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HomeMy WebLinkAbout2001-050ORDINANCE NO AaY--I�6O AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH ETTL ENGINEERS & CONSULTANTS INC FOR HYDROGEOLOGICAL CONSULTING AND ANALYTICAL SERVICES PERTAINING TO THE CITY OF DENTON LANDFILL (MSW PERMIT NO 1590A), AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT (PO 12551-ETTL ENGINEERS & CONSULTANTS, INC IN THE AMOUNT OF $43,202 37) WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services, and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I The City Manager is hereby authorized to enter into a professional service contract with the Provider, ETTL Engineers & Consultants, Inc is to provide Hydrogeological Consulting and Analytical Services, a copy of which is attached hereto and incorporated by reference herein SECTION II The City Manager is authorized to expend funds as required by the attached contract SECTION III The findings in the preamble of this ordinance are incorporated herein by reference SECTION IV This ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the -k // day of 12001 EULINE BROCK, MAYOR ATTEST JENNIFER WALnnTERS, C�4TY SECRETARY BY�4 Uti.W APPROVED AS LEGAL F HERBERTLOkbUTY,C ATTORNEY BY v i - v PO 12551 -,PROFESSION RVICES FOR ETTL ENGINEERING CONSULTANTS ORDINANCE 2001 STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR HYDROGEOLOGICAL CONSULTING AND ANALYTICAL SERVICES PERTAINING TO THE CITY OF DENTON LANDFILL THIS AGREEMENT is made and entered into as of the Id M day of 2001, by and between the City of Denton, Texas, a Texas Municipal Corporation, with its pnilcipal offices at 215 East McKinney Street, Denton, Texas 76201 (hereinafter "OWNER'), and ETTL Engineers & Consultants, Inc , a Corporation, with its corporate office at 1717 East Erwin Street, Tyler, Texas 75702, (hereinafter "CONSULTANT"), the parties acting herein by and through their respective duly-authonzed representatives and officers WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows ARTICLE T 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 Articles 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 forth herein are in connection with the following described project (the "Project") Providing professional hydrogeological consulting and analytical services pertaining to the City of Denton Landfill (MSW Permit No 1590A) for the twelve-month period beginning on October 1, 2000 and ending on September 30, 2001 ETTL shall serve as the OWNER's consultant relative to all landfill ground -water monitoring, data review, reporting (including, without limitation, two semi-annual detection ground -water monitoring events), and general geological and hydrogeological consulting services, where needed on the Project ARTTCLE. TT SCOPE OF SERVICES The CONSULTANT shall perform the following Basic Services in a professional manner A To perform all those services as are set forth in the CONSULTANT's final, revised Proposal to the City of Denton, contained in that certain three (3) page letter from Les A Jeske, Operations Manager of Hydrogeological Services of CONSULTANT to David Dugger, Landfill Superintendent of OWNER, dated January 10, 2001, which letter is attached hereto as Exhibit "A" and is incorporated herewith by reference B If there is any conflict that arises between the terms of this Agreement and Exhibits "A" and 9 rOur Uoomn=ta nnacWMBTTL Bngmunre LentlNl PSA 2M tool oN don Page I of 10 "B" attached to this Agreement, then the terms and conditions of this Agreement shall control over the terms and conditions of the attached Exhibits ARTICLE ITT ADDITIONAL SERVICES Any Additional Services to be performed by CONSULTANT, if authorized by OWNER, which are not included as Basic Services in the above -described Scope of Services, set forth in Article II above, shall be later agreed -upon by OWNER and CONSULTANT, who shall determine, in writing, the scope of such Additional Services, the amount of compensation for such additional services, and other essential terms pertaining to the provision of such Additional Services by CONSULTANT A partial listing of possible Additional Services and the rates therefor, are set forth on page two (2) of the Probable Cost Estimate (September 5, 2000) which is attached hereto as Exhibit "B" and incorporated by reference herewith ARTICLE IV PERIOD OF SERVICE The parties hereby ratify this Agreement, and the parties agree that this Agreement shall be retroactively effective as of October 1, 2000, upon its execution by OWNER and CONSULTANT, and upon the issuance of a notice to proceed by the OWNER This Agreement 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, or until September 30, 2001, whichever event shall first occur This Agreement may be sooner terminated in accordance with the provisions hereof TIME IS OF THE ESSENCE IN THE PERFORMANCE AND COMPLETION OF THIS AGREEMENT CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule(s) reasonably established by the OWNER, acting through its Director of Solid Waste or his designee ARTICLE. V COMPENSATION A COMPENSATION TERMS 1 "Direct Non -Labor Expense" is defined as that expense [other than "per diem" expense], based upon actual cost plus fifteen (15%) percent, for any out-of-pocket expense reasonably incurred by the CONSULTANT related to its performance of this Agreement, for long distance telephone charges, telecopy charges, messenger services, printing and reproduction expenses, out-of-pocket expenses for purchased computer time, prudently incurred travel expenses related to the work on the Project, and similar incidental expenses incurred in connection with the Project B BILLING AND PAYMENT For and in consideration of the professional services to be performed by CONSULTANT herein, OWNER agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic Services tasks set forth in the Scope of Services as shown in Article II above, as s �Oor cummu\C meta\=HnL 9nsinar umnn rsn iao Moron Page 2 of 10 follows 1 CONSULTANT shall perform its work on