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1998-008AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH APPLICATION CONTROL ENGINEERING FOR DEVELOPMENT OF AN EARLY STORM WARNING SYSTEM; AUTHORIZING THE EXPENDITURE THEREFORE AND PROVIDING AN EFFECTIVE DATE (PURCHASE ORDER # 82389 TO APPLICATION CONTROL ENGINEERING IN THE AMOUNT OF $31,200 00). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the C~ty Manager is hereby authorized to execute a Professional Serwces Agreement with Application Control Engineering for an early storm warning system, substantially in the form of the attached Agreement, which is made a part of th~s ordinance for all purposes. SECTION H. That the City Council hereby authorized to make the expenditures as set forth in the attached Agreement SECTION IH. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the ~ ~ ~-~ day of ~~/~ ,1998 ATTEST. JENNIFER WALTERS, CITY SECRETARY APII~OVED AS TO LEGAL FORM. HERBERT L. PROUTY, CITY ATTORNEY PO 823~ROF ORD PROFESSIONAL SERVICES AGREEMENT FOR EARLY STORM WARNING SYSTEM STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT ~s made and entered into as of the 20 day of JANUARY , 19 98 , by and between the City of Denton, Texas, a Texas mumc~pal corporation, with its principal office at 215 East McKlnney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Application Control Engineering, with Its corporate 9ffice at 11300 North Central Expressway, State 602, Dallas, Texas 75243, hereinafter called "CONSULTANT," acting hereto, by and through their duly authorized representatives 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 w~th the Project as stated in the sections to follow, with diligence and in accordance w~th the highest professional standards customarily obtmned for such services in the State of Texas The professional servmes set out herein are in connection with the following described project The Project shall include, without hm~tation, Early Storm Warning System Design and Implementation ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A TO perform all those servmas set forth in CONSULTANT's December 1, 1997 letter, which proposal ~s attached hereto and made a part hereof as Exhibit "A" as if written word for word here~n B CONSULTANT shall perform all those services set forth in Individual task orders which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements If there ~s any conflict between the terms of this Agreement and the exlublts 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 PROFESSIONAL SERVICES AGREEMENT- APPLICATION CONTROL ENGINEERING Page I of 10 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 w~th the Texas Natural Resource Conservation Commxsslon, U S Environmental Protection Agency, or other regulatory agencies The CONSULTANT will assist OWNER's personnel on an as- needed bas~s xn preparing compliance schedules, progress reports, and providing general technical support for the OWNER's comphance efforts B Assisting OWNER or contractor in the defense or prosecution of litigation in connection w~th or in addition to those services contemplated by this Agreement Such services, if any, shall be furmshed by CONSULTANT on a fee basis negotiated by the respective part,es outside of and in addition to th~s Agreement C Samphng, testmg, or analys~s beyond that specifically included m Basic Services D Prcpanng cop~es of computer reded drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system E Preparing applications and supporting documents for government grants, loans, or planmng advances and provIdmg data for detailed appllcat~ons F Appearing before regulatory agencies or courts as an expert witness in any litigation w~th third part,es or condemnation proceedings arising from the development or construction of the Project, mcludmg the preparation of engineering data and reports for assistance to thc OWNER G Provld~ng geotechnical investigations for the site, including soil borings, related analyses, and recommendations .ARTICLE IV PERIOD OF SERVICE Th:s 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 ~n force for the period which may reasonably be required for the completion of the Project, :n¢luding Additmnal Services, if any, and any required extensions approved by the OWNER Th:s Agreement may be sooner term:nated in accordance with the provisions hereof Time ~s of thc essence In th~s Agreement The CONSULTANT shall make all reasonable efforts to complete the serwces set forth herein as expeditmusly as possible and to meet the schedule estabhshed by the OWNER, acting through its C~ty Manager or his designee PROFESSIONAL SERVICES AGREEMENT- APPLICATION CONTROL ENGINEERING Page 2 of 10 ARTICLE V COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" IS defined as expenses incurred by the CONSULTANT in employment of others m outside firms for services 2 "Direct Non-Labor Expense" is defined as that expense for any assignment recurred by the CONSULTANT for supphes, transportation and equipment, travel, communications, subsistence, and