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HomeMy WebLinkAbout1997-361ORDINANCE NO. q / — AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTt A PROFESSIONAL SERVICES AGREEMENT WITH TEAGUE NALL AND PERKINS, INC. FOR DEVELOPMENT OF A CITY-WIDE FLOOD MITIGATION PLAN; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE (PURCHASE ORDER # 81811 - TEAGUE, NALL AND PERKINS, INC IN THE AMOUNT OF $25,200 00). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the City Manager is authorized to execute a professional services agreement between the City of Denton and Teague, Nall and Perkins, Inc for the development of a city-wide flood mitigation plan, under the terms and conditions, contained in said professional services agreement, which is attached hereto and made a part hereof SECTION H. That the City Council hereby authorizes the expenditure of funds in the manner and amount as specified in the professional services agreement SECTION III. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the /6 f day of VJQNXf 4 , 1997 JAC LER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY. APPROVED AS TO LEGAL FORM. HERBERT L PROUTY, CITY ATlTQRNEY RA BY c J —1c PR O� PROFESSIONAL SERVICES AGREEMENT for the preparation of a CITY-WIDE FLOOD MITIGATION PLAN STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made and entered into as of the � day of , 1997, by and between the City of Denton, a Texas Municipal Corporation, with its principal office at 215 E McKinney Street, Denton, Denton County, Texas 76201, (hereinafter sometimes referred to as "OWNER") and Teague Nall and Perkins, Inc , with its corporate office at 915 Florence St . Fort Worth, Texas 76102, hereinafter called the ("CONSULTANT") acting herein, by and through their duly authorized representative 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 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 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 The Project shall include without limitation the development of a city-wide flood mitigation plan which will be prepared in accordance with the guidelines provided in FEMA's document, PAGE 1 "Flood Mitigation Assistance (FMA)" The plan will then be submitted to FEMA for the purpose of applying for federal grant assistance in the acquisition of property and/or easements for the construction of major drainage facilities along the main channels of the Pecan Creek and PEC-4 watersheds ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A The CONSULTANT shall perform all those services as necessary and as described in the OWNER's verbal request for a priced, scope of work proposal, which the OWNER has utilized to solicit the CONSULTANT's services B To perform all those services set forth in CONSULTANT'S proposal dated September 8, 1997, which proposal is attached hereto and made a part hereof as Exhibit "A" as if written word for word herein C CONSULTANT shall perform all those services set forth in individual task orders which will be set up as separate sections in the flood mitigation plan and shall be attached to this Agreement and made a part hereof for all purposes as separate agreements Task Order Sections of Plan Description of how the public has been and will be involved in the planning process Coordination with other agencies and/or organizations Preparation of a flood hazard inventory Identification of specific flood problem areas Review of possible options for mitigation 6 Compile existing data into a cohesive format to address the requirements of the plan PAGE 2 7 Summarize the outcomes of all above action and outline action to be taken by City for plan implementation 8 Holding of a public hearing to enlist citizen input and obtain adoption of plan by City Council These tasks are described in greater detail in "CRS Floodplain Management Planning Process " This appendix is attached to this proposal as Exhibit "C" and is incorporated herein D If there is any conflict between the terms of this Agreement and any exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits and/or task orders ARTICLE III ADDITIONAL SERVICES Additional Services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above described basic services, are described as follows A During the course of the project, as requested by OWNER, the CONSULTANT will be available to accompany OWNER's personnel when meeting with FEMA, the Texas Natural Resource Conservation Commission, U S Environmental Protection Agency, or other regulatory agencies The CONSULTANT will assist OWNER personnel on an as -needed basis in preparing compliance schedules, progress reports, and providing general technical support for the OWNER's compliance efforts B Assisting OWNER or Contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties PAGE 3 outside of and in addition to this Agreement C Preparing copies of Computer Aided Drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system D Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications E Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development of the Project, including the preparation of engineering data and reports for assistance to the OWNER ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution by the OWNER and the CONSULTANT of this Agreement and upon issuance 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 PAGE 4 ARTICLE V COMPENSATION A COMPENSATION TERMS: 1 "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms 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 incidentals 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 CONSULTANT based on the cost estimate detail at an hourly rate shown in Exhibit "B", which is attached hereto and made a part of tlus Agreement as if written word for word herein, a total fee including reimbursement for direct non -labor expense not to exceed 29.40 . 