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HomeMy WebLinkAboutRes 2013-02-08 Contract with Vybranz, LLC for Auditing ServicesCITY OF ANNA, TEXAS RESOLUTION NO. 2013-02-08 A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY MANGER TO ACT ON THE CITY'S BEHALF IN EXECUTING A CONTRACT WITH VYBRANZ, LLC FOR AUDITING SERVICES RELATING TO FRANCHISE FEES, TELECOMMUNICATIONS, ENERGY AND UTILITIES, AND OTHER COST REDUCTION PROJECTS WHEREAS, this City Council (the Council) desires to secure audit services related to franchise fee revenue and expenses related to telecommunications, energy and utilities, and other projects to reduce costs incurred by the City of Anna (the City) WHEREAS, Vybranz, LLC has been found to possess the necessary expertise to provide the desired services in a cost effective manner WHEREAS, Vybranz is charging a fair and reasonable price for their services NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated. The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval and Authorization of Contract The Council hereby approves the Contract attached hereto as Exhibit 1 for auditing services relating to franchise fees, telecommunications, energy and utilities, and other cost reduction projects, and authorizes, ratifies, and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the contract. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 26nd day of February, 2013. i-13 ENGAGEMENT AGREEMENT VYBRANZ LLC Customer: City of Anna 101 E. Broadway Address: 111 N. Powell Parkway P.O. Box 876 P.O. 776 Prosper, TX 75078 City, State, Zip: Anna, TX 75409 1. SERVICES TO BE RENDERED. This Engagement Agreement (this "Agreement") is made this 26th day of February, 2013, (the 'Effective Date") by and between VYBRANZ LLC (the "Company") and the City of Anna (the "Customer"). During the term of this Agreement, the Company will furnish consulting and cost auditing services and advice (collectively, the "Services"), as further described below, and as specifically requested by or authorized by the Customer, through the City of Anna City Manager or the City Manager's designee, Customer's Primary Agent, for this Agreement only. The Services will relate to matters or work being done or planned by the Customer, and the Customer's current agreements with third party providers, in the fields of Telecommunications (including but not limited to mobile, air cards, internet), Energy/Utilities (Electric, Gas), Merchant Payment Processing (credit cards), Franchise Fees, License Agreements and appropriate tax related reductions, and will be within the area of the Company's technical and operating competence, and will specifically include the following: Review of usage and expense with cost reduction solutions. Initial approach is to review, analyze, and audit current providers' blend of products and services to determine satisfaction of delivery and service, and determine points of negotiation. The Company may recommend modifications to the products with the Customer's current provider(s). The Company may also obtain and present competitive quotes with alternative providers designed to help drive the market -price down from either existing or new providers if deemed necessary, consistent with State competitive bidding and purchasing laws applicable to Texas municipalities, including but not limited to Chapter 252 of the Texas Local Government Code. No Services shall be rendered unless set forth in a written document titled "Cost Reduction Project." Each such Cost Reduction Project ("CRP") document shall describe the project and set forth the scope of the Services that the Company will perform, including but not limited to: (1) identification of any current provider and/or the type/class of potential provider(s); (2) description of any product(s) and/or services provided or offered by any such provider(s); (3) description of any internal controls, methods, procedures, or arrangements employed by the Customer; (4) estimated time of completion of the CRP; and (5) the general approach, strategy, methods and analysis that the Company intends to undertake in performing the CRP as relates to any of the subject matter set forth in the ma Each CRP document shall be signed by a duly authorized representative of the Company, and must be separately authorized by the City Manager or the City Manager's designee in writing before the Company provides any Services related to the CRP and before the Customer shall be obligated to make any payments to the Company under this Agreement. Upon completion of the CRP, the Company shall provide its analysis, findings, advice, and recommendations to the Customer in a written form, confirming that the CRP has been completed. The Customer is under no obligation to accept any proposal or recommendation of the Company, or to alter or take any action to alter any product, service, or provider. Any alterations to products, services, or providers will be in complete consultation and with the full knowledge and written approval of the Customer. 