lodging away from home, and s~mllar incidental expenses in eounectlon with that assigmnent 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 detml at an hourly rate shown in Exhibit "A" 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 Thirty-one Thousand Two Hundred Dollars and No Cents ($31,200 00) Partial payments to the CONSULTANT will be made on the basis of detmled 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 t~me 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 whmh is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted ~n compliance with the terms of this Agreement The OWNER shall not be reqmred to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement It ~s 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 hsted in Article III "Additional Services," w~thout obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES For adthtlonal 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 "A" 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 PROFESSIONAL SERVICES AGREEMENT- APPLICATION CONTROL ENGINEERING Page 3 of 10 D PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses w~th~n s~xty (60) days after receipt of the CONSULTANT's unthsputed statement thereof, the amounts due the CONSULTANT wall be increased by the rate of one percent (1%) per month from the smd sixtieth (60th) day, and, in addition, the CONSULTANT may, after g~wng seven (7) days' written notice to the OWNER, suspend services under th~s Agreement until the CONSULTANT has been paid ~n full all amounts due for services, expenses, and charges, prowded, however, nothing herein shall reqmre the OWNER to pay the late charge of one percent (1%) set forth here~n ~f the OWNER reasonably determmes that the work is unsatisfactory, tn accordance w~th this Article V, "Compensation" ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT wall exermse reasonable care and due diligence m dtscovenng and promptly reporting to the OWNER any defects or deficiencies ~n the work of the CONSULTANT or any subcontractors or subconsultants ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furmshed by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to th~s Agreement are instruments of servme, and shall become the property of the OWNER upon the termination of this Agreement The CONSULTANT ~s entitled to retmn cop~es of all such documents The documents prepared and furmshed by the CONSULTANT are ~ntended only to be apphcable to this Project, and OWNER's use of these documents ~n other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the mformat~on or matermls developed pursuant to th~s Agreement m another project or for other purposes than spemfied herein, CONSULTANT ~s released from any and all hablhty relating to their use in that project ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall prowde servmes 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 ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall mdemmfy and save and hold harmless the OWNER and ~ts officers, agents, and employees from and agmnst any and all habthty, claims, demands, damages, losses, and expenses, ~nclud~ng, but not hm~ted to court costs and reasonable attorney fees ~ncurred by the OWNER, and ~ncludlng, w~thout limitation, damages for boddy and personal ~njury, death and property damage, resulting from the neghgent acts or omtssmns of the PROI~ESSIONAL SERVICES AGREEMENT- APPLICATION CON rROL ENGINEERING Page 4 of 10 CONSULTANT or 1ts officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement Nothing an this Agreement shall be construed to create a habfl~ty to any person who is not a party to this Agreement, and nothing hereto shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or lmgat~on filed by anyone not a party to this Agreement, including the defense of governmental ~mmumty, 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 hcensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating w~th 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 hmlts of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate B Automobile Lmbthty Insurance with bodily ~njury hmlts of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage hm~ts of not less than $100,000 for each acmdent C Worker's Compensation Insurance in accordance w~th statutory reqmrements, and Employers' Liability Insurance with hmlts of not less than $100,000 for each accident D Professional Llabthty Insurance with limits of not less than $1,000,000 annual aggregate The CONSULTANT shall furnish ~nsurance cemficates or ~nsurance pobc~es at the OWNER's request to ewdence such coverages The insurance pohc~es shall name the OWNER as an additional insured on all such pohc~es, and shall contain a prows~on that such ~nsurance shall not be canceled or modified w~thout thirty (30) days' prior written not,ce to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute pohmes furnishing the same coverage ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any d~sputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resoluUon, such