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 designees, 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 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 not submitted in compliance with the terms of dus Agreement The City shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in rJT[9a 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 IV , Additional Services, without obtaining prior written authorization from the OWNER C. ADDITIONAL SERVICES For Additional Services authorized in writing by the OWNER in Article IV, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "B" 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 (60th) 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 PAGE 6 ARTICLE VI 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 VII 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 beat OWNER'S sole risk and expense In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this Agreement, CONSULTANT is released from any and all liability relating to their use in that project ARTICLE VIII 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 arising from employee status PAGE 7 ARTICLE IX 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 party's 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 X INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain 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 Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate PAGE 8 B Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident and with property damage limits for not less than $100,000 for each accident C Worker's Compensation Insurance in accordance with statutory requirements and Employers' Liability Insurance with limits of not less than $100,000 for each accident D Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate E 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 30 days prior written 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 XI 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 PAGE 9 ARTICLE XII TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, e~ther party may terminate by giving thirty (30) days advance written notice to the other party B This Agreement may be terrmnated ~n whole or ~n part in the event of either party substantially falling to fulfill its obhgataons under this Agreement No such termination will be affected unless the other party is given (1) wrnten notme (dehvered by certified mall, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, and not less than 30 calendar days to cure the failure, and (2) an opportumty 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 serwces to the OWNER within 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 Amcle IV, Compensation Should the OWNER subsequently contract with a new CONSULTANT for the contmuauon of services on the project, CONSULTANT shall cooperate m provldIng reformation The CONSULTANT shall turn over all documents prepared or furmshed by CONSULTANT pursuant to tins Agreement to the OWNER on or before the date of termination but may maintain copies of such documents for its use ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute nor be deemed a release of the responsibthty and habfltty of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work, nor shall such PAGE 10 approval be deemed to be an assumption of such responsibility by the City for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and sub -consultants ARTICLE XIV 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 at 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 Teague Nall and Perkins, Inc J Richard Perkins, P E Title Principal 2001 W Irving Blvd Irving, Texas 75061 To OWNER City of Denton ATTN Jerry Clark, P E Title Director of Engr & Transp Dept 215 E 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 mailing ARTICLE XV ENTIRE AGREEMENT This Agreement consisting of 16 pages and 3 exhibits 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 PAGE 11 have been made in connection with the subject matter hereof ARTICLE XVI 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 party 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 XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended ARTICLE XVIII 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 PAGE 12 ARTICLE NIX 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 City CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise 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 XX 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 XXI 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, duly executed, and, the parties further agree that the provisions of this section will not be waived PAGE 13 unless as herein set forth ARTICLE XXII MISCELLANEOUS A The following exhibits are attached to and made a part of tlus Agreement Exhibit "A" -- Consultant's Proposal Exhibit "B" -- Employee Hourly Rates Exlubit "C" -- CRS Floodplam Management Planning Process 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 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 this work hereunder shall be J Richard Perkins, Gary Vickery, Kelly Dillard, and Kelly Wood However, nothing herein shall limit CONSULTANT from using other qualified and competent members of their 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, efficient manner, and, in accordance with the PAGE 14 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 to, 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 The fee quoted in the proposal is based on significant cooperation and assistance by City staff CONSULTANT anticipates that the OWNER will expend approximately $4,200 of effort to assist with community meetings, to aid in evaluation of existing programs and activities, and to provide guidance in establishing goals and plans of action 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 has executed this Agreement through its duly authorized undersigned officer on this the 9 14 day of act, 19 97 CITY OF DENTON, TEXAS t4: -.J)� — Ted Benavides, City Manager 17TOOF61 ATTEST JENNIFER WALTERS, CITY SECRETARY C)W By —� APP OVED A TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By U WITNESS AEE00894 TEAGUE NALL AND PERKINS, INC. By Name \ Richard Perkins. P E Title Principal 17M)are EXHIBIT "A" CONSULTANT'S PROPOSAL C O N $ U L G I N E E R Septembe 11, 1997 Mr Jerr~ Clark, P,E Director, Df Engmeermg and Transportation Dept City of D ~nton City Hall West 221N ErnSt Denton, 'X 76201 Re: Engineering Services Proposal for City-Wide Flood Mitigation Plan Dear Jen We since ~ly appreciate the opportumty to submat the enclosed revised proposal (Professional Services, agreement) for the provision of professional engineering services for the subject project The spec fie scope of services is outlined in Article II of the attached Agreement We have prepared )ur fee calculation on the basis of the number of man hours we believe will be needed to complete ~he project Therefore, we propose to provide our professional engineering services for flus project in accordance with the enclosed Professtonal Services Agreement for a total fee of $ 29,400 In accord nee with our current Contract with the City of Denton, we understand that the proposed fee for ou services will be based on a not-to-exceed amount with engineering services being billed to the Clt on an hourly rennb~sable basis We have nelosed three (3) signed copies of the "Agreement" for execution by the City Receipt of one fu ly executed copy of the "Agreement" by our firm will serve as our "notice-to-proceed" on this pr loot Thank yo again for the opportumty to once again provide our services to the City of Denton We look for~ ard to asslstmg you m the successful completion of flus project Very truly yours, TEAGUE NALL AND PERKINS, INC. rd Perkins, P E JRP/czf Enclosurls  2001 W IRVING 6LVD 61E FLORENCE STREET IRVING TEXAS 75061 RTWORTH TEXAS 76102 (972) 254 1765 F~ (817) 336 5773 METRO (972) 251 1627 t FAX {817) ,336 2813 FAX (972) 251 4348 EXHIBIT "B" EMPLOYEE HOURLY RATES TEAGUE NALL AND PERKINS, INC. EMPLOYEE HOURLY BILLING RATES Principal $ 11000 Project Manager $80 00 - 90 00 Project Engineer $50 00 - 70 00 CAD Technician $40 00 - 58 00 Clerical $33 00 - 55 00 EXHIBIT "C" CRS FLOODPLAIN MANAGEMENT PLANNING PROCESS EXHIBIT "C" CRS FLOOPLAIN MANAGEMENT PLANNING PROCESS The NFIRA states that to be eligible to receive an FMA project grant, a State or community must have a FEMA-approved mitigation plan An existing plan that has been credited through the Community Rating System (CRS) may meet the requirements of FMA with few or no modifications The standard planning process for CRS applicants is excerpted below (taken from CRS Application, FIA 154, July 1996 edition) Organize to prepare the plan Show in the plan or an attached memo If the plan was prepared under the supervision or direction of a professional planner, If a committee was involved, if so, what community departments were represented, and/or If your community's governing board formally created or recognized the planning process or the committee b Involve the public At a mimmum, you must show in the plan or an attached memo when a meeting to obtain public input on the draft plan was held Also show If public meetings or other public information activities were implemented to explain the planning process and encourage input, and/or If the planning committee noted under a 2 and 3 above included representatives of the public, if so, how many meetings were held and what topics were discussed Coordinate with other agencies Show in the plan or an attached memo how the planning process coordinated with neighboring communities and local, regional, State, and Federal agencies that implement floodplain management activities At a minimum, you must show that the draft action plan was sent to the other agencies for their comments Also show If the other agencies were asked for their input at the beginning of the planning process, 2 If meetings were held with representatives of the other agencies, and/or If the plan includes a review of the community's needs, goals, and plans for the area Assess the hazard The plan must include a map and description of the known flood hazards and/or repetitive loss areas, and a discussion of past floods Also show if the plan includes map and description of other natural hazards e Assess the problem The plan must discuss the number and types of buildings subject to the hazards identified in the hazard assessment Also show if the plan 1 Describes the impact of flooding on buildings, infrastructure, and public health and safety, 2 Describes the need and procedures for warning and evacuating residents and visitors, 3 Identifies critical facilities, such as hospitals, fire stations, and chemical storage companies 4 Describes areas that provide natural and beneficial functions, such as wetlands, 5 Includes a description of development trends and what the future brings for development and redevelopment in the floodplain, the watershed, and natural resource areas, and/or 6 Includes a summary of the impact of flooding on the community and its economy f Set goals The plan must include a statement of your floodplain management program's goals g Review possible activities The plan must describe those activities that were considered and note why they were or were not recommended h Draft an action plan The action plan specifies those activities appropriate to the community's resources, flood hazard, and vulnerable properties Show in the plan where it recommends who does what, when it will be done, and how it will be financed Also show if the action plan established post -disaster mitigation policies and procedures i Adopt the plan Show that the plan was adopted by your community's governing body J Implement, evaluate, and revise Show in the plan or an attached memo 1 If your community has procedures for monitoring implementation, reviewing progress, and recommending revisions to the plan in an annual evaluation report 2 If the evaluation report is prepared by the same planning committee that prepared the plan