2. PAYMENT OF FEES AND BILLING. (a) NET SAVINGS OVER TIME. For each CRP, the Customer shall pay the Company an amount equal to 35% of the Customer's net total savings resulting from the Services provided in performance of the CRP for a period of 24 consecutive months. Said consecutive 24 -month period shall begin when the Customer first realizes net savings under an amended or a new agreement or arrangement with an existing or a new provider. The Customer may be directly or indirectly involved in the negotiation, discussion, assessment, and/or analysis of the Service and such involvement does not reduce or change the 35% payment to the company of net total savings. After the date that the Customer specifically requests or authorizes the Company to begin Services under a CRP and provided that the Company performs the scope of services set forth in the CRP, the Customer agrees that but for the efforts of the Company, savings as relates to such CRP would not have been achieved and will pay the Company according to the terms set forth above. (b) ONE-TIME SAVINGS. For each CRP resulting in only a one-time savings, the compensation payable to the Company by the Customer regarding the Customer's net total savings resulting directly from the Services, will be billed at an amount equal to 35% of the one- time savings; provided, however, that such one-time savings must be realized by the Customer within 36 months after the Company concludes its Services under the CRP. (c) BILLING. Billing will commence within 30 days of the Customer achieving actual net savings for each completed CRP and may result in multiple invoices or billing line items for each completed CRP, but in no event shall the Customer be required to pay more than a total of 35% of its net savings resulting from the CRP as set forth in paragraphs a. or b., above, as applicable. In each case, the Customer's payments of compensation to the Company will be made in response to invoices sent to the Customer by the Company. (d) TAXES. The fees and charges reflected in the Services will be exclusive of any sales, use, personal property, value added and goods/seivices taxes. Where applicable, such taxes shall appear as a separate item on the Company's invoice and the Customer shall be liable for the payment of such taxes to the Company. Notwithstanding the foregoing, the Customer shall not be responsible for any foreign, federal, state or local taxes based on the Company's income or receipts, or such other taxes based on the Company doing business in any particular jurisdiction. 3. OWNERSHIP OF WORK. The ownership of original source codes, financial models, process design, design templates, workflow charts, art work, including sketches_ and any other materials created by the Company in the cost reduction process, owned and used by the Company to perform the Services shall remain with the Company. Nothing in this Agreement contemplates or requires the transfer of any property or intellectual -property rights from the Customer to the Company or from the Company to the Customer. 4. INDEMNIFICATION. (a) INDEMNIFICATION BY COMPANY. Except as otherwise herein provided, the Company agrees to indemnify, defend and hold the Customer and its agents, officers, directors, lawyers, accountants, and employees harmless from and against any and all losses, claims, demands, damages, liabilities, costs and expenses, including (but not limited to) reasonable attorneys' fees and costs of any legal action arising from the Services provided in this Agreement. (b) SCOPE OF INDEMNIFICATION. Indemnification under this paragraph 4 shall include, but not be limited to, claims for libel, slander, infringement of copyright, theft of misappropriation of intellectual property, or unauthorized use of any trademark, trade name, or service mark. 5. LIMITATION OF DAMAGES. The Company will endeavor to provide high quality Services and a high quality Product. However, the Company is not, and will not be responsible for any consequential or incidental damages resulting from any issues or malfunction resulting from the delivery of Product(s) or Service(s) provided by recommended third party vendors and/or suppliers, including, but not limited to, any interruptions of service. 6. TERMINATION OF AGREEMENT. (a) MATERIAL BREACH. If either party is in material breach of this Agreement, the non -breaching party may serve the breaching party with a written notice specifying the material breach and requesting the breaching party to cure it. If the breaching party fails to cure the material breach within thirty (30) days after its receipt of the notice, the non -breaching party may terminate this Agreement by sending a written notice of termination to the breaching party. The termination of this Agreement shall take effect immediately on the receipt of such notice of termination by the breaching party. (b) TERMINATION ABSENT A BREACH. Either party may unilaterally terminate this agreement upon delivery of 30 days written notice to the other party. Any such termination shall be prospective in nature only; and shall not cancel the entitlement of the Company to ongoing payments to which the Company may be entitled under the terms of this agreement for reasonable and necessary Services performed and completed prior to the termination date. (c) EFFECT OF TERMINATION. On any termination of this Agreement pursuant to this paragraph 6, the Company may immediately cease providing Services to the Customer, and neither party shall have any further obligation to the other under this Agreement, provided that neither party shall be relieved from any obligations or liabilities arising under this Agreement prior to its termination, including (but not limited to) Payment of Fees for Services rendered prior to termination in accordance with paragraph 2 and indemnification obligations under paragraph 4. 