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HomeMy WebLinkAboutResolution - 6236 - Professional Services Contract - Gelber Management Inc - Consulting, FMPPD LP&L - 03/25/1999Resolution No. 6236 Item No. 19 March 25, 1999 RESOLUTION 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 Professional Services Contract between the City of Lubbock and Gelber Management, Inc. to provide consulting services regarding fuel management program for the production department of LP&L. Said Contract is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 25th day of N,,r,h 1999. DY SITTO , R APPROVED AS TO CONTENT: P 1 Thomps Managing Director of Electric Utilities APPROVED AS TO FORM: n M. Knight Assistant City Attorney ]MK:cp CcdocslGe]ber.Res March 12, 1999 Resolution No. 6236 Item No. 19 Narch 25, 1999 PROFESSIONAL SERVICES CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § This consulting agreement, (the "Contract"), effective as of the 2,,th day of March 1999, ("Effective Date"), is by and between the City of Lubbock, ("City"), a Texas municipal corporation, acting through Lubbock Power & Light ("LP&L") and Gelber & Associates Corp., a Texas corporation ("Consultant"). WITNESSETH WHEREAS, the City desires consulting services regarding LP&L's fuel management program for its production department; and WHEREAS, Consultant has experience in and is willing to consult with the City concerning fuel management for LP&L; and WHEREAS, Consultant is willing to undertake certain other obligations to the City as herein set forth. NOW THEREFORE, the parties hereto agree as follows: ARTICLE I. TERM This Agreement shall continue in full force and effect for an initial terra. of Fifteen (15) months and thereafter until canceled by either party. ARTICLE xl. COMPENSATION Consultant shall receive: 1. A fee based upon a percentage of the actual savings incurred from estimated budgeted and savings based upon actual performance versus market as specified in Appendix A. These savings will be calculated according to Appendix A on a quarterly basis on the City fiscal year beginning with the fiscal year 1999. 1 Professional Services Agreement City of Lubbock/Gelber & Associates Corp. 2. A fee of 18% of actual margins involved with the sale of gas outside of City's system. 3. A quarterly retainer of Eighteen Thousand and NO/100 Dollars ($18,000.00) to provide daily or as needed advice and information of a general nature. 4. A fee paid individually on a task -by -task basis for specific projects. Consultant will prepare a specific task description along with specific hourly estimates for services provided. The fee will be based on actual costs of services plus 20%. a. Commission the Consultant to perform analysis to investigate methods to access markets outside of SPS service territory. ARTICLE III. TERMINATION In the event the Consultant breaches any term and/or provision of this Contract the City shall be entitled to exercise any right or remedy available to it at law or equity, including without limitation, immediate termination of this Contract and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any other right or remedy and all other rights and remedies shall be cumulative. City or Consultant may, in its sole discretion, terminate this Agreement at any time after the initial term, with or without cause, upon Thirty (30) days written notice. ARTICLE IV. WAIVER Any waiver granted hereunder must be in writing and shall be valid only in the specific instance in which given. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. Consultant is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas and is qualified to carry on its business in the State of Texas. B. Corporate Power. Consultant has the corporate power to enter into and perform this Contract and all other activities contemplated hereby. C. Authorization. Execution, delivery, and performance of this Contract and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of the Consultant. This Contract constitutes legal, valid, and binding obligations of the Consultant and is enforceable in accordance with the terms thereof. 2 Professional Services Agreement City of Lubbock/Gelber & Associates Corp. D. Consultant. Consultant maintains a professional staff and employs, as needed, other qualified specialists experienced in energy management services for public utilities, and are familiar with laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. E. Performance. Consultant will and shall conduct all activities contemplated by this Contract in good and workmanlike manner, and comply with all laws, rules, and regulations, both state and federal, relating to energy management services for public utilities, as contemplated hereby. If any of the activities of the Consultant, or omissions of the activities required herein, shall cause, in whole or in part, liability or loss on the part of the City, it shall be deemed that the Consultant did not perform said activities (or Omitted the performance of said activities) in a good and workmanlike manner. F. Use of Copyrighted Material. Consultant warrants