parties which are related in any way to the City's implementation of Consultant's recommendations and findings. 11. Limitation of Liability The City agrees that the Consultant's total aggregate limit of liability hereunder (whether contract, statutory, in tort or otherwise) for damages, whether direct, indirect, incidental, special or consequential, on any one or more or all claims (regardless of the number of different or other claims, claimants or occurrences) shall not exceed the total of professional fees paid under this contract. 12. Accomplishment of Project The Consultant shall commence, carry on, and complete the project with all practicable dispatch, in a sound, economical and efficient manner, in accordance with the provisions of the project and in accordance with all applicable laws. In accomplishing the project, the Consultant shall take such Page 3 of 6 steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on within the City. 13. Provisions Concerning Certain Waivers Subject to applicable law, any right or remedy which the City may have under this contract may be waived in writing by the City by a formal waiver, if, in the judgment of the City, this contract, as so modified, will still conform to the terms and requirements of pertinent laws. 14. Matters to be Disregarded The titles of the several sections, subsections and paragraphs set forth in this contract are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of the provisions of this contract. 15. Completeness of Contract This contract and any additional or supplementary document or documents incorporated herein by specific reference contain all the terms and conditions agreed upon by the parties hereto. No other contracts, oral or otherwise, regarding the subject matter of this contract, shall have any validity or bind any of the parties thereto. 16. Cily not Obligated to Third Parties The City shall not be obligated or liable hereunder to any party other than the Consultant. However, the City hereby acknowledges and agrees that the Consultant may use the services of Municipal Administrative Services, Inc. (MAS). 17. When Rights and Remedies Not Waived In no event shall the making by the City of any payment to the Consultant constitute or be construed as a waiver by the City of any breach of covenant or any default which may then exist on the part of the Consultant, and the making of any such payment by the City while any such breach or default exists shall in no wise impair or prejudice any right or remedy available to the City with respect to such breach or default. 18. Personnel The Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this contract. Such personnel shall not be employees of, or have any contractual relationship with, the City. All of the services required hereunder will be performed by the Consultant or under its supervision, and all personnel engaged in the work shall be fully -qualified to perform such services. Page 4 of 6 19. Certificate of Insurance Upon request, Consultant shall provide the City with a certificate of insurance which policies Consultant agrees to maintain in full force and effect during the term hereof. Consultant's submission of said certificate and maintenance of the policies set forth therein shall operate to discharge Consultant's insurance obligations hereunder. 20. Information and Reports The Consultant shall, at such time and in such form as the City may require, furnish periodic status reports concerning the status of the project, statements, certificates, approvals and copies of proposed and executed plans, claims and other information relative to the project, and upon completion of the project, Consultant shall provide the City with one (1) original and one (1) copy of a final report of audit findings. The City agrees that Consultant is providing terms and conditions as to subject matter and is not providing legal services. The City shall be responsible for determining the legal sufficiency of the terms and conditions provided by Consultant. 21. Venue This contract shall be govemed by, and shall be construed in accordance with, the laws of the State of Texas. Venue shall be in Lubbock County. 22. Notices Any notices, bills, invoices, or reports required by this contract shall be sufficient if sent by the parties in the United States mail, postage paid, to the addresses shown below: Name: Title: City of Lubbock Lubbock,Texas Page 6 of 6 George T. White Vice President David M. Griffith & Associates, Ltd. 8303 Southwest Freeway, Suite 900 Houston, Texas 77074-1601 ATTACHMENT A STATEMENT OF THE PROJECT STATEMENT OF THE PROJECT DMG will perform franchise fee compliance audit services for the City of Lubbock, Texas (the "City"). DMG will measure the franchise compliance performance, of each of the City's selected Franchisees, against what is required' by the City's franchise agreements and/or ordinances. The City will be provided with a comprehensive report which details audit activities and findings. This contract is provided to perform franchise compliance audits for the following franchises: • Southwestern Public Service Company • Energas • Other Franchisees as Specified by the City ATTACHMENT B STANDARD HOURLY RATES DMG PROJECT TEAM MEMBERS STANDARD HOURLY RATES Individual Standard Rate DMG Vice President $135 Director of Compliance Audit $125 DMG Senior Consultant $ 95 DMG Legal Consultant $140 DMG Consultants ,[: $ 85 A typical one-year audit of an electric, gas, or cable company normally takes approximately 180 manhours to complete. A typical one-year audit of a local telephone carrier takes approximately 240 manhours to complete. IN WITNESS WHEREOF, the City and the Consultant have executed this contract as of the date first written above. EXECUTED IN DUPLICATE ORIGINALS. ATTEST: APPROVED: APPROVED AS TO FORM: V� 1►'� " orney APPROVED AS TO CONTENT: `'/ mtemal �/�- w . CITY OF LUBBOCK, TEXAS • t 51 bbock APPROVED: DAVID M. GRIFFITH & ASSOCIATES, LTD. By: 1, ?.-- George T. White Vice President Page 6 of 6