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HomeMy WebLinkAbout1997-309ORDINANCE NO AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR ENVIRONMENTAL CONSULTING WITH YORK ENVIRONMENTAL SERVICES ON CERTAIN PARCELS OF LAND FOR RIGHT-OF-WAY EXPANSION OF US HIGHWAY 77, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, it is necessary to obtain the services of qualified environmental professionals to evaluate potential environmental hazards and concerns on fifty-seven parcels of land prescribed for right-of-way expansion of U S Highway 77, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS SECTION I That the City Manager is authorized to execute a Professional Services Agreement for environmental evaluation and consulting with York Environmental Services on fifty-seven parcels of land for right-of-way expansion for U S Highway 77, substantially in the form of the contract which is attached to and made a part of this ordinance for all purposes SECTION II That the City Manager is authorized to make the expenditures as set forth in the attached Agreement SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the — day of (/C� 0(J�1� 1997 JACK MILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY 0--- A OVED TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY R-A e \doer.---., PROFESSIONAL SERVICES AGREEMENT FOR ENVIRONMENTAL CONSULTING STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made and entered into as of the a � t day of , 1997, by and between the City of Denton, Texas, a Texas municipal corporate n, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76 01, hereinafter called "OWNER" and York Environmental Services, with its corporate office at P 0 Box 256, Myra, Texas 76253, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives WHEREAS, it is necessary to obtain the services of a qualified environmental professional to evaluate potential environmental hazards and concerns on fifty-seven parcels of land prescribed for expansion of U S Highway 77, WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT 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 Environmental assessment on fifty-seven (57) parcels of land for widening of U S Highway 77 ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A To perform all those services set forth in CONSULTANT's letter proposal of August 22, 11997, which proposal is attached hereto and made a part hereof as Exhibit "A" as if written word for word herein B CONSULTANT shall perform all those services set forth in individual task orders, if any, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements C 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 or task orders ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence in this Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee ARTICLE IV COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of environmental consulting 2, "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment B BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "C" which is attached hereto and made a part of this Agreement as if written word for word herein, a total fee, including reimbursement for direct non -labor expenses not to exceed $35,000 00 Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee, however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered The OWNER may withhold the final five percent (5%) of the contract amount until completion of the Project Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is Page 2 not submitted in compliance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "C " Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection B hereof Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said sixtieth (60`h) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation " ARTICLE V OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants ARTICLE VI OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement The CONSULTANT is entitled to retain copies of all such documents The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense Page 3 In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project ARTICLE VII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right ansing from employee status ARTICLE VIII INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT 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 IX INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintains 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 A Automobile Liability Insurance with bodily injury limits of not less than $50,000 for each person and not less than $100,000 for each accident, and with property damage limits of not less than $50,000 for each accident B Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate C The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written Page 4 notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage ARTICLE X 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 include the other party to the disagreement without the other's approval ARTICLE XI TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party B 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 C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article IV "Compensation" Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use ARTICLE XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work, nor shall such approval be deemed to be an assumption of such responsibility by the Page 5 OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants ARTICLE XIII 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 CONSULTANT C Ed York York Environmental Services P O Box 256 Myra, Texas 76253 To OWNER City of Denton Roger Wilkinson, Right -of -Way Agent 215 East McKinney 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' marling ARTICLE XIV ENTIRE AGREEMENT This Agreement, consisting of 9 pages and 1 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 XV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, 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 XVI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended Page 6 ARTICLE XVII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap ARTICLE XVIII PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may anse during the term of this Agreement B All services required hereunder will be performed by the CONSULTANT 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 XIX ASSIGNABILITY The CONSULTANT 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 OWNER ARTICLE XX 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 XXI MISCELLANEOUS !