that any materials provided by Consultant for use by City pursuant to this Contract shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other similar law. Consultant shall be solely responsible for ensuring that any materials provided by Consultant pursuant to this Contract satisfy this requirement and Consultant agrees to hold City harmless from all liability or loss to which City is exposed on account of Consultant's failure to perform this duty. G. Registrations and Memberships. Consultant represents and warrants that it and all its representatives have all necessary registrations or memberships with or in the Commodity Futures Trading Commission, the National Futures Association and any other federal or state governmental body or agency (if any) required to perform the services and receive the consulting fee from City contemplated hereby and understands and agrees the City's obligation to make any payments shall be waived (without any obligation whatsoever to make compensating payments in the future) during any period as to which the City is advised by Counsel or otherwise becomes aware that Consultant does not have all necessary registrations and memberships. H. Consulting Services. Consultant acknowledges and agrees that this Agreement contemplates that Consultant shall, to an extent not inconsistent with its responsibilities to third parties, and subject to the request by City management, provide general consulting services with respect to such matters as City shall reasonably request. Consultant hereby agrees that it shall, in good faith, cooperate in assisting City in that respect, regardless of whether the specific advice or service requested of Consultant is explicitly set forth herein, and give to City, as its officers described hereinabove may so request, the benefits of Consultant's experience and knowledge of the commodity markets, and consult with such persons in an advisory capacity concerning such markets and related matters. Consultant agrees, insofar as prior obligations shall permit, to hold itself available to consult and advise with officers and other representatives of City on the foregoing and related matters. However, it being expressly understood and agreed, in no event, shall Consultant consult, advise or confer with any particular employee or representative of City regarding fuel management or any matter described herein which may relate to any personal 3 Professional Services Agreement City of Lubbock/Gelber & Associates Corp. investment program of said particular employee or representative of City without the express written consent and approval of the City. I. Additional Services. It is the Consultant's intention to forge a mutually beneficial alliance in the purchase and sale of natural gas and power by and for City. Services covered above are not necessarily all-inclusive. As City's fuel consultant, Consultant shall to the extent possible, provide additional services and assistance as warranted by changing conditions, and on terms mutually agreed to by the parties. J. Reports. During the term of this Agreement, Consultant shall assist City in the preparation of any reports and other documents which City may reasonably request. K. Presentation. During the term of this Agreement, Consultant agrees that, to the extent feasible without interference with Consultant's regular business operations, its principals and employees shall be available to consult concerning presentations which City may wish to organize relating to fuel management and to attend such presentations, in each case to the extent City may reasonably request. Art Gelber shall be the consultant representative present at City presentations as long as adequate notice is given to avoid scheduling conflicts. City will reimburse Consultant for reasonable expenses associated with site visits. L. Consultations Concerning Cather Programs. During the term of this Agreement, Consultant agrees to discuss with City and its representatives the structure and operation of the other programs for which Consultant serves as advisor, however, Consultant need not disclose any information deemed by Consultant to be confidential to the other programs in the course of such consultations. ARTICE N. SCOPE OF WORK The Consultant shall accomplish the following: 1. Consultant shall provide consulting and risk management services to assist in reducing price volatility and minimizing City's fuel costs. Consultant shall work with City to develop a hedging strategy based on existing market conditions and load forecasts. 2. Consultant shall assist City in continually analyzing all relevant gas cost factors to help assure lowest possible gas costs on an ongoing basis. Monthly, or as conditions warrant, Consultant shall review market conditions, revised load forecasts, and current hedge position to further reduce costs. 3. Consultant shall provide daily gas supply support to purchase spot gas and/or look for other opportunities to reduce costs by taking advantage of efficiencies which may occur as a result of volume purchases and offsetting load profiles. 