this Project on an hourly fee basis, plus reimbursement for all reasonably incurred out-of-pocket expenses, billed monthly, or for longer periods of time CONSULTANT shall bill from time sheets, in minimum '/4 hour increments of time, at the rates and subject to the terms set forth in CONSULTANT's "Probable Cost Estimate" which is contained in Exhibit "B" heretofore referred to in Article III OWNER shall pay to CONSULTANT for its professional services performed, and for its out -of pocket expenses incurred in the Project, a total amount not to exceed $43,202 37 2 Partial payments to the CONSULTANT will be made monthly based on the percent of actual completion of the Basic Services, rendered to and approved by the OWNER through its Director of Solid Waste 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 ten (10%) percent of the above not -to -exceed amount until satisfactory completion of the Project by CONSULTANT 3 Nothing contained in this Article shall require the OWNER to pay for any work that is not submitted in compliance with the terms of this Agreement OWNER shall not be required to make any payments to CONSULTANT at any time when CONSULTANT is in default under this Agreement 4 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 not -to -exceed amount as stated heremabove, without first having obtained the prior written authorization of the OWNER CONSULTANT shall not proceed to perform any services to be later provided for under Article III "Additional Services" without first obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES For Additional Services authorized in writing by the OWNER in Article III heremabove, CONSULTANT shall be paid based on a to -be -agreed - upon Schedule of Charges Payments for Additional Services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with Exhibit `B" attached hereto, and Article V B heremabove Statements for Basic Services and any Additional Services shall be submitted to OWNER no more frequently than once 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 and after the said sixtieth (60th) day, and in addition, thereafter, the CONSULTANT may, after giving ten (10) days written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER, for services, expenses and charges Provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set forth herein, if the OWNER reasonably determines that the CONSULTANT's work is not submitted in accordance with the terms of this Agreement, in accordance with Article V B of this Agreement, and OWNER has promptly notified 5\0., Num ,m nWU. WOMETTL Engmaen L.W11 PSA 2M2W)oN&o Page 3 of 10 CONSULTANT of that fact in writing ARTTCLE VT 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 CONSULTANT ARTICTI VTT OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT 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 fiumshed 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 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 VTTT 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 ARTTCT F TX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys 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, or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, attorneys and 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 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 S I ur OocnmonWCon11nw STTL PFl&ne1+Lentl1111 PSA 2.2.I ord doe Pape 4 of 10 Texas by the State Insurance Board or any successor agency, that has a rating with A M Best Rate Carriers of at least an "A-" or above A Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 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 B Automobile Liability Insurance with bodily injury limits of not less than $1,000,000 for each person and not less than $1,000,000 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 Employer's Liability Insurance with limits of not less than $100,000 for each accident D Professional Liability Insurance or appropriate Errors & Omissions Insurance with limits of not less than $1,000,000 annual aggregate E 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 to the extent that is legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (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 of coverage, deliver copies of any such substitute policies, furnishing at least the same policy limits and coverage, to OWNER ARTICLE XT ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties will make efforts to settle any disputes arising under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation However, no arbitration or other form of 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 ARTTCI E XIT TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty (30) days advance written notice to the other party B This Agreement may alternatively 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 effected 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 nonperformance or other reason(s), 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 S Qur Ooounienl ConWCIS\ BTTL P91mern Lantl011 PSA 30M 20010k doo Page 5 of 10 C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services upon receipt of the written notice of termination from OWNER, and shall render a final bill for services to the OWNER within twenty (20) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article V of this Agreement Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and to the new consultant If applicable, OWNER shall allow CONSULTANT a reasonable time to transition and to turn over the Project to a new consultant 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 files ARTICI .F. XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, or agents, for the accuracy and competency of their work performed pursuant to this Agreement, nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the work prepared by the CONSULTANT, its principals, officers, employees, and agents ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered to, or telecopied to, or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein To CONSULTANT To OWNER ETTL Engineers & Consultants, Inc City of Denton, Texas Les A Jeske, Mgr of Hydrogeological Services Michael W Jez, City Manager 1717 East Erwin Street 215 East McKinney Street Tyler, Texas 75702 Denton, Texas 76201 Fax (903)595-6113 Fax (940)349-8596 All notices under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given, or three (3) days after mailing of the notice, whichever event shall first occur S IOnt Mcvinenls\CnWc OMTTL Engnlea&LO 611 PSA 2WO2WI ON"0 Page 6 of 10 ARTICLE. XV ENTIRE AGREEMENT This Agreement consisting of ten (10) pages and two (2) 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, understandings, and agreements which may have been made in connection with the subject matter of this Agreement ARTICLE. XVT SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent Iunsdiction 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 the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision ARTICLE. XVTT COMPLIANCE WITH LAWS CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended ARTICLE XVITT DISCRIMINATION PROHIBITED In performing the services required hereunder, CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap A 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, nor have any contractual relations with the OWNER CONSULTANT shall immediately inform the OWNER in writing of any conflict of interest or potential conflict of interest that CONSULTANT may discover, or which may anse during the term of this Agreement B OWNER requires that CONSULTANT carefully safeguard all documents, data, and information provided by OWNER to CONSULTANT incident to this engagement CONSULTANT recognizes that such documents, data, and information, involve sensitive, competitive issues, in some cases, confidential information, and in some cases proprietary information, and the disclosure of such information by CONSULTANT to any third party, a our ooam<mP0omn,uA0ft L EWreere Lmdall rsn noon zam om aoo Page 7 of 10 without the express written consent of OWNER, is expressly prohibited by OWNER, and would likely cause economic loss and detriment to OWNER Any such unauthorized disclosure of information by CONSULTANT shall constitute an act of default respecting this Agreement CONSULTANT represents to OWNER that it will safeguard OWNER's information and will, upon OWNER'S reasonable request, provide OWNER with CONSULTANT'S policies regarding its procedures for identifying conflicts of interest, and its procedures and safeguards which are in place which would apply to CONSULTANT'S treatment and handling of OWNER'S documents, data, and information during this engagement C All services required hereunder will be performed by CONSULTANT or under its direct supervision All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under applicable state and local laws to perform such services ARTTCIR 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 CONSULTANT shall promptly notify OWNER of any change of its name as well as of any material change in its corporate structure, its location, and/or in its operations ARTICLE XXT MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith No evidence of any waiver or modification shall be offered or received in evidence in any proceeding ansing between the parties hereto out of or affecting this Agreement, or the nghts or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed The parties further agree that the provisions of this Article will not be waived unless as herein set forth ARTTCLE XXTT MISCELLANEOUS A CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment made by OWNER 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 examinations or audits in compliance with this Article OWNER shall give CONSULTANT reasonable advance notice of all intended examinations or audits B Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton S�or OoonmeaU\Cdr UacWMBTTL En9meon LendNI PSA 2M 2001 oN doe Page 8 of 10 County, Texas This Agreement shall be governed by and construed in accordance with the laws of the State of Texas C For purposes of this Agreement, the parties agree that Les A Jeske ("Jeske") shall serve as the Project Manager of CONSULTANT respecting this engagement This Agreement has been entered into with the understanding that Jeske shall serve as the CONSULTANT's Project Manager and will be the key person serving the OWNER on this Project Any proposed changes requested by CONSULTANT, respecting Jeske serving as the Project Manager on the Project, shall be subject to the approval of the OWNER, which approval the OWNER shall not unreasonably withhold Nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the other services required herein, under its supervision or control D CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the provisions hereof hi accomplishing the Project, 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 E The OWNER shall assist and fully cooperate with 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 professional services under this Agreement OWNER and CONSULTANT agree that CONSULTANT is entitled to rely upon background information furnished to it by OWNER without the need for further inquiry or investigation into such information F 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 WHEREOF, the City of Denton, Texas has executed this Agreement in four (4) original counterparts, by and through its duly-authonzed City Manager, and CONSULTANT has executed this Agre e it by and through its duly-authonzed undersigned officer, on this the _ day of _> 2001 "CITY" CITY OF DENTON, TEXAS A Municipal Corporation a Manager 5 Our PommadOQndrocoA0o dTTL CnglneervLanONI PSA 2nn0 2001 ord doe Page 9 of 10 ATTEST JENNIFER WALTERS, CITY SECRETARY / RMOv, APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By "CONSULTANT" ETTL ENGINEERING & CONSULTANTS, INC A Corporation By c� G Cite' - in ANA&Et or /fYDRO l�t�toylCA� S~CE3 ATTEST By Secretary Sr urPowmnnuMonrocltl001CTTLEoe000nU.011PSA20W2001oNdoe Page 10 of 10