� The following exhibits are attached to and made a part of this Agreement (list exhibits) B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any Page 7 directly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to this Agreement CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section OWNER shall give CONSULTANT reasonable advance notice of intended audits C 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 D For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be C Ed York However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement G 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 CONSULTANT,4has executed is greement throu h its duly authorized undersigned officer on this the �i b day of 19 CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER Page 8 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY APP VED AS 0 LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY 1-3•1 WITNESS E \DOCS\K\PORK ENVIRONMENTAL SERVICES CONSULTANT C rd Yorl York Envfronmental Services Page 9 EXHIBIT A York Environmental Services 505 N Maple Street Muenster, Texas 76252 (940) 736-2392 August 22, 1997 Mr Roger N Wilkinson City of Denton 221 N Elm Street Denton, Texas 76201 FACSIMILE No Pages 4 FAX (940) 349-7707 Subject Cost Estimate - U S 77 Plan of Proposed Right of Way Fifty-seven (57) Prescribed ROW Parcels TX DOT Environmental Checklist Dear Mr Wilkinson, Listed below is our cost estimate for performing a total of fifty-seven (57) environmental assessments on parcels of land prescribed for right of way expansion for U S highway 77 All assessments will be in accordance with the Texas Department of Transportation Environmental Checklist Estimated costs are based on the drawings provided during our meeting on August 13, 1997 and on the number of hours required to perform each of Parts 1 through 6 of the checklist for small tracts (less than 10 acre), medium size tracts (between 10 acre and 3 0 acres) and large tracts (over 3 0 acres) Twenty-six (26) right of way parcels are prescribed for small tracts less than one acre in original size The following tracts are figured in this category 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 30, 31, 32, 37, 43, 48, 49, 50, 51, 53, 54, 55, and 56 Costs for these parcels are Part No Description Hours Cost" 1 Current Land Use 0 5-1 0 $ 4500 2 Property Other Uses 3 0-4 0 18000 3 Site Observations 0 5-1 0 4500 Roger Wilkinson City of Denton Page 2 4 Transformers, etc (part of 3) (see part 3) 5 Lead, Asbestos (part of 3) (see part 3) 6 1/2 mile activities 2 0-3 0 135 00 SUBTOTAL $ 405.00 TOTAL (26 parcels ® $405.00) . $10,530.00 Costs are based on maximum estimated time required to perform each task Eight (8) right of way parcels are prescribed for medium sized tracts between one (1) and three (3) acres in size Parcels included in this category are 8A-B, 35, 36, 40, 41, 42, 44, and 62 Estimated costs for these parcels are Part No Description Hours Cost` 1 Current Land Use 0 5-1 0 $ 4500 2 Property Other Uses 3 0-4 0 18000 3 Site Observations 1 0-2 0 9000 4 Transformers, etc (part of 3) (see part 3) 5 Lead, Asbestos (part of 3) (see part 3) 6 1/2 mile activities 3 0-4 0 18000 SUBTOTAL $ 495.00 TOTAL (8 parcels a $495.00) .... . .. $ 3,960.00 Costs are based on maximum estimated time required to perform each task Twenty-three (23) right of way parcels are prescribed from large tracts greater than three (3 0) acres in size These parcels include 1, 2, 3, 4-1 & 4-2, 5, 6A & 6AE & 613, 7, 10, 9- 1 & 9-2, 11, 12, 13 & 13E, 14, 29, 33A, 3313, 33D, 33F, 33G, 34, 38, 52 and 57 Roger Wilkinson City of Denton Estimated costs to perform these assessments are Part No Description Hours Cost' 1 Current Land Use 0 5-1 0 $ 4500 2 Property Other Uses 3 0-4 0 18000 3 Site Observations 2 0-3 0 135 00 4 Transformers, etc (part of 3) (see part 3) 5 Lead, Asbestos (part of 3) (see part 3) 6 1/2 mile activities 4 0-5 0 22500 SUBTOTAL $ 585.00 TOTAL (23 parcels 0 $585.00) ... . . $ 13, 455.00 Page 3 Costs are based on maximum estimated time required to perform each task The total costs for performing environmental site assessments per the Texas Department of Transportation Environmental Checklist on all prescribed right of ways parcels is $27,945 00 Costs include preparation and submittal of the Environmental Checklist and letter of transmittal for each parcel Note that the time estimated for a portion of Part 1 and Parts 3, 4 and 5 are based on the time required to perform site reconnaissance, i e time on location A portion of Part 1 and all of Part 2 will require use of past tax records and examination of Denton County deed records in order to determine property use over the past approximately 60 years were possible Costs associated with Part 2 are somewhat constant Part 6 of the Environmental Checklist requires a record search of local, state and federal databases to determine present and possible past activities which may pose potential environmental concerns for the subject property Reconnaissance in the vicinity of the sites is also conducted to locate activities or remnants of past activities which may impact the subject property Please understand that the time estimated for performing each part of the checklist is based Roger Wilkinson Page 4 City of Denton on the cumulative knowledge gained from one parcel to the next In as much, if each parcel were assessed independently, the cost would be higher Therefore this cost estimate is valid only in its entirety Separate stand alone bids can be submitted for specific parcels if necessary We are ready to begin the environmental assessments immediately It is estimated that three (3) to five (5) parcels can be assessed per week The entire project could be completed in 12 to 20 weeks Thank you for allowing me to be of service Please call me at (940) 736-2392 (home office) or (214) 808-8631 (mobile) if I you have any questions or if I can be of further assistance I look forward to working with you and the City of Denton Sincerely Yours, z��'V�e C EdWork, Certified Environmental Specialist York Environmental Services Member of the Environmental Assessment Association