4 Professional Services Agreement City of Lubbock/Gelber & Associates Corp. 4. Consultant shall provide assistance in marketing excess gas when opportunities exist for City to purchase electric power more cheaply than it can generate, or when excess gas must be sold due to equipment failure or for other reasons. 5. In the event of an error or omission caused solely by Consultant, Consultant shall rectify the problem as quickly as possible and shall withstand any financial consequences incurred as a result of the error or omission. In the event that City is unable or fails for any reason to act on advice of Consultant such failure shall not result in any liability by City to Consultant whatsoever. ARTICLE V. INDEPENDENT CONTRACTOR STATUS Consultant and City agree that Consultant shall perform the duties under this Contract as an independent contractor. The Consultant has the sole discretion to determine the manner in which the services are to be performed. ARTICLE VI. INSURANCE A. General. Consultant shall procure and carry, at its sole cost and expense through the life of this Contract insurance protection hereinafter specified, in form and substance satisfactory to the City. City must approve all policies prior to the commencement of any activities whether performed by the Consultant, subcontractor, agents, or third parties. The insurance carrier must be an insurance company authorized to transact business in the State of Texas and have a Best's Financial rating of A:Vll. A Certificate of Insurance specifying each and all coverage shall be submitted to City prior to the execution of this Contract. All insurance shall be prepared and executed by the insurance company or it's authorized agents and shall contain an endorsement naming the City an additional insured. Written notice of cancellation or any material change will be provided thirty (30) days in advance of cancellation or change. All insurance, other than Workers' Compensation, shall provide a waiver of subrogation in favor of the City, and shall contain cross liability and severability clauses. B. Required Coverage. Consultant shall obtain and maintain policies of insurance throughout the Contract term in limits specified below. 1. Worker's Compensation. The Consultant shall maintain Workers' Compensation and Employer's Liability insurance coverage as required by statute or coverage approved by the City Disk Management Coordinator. 2. Commercial General Liability. The Consultant shall maintain Commercial General Liability coverage endorsed to include premises/operations, contractual liability, Professional Services Agreement City of Lubbock/Gelber & Associates Corp. professional errors and omissions and completed operations. The policy shall have a minimum of Five Hundred Thousand and no/100 Dollars ($500,000) combined single limit in the aggregate and per occurrence. C. Subcontractors. The Consultant shall require each subcontractors with whom it contracts to provide activities as contemplated by this Contract, to obtain proof of insurance coverage as set forth herein, and to provide to Consultant, prior to such person performing any such activities, a Certificate of Insurance establishing such coverage. ARTICE VII. EMPLOYMENT OF AGENTS Consultant may employ or retain agents, consultants, contractors, or third parties, to perform certain duties of Consultant under this Contract provided that Consultant is in no event relieved of any obligation under this Contract. Any such agents, contractors, or third parties retained and/or employed by Consultant shall be required to carry, for the protection and benefit of the City and Consultant and naming said third parties as additional insureds, insurance as described above in this Contract. ARTICLE VIII. CONFIDENTIALITY Consultant shall retain all information received from or concerning the City and the City's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the City, unless otherwise required by law. ARTICLE IX. INDEMNITY Consultant shall indemnify and save harmless the City and its officers, agents, and employees from all suits, actions, losses, damages, claims, or liability of any character, type, or description, including without limiting the generality of the foregoing all expenses of litigation, court costs, and attorney's fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, or occasioned by, the acts of Consultant, its agents or employees, in the execution of this Contract. ARTICLE X. COMPLIANCE WITH APPLICABLE LAWS Consultant shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Contract, and any amendments thereto. Professional Services Agreement City of Lubbock/Gelber & Associates Corp. ARTICLE XI. NOTICE A. General. Whenever notice from Consultant to City or City to Consultant is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery), or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Consultant's address. Consultant's address and numbers for the purposes of notice are: Gelber and Associates Corp. Attn: Art Gelber 1010 Lamar, Suite 540 Houston, Texas 77002 Telephone: (713) 655-7000 Facsimile: (713)665-1623 C. City's Address. The City's address and numbers for the purposes of notice are: Lubbock Power & Light Attn: Managing Director P. 0. Box 2000 1301 Broadway Lubbock,Texas79457 Telephone: (806) 767-2501 Facsimile: (806) 775-3112 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE XII. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Contract are inserted in this Contract strictly for the parties' convenience in identifying the provisions to this Contract and shall not be given any effect in construing this Contract. Professional Services Agreement City of Lubbock/Gelber & Associates Corp. B. Audit. Consultant shall provide access to its corporate books and records to the City. The City may audit, at its expense and during normal business hours, Consultant's books and records with respect to this Contract between the Consultant and City. C. Records. Consultant shall maintain records that are necessary to substantiate the services provided by the Consultant D. Assignability. Consultant may not assign this Contract without the prior written approval of the City. E. Successor and Assigns. This Contract binds and inures to the benefit of the City, Consultant, and their respective successors, legal representatives, and assigns. F. Construction and Venue. THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Contract is ever held to be invalid or ineffective by any court of competent Jurisdiction with respect to any person or circumstances, the remainder of this Contract and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Contract shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Contract, and duly executed by the Consultant and City. I. Entire Agreement. This Contract, including Appendix A hereto, contains the Entire Contract between the City and Consultant, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. 8 Professional Services Agreement City of Lubbock/Gelber & Associates Corp. EXECUTED as of the Effective Date hereof. +CITY OF LUBBOCK GELBER & ASSOCIATES CORPORATION By: Indy Sitton Arthur W. Gelber Mayor President A ST• Kayt e P. Darnell City e etary APPROVED AS TO CONTENT: Paul Thompso Managing Director of Electrical Utilities APPROVED AS TO FORM: Afin M. Knight Assistant City Attorney JMK:cp Cityatl/John/ProtSvcs.Agr Professional Services Agreement City of Lubbock/Gelber & Associates Corp. DRAFT Appendix A The contingency payment will be based upon a combination of savings versus the budget and versus the market. A contingency payment is agreed upon and payable from LP&L to Gelber & Associates. Calculations will be made quarterly and be paid on the 15' business day of the month following the last business day of the quarter. Determination of Savings Total Quarterly Savings vs. Market (TQSVM) that is less than $0 will be equal to $0 Total Quarterly Savings vs. Budget (TQSVB) that is less than $0 will be equal to $0 For Budget Benchmark: (Budget cost/unit — Actual cost/unit)gas * Actual volume = Savings vs. Budget gas Savings versus Budget gas + Savings versus Budget = Total Quarterly Savings vs. Budget (TQSVB) For Market Benchmark: (Market cost/unit gas - Actual cost/unit) * Actual volume = Savings vs. Market gas Savings versus Market gas = Total Quarterly Savings vs. Market (TQSVM) Payment Gelber Savings Factor (SF) = ((TQSVB * .20) + (TQSVM *.80)) Payment Gelber = SF *18% Capon payments to Gelber: Payment Gelber is to be capped at 0.25% of the actual cost per quarter for gas for the remainder of the fiscal year included under the effective dates of the attached Professional Service Agreement for transactions conducted on or after January 1, 1999 unless mutually agreed upon by both parties. All activity occurring after January 1, 1999, will be covered solely by this agreement. The cap shall only apply to the contingency payment and specifically excludes items covered in the Professional Service Agreement (Article H, Paragraphs 2 and 4). 10 Professional Services Agreement City of Lubbock/Gelber & Associates Corp. Definitions: Contingency Payment — The contingency payment is the payment to Gelber for performance versus budget and versus market. It specifically does not apply to payment to Gelber for retainer, consulting, or special projects. Budget cost/unit gas — Lubbock will enter into the MERC program during fiscal 1999. The budget cost of gas will be weighted average of gas delivered under the MERC program plus all transportation, MERC exchange charges and MERC discounts weighted together with gas not delivered under the MERC program plus all transportation, MERC exchange charges, and MERC discounts. The budget cost/unit gas will be calculated monthly. Savings — Savings must be a number greater than $0.00. Should any calculation result in savings that can be interpreted as negative, that savings shall be $0.00. TQISVM, TQS2VM, etc. — Total first Quarter Savings versus Market, total second Quarter Savings versus Market, etc. The quarter specifically references the City of Lubbock's fiscal year. MERC — Municipal Energy Resources Corporation 11 Professional Services Agreement City of Lubbock/Gelber & Associates Corp.