as mediation No arbitration or alternate dispute resolution arising out of or relating to th~s Agreement, ~nvolvlng one party's disagreement, may include the other party to the d~sagreement w~thout the other's approval PROFESSIONAL SERVICES AGREEMENT- APPLICATION CONTROL ENGINEERING Page 5 of 10 ARTICLE XII TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, e~ther party may terminate by glwng thirty (30) days' advance written not~ce to the other party B Ttus Agreement may be terminated in whole or in part in the event of e~ther party substantmlly f~uhng to fulfill ~ts obhgatlons under this Agreement No such termination will be affected unless the other party ~s given (1) written notice (delivered by certified mini, 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 ~s terminated prior to completion of the services to be provided hereunder, CONSULTANT shall ~mmed~ately 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 mcun'ed prior to the date of termination, m accordance w~th Article V "Compensation" Should the OWNER subsequently contract w~th a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate m providing information The CONSULTANT shall turn over all documents prepared or furmshed by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may mmntam cop~es of such documents for ~ts use ARTICLE XllI RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsablhty and habthty of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their destgns or other work, nor shall such approval be deemed to be an assumption of such responslbthty by the OWNER, for any defect m the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants ARTICLE XIV NOTICES All notices, communications, and reports reqmred or permitted under this Agreement shall be personally dehvered or mmled to the respective parties by depositing same m the United States mini to the address shown below, certified mall, return receipt requested, unless otherwise specified, hereto Mmled notices shall be deemed communicated as of three (3) days' mathng PROFESSIONAL SERVICES AGREEMENT- APPLICATION CONTROL ENG1NI~ERING Page 6 of 10 To CONSULTANT To OWNER Ron Wise City of Denton Application Control Engineering ATTN Ted Benavldes, 11300 North Central Expressway, Suite 602 Title City Manager P O Box 497562 215 East McKlnney Garland, Texas 75049-7562 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' mmhng ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of Ten pages and One 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 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 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 KVII 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 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 PROFESSIONAL SERVICES AGREEMENT- APPLICATION CONTROL ENGINEERING Page 7 of 10 .ARTICLE XIX PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the servmes reqmred under th~s 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 ~nterest or potentml confhct of mterest that may arise during the term of th~s Agreement B All serwces reqmred hereunder wall be performed by the CONSULTANT or under ~ts supervtsmn All personnel engaged ~n work shall be quahfied, and shall be authorized and pernntted under state and local laws to perform such servmes ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any ~nterest ~n th~s Agreement, and shall not transfer any ~nterest ~n th~s Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the OWNER ARTICLE XXI MODIFICATION No wmver or modification of thts Agreement or of any covenant, condtt~on, or hmttat~on here~n contmned shall be vahd unless tn wrmng and duly executed by the party to be charged therewith, and no ewdence of any wmver or modfficat~on shall be offered or received ~n ewdence ~n any proceeding arising between the part,es hereto out of or affecting th~s Agreement, or the rights or obhgattons of the parttes hereunder, and unless such wmver or mod~ficatmn ~s ~n writing and duly executed, and the parttes further agree that the prows~ons ofthts sectmn w~ll not be wmved unless as set forth here~n ARTICLE XXII MISCELLANEOUS A The followtng exhibits are attached to and made a part ofth~s Agreement Exhibit A, December 1, 1997 letter B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under th~s Agreement, have access to and the right to examine any dtrectly pertinent books, documents, papers, and records of the CONSULTANT ~nvolvtng transactions relating to th~s Agreement CONSULTANT agrees that OWNER shall have access dunng normal working hours to all necessary CONSULTANT facd~ttes and shall be prowded adequate and appropriate working space ~n order to conduct audits m comphance wath th~s section OWNER shall g~ve CONSULTANT reasonable advance nottce of ~ntended audits PROFESSIONAL SERVICES AGREEMENT- APPLICATION CON 1 ROL ENGINEERING Page 8 of 10 C Venue of any stat or cause of action under th~s Agreement shall he exclusively ~n Denton County, Texas Th~s Agreement shall be construed an