7. INDEPENDENT CONTRACTOR. The Company is an independent contractor relative to the Customer, and nothing contained herein shall be deemed to create a partnership or agency relationship. There will be no joint control over the Services provided under this Agreement and the Customer shall not assume to exercise control over any of the means, methods, sequences, procedures, and/or techniques utilized to perform the Services. 8. WORK POLICY. (a) The Company agrees to observe the working hours, work rules, building security measures and holiday schedule of the Customer when on the Customer's premises, which will be provided to the Company upon request; provided, however, that adherence to such working hours and schedules shall not constitute justification for non -accomplishment of agreed upon schedules and timelines. (b) The Company further agrees to employ all reasonable efforts to meet Customer's assignment deadlines and documentation standards, as applicable. Unless otherwise agreed upon, the Company shall meet with Customer personnel to discuss and review the progress of the current project assignment(s) on a regular basis. 9. GENERAL PROVISIONS. (a) PARAGRAPH HEADINGS. Paragraph headings are for convenience only and shall not be a part of the terms and conditions of this Agreement. (b) WAIVER. Failure by either party at any time to enforce any obligation by the other party, to claim a breach of any term of this Agreement or to exercise any power agreed to hereunder will not be construed as a waiver of any right, power or obligation under this Agreement, will not affect any subsequent breach, and will not prejudice either party as regards to any subsequent action. (c) SEVERABILITY. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain unimpaired and in full force and effect. (d) SUBCONTRACTORS. The Company reserves the right to approve all subcontractors. Nothing in this subparagraph or otherwise in this Agreement shall be construed to relieve the Company from its obligations under this Agreement or to create any contractual relationship between the Customer and any subcontractor, or any obligation on the part of the Customer to pay or to see to payment of any money due any subcontractor as may otherwise be required by law. (e) ASSIGNMENT. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other; provided, however, that either party may assign any rights or obligations to a subsidiary or affiliate of that party or to any third party assuming all or part of the business function of either party's unit which will receive or deliver the Services and Deliverables provided hereunder upon notice of assignment to the other party. (f) GOVERNING LAW. This Agreement will be construed and enforced in accordance with, and governed by, the laws of the State of Texas in the United States of America without giving effect to any conflict of laws principles. The parties hereby consent to the personal jurisdiction of the courts of the County of Collin, Texas, and waive any rights to change venue. 10. NOTICES. All notices required by this Agreement shall be in writing and sent by Facsimile, Federal Express, or U.S. Mail, Return Receipt Requested as provided below. Such notice shall be sufficient for the purposes of this Agreement only if sent to the parry's "Address for Service" as listed below. Such Address for Service may be changed by either party by serving notice (in compliance with this paragraph) on the other parry. No notice sent by facsimile shall be sufficient without a confirmation receipt. Company's Address for Service: VYBRANZ LLC 101 E. Broadway Prosper, TX 75078 Facsimile: Customer's Address for Service: Customer: The City of Anna Address: 111 N. Powell Parkway City, State, Zip: Anna, TX 75409 Facsimile: (972) 924-2620 11. ATTORNEYS' FEES. In the event of any legal, equitable or administrative action or proceeding brought by either party against the other party under this Agreement, the prevailing parry shall be entitled to recover the reasonable fees of its attorneys and any costs incurred in such action or proceeding including costs of appeal, if any, in such amount that the court, or administrative body having jurisdiction over such action may award. 12. CURRENCY DENOMINATIONS. All currency denominations are in United States dollars. 13. WARRANTIES; LIMITATIONS ON LIABILITY. THE COMPANY MAKES NO WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN THE SERVICES ARE PROVIDED "AS IS." THE COMPANY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR RELATED MATERIALS WILL SATISFY CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES AND RELATED SERVICES WILL BE WITHOUT DEFECT OR ERROR. 14. ENTIRE AGREEMENT. This Agreement supersedes all previous agreements between the parties, contains the entire understanding between the parties, and may not be changed, except by writing, duly executed by each of the parties. 15. Term. This Agreement shall remain in full force and effect for three (3) years from the date hereof. IN WITNESS WHEREOF, the parties hereto through their duly authorized officers or agents have caused this Agreement to be duly executed and delivered as of the date set forth below. VYB ZILL: Ci o nna• f By: By Print Name: Barry D. Nalls Print ' ame:1 ip Sanders Title: Member Title: City 1�r1 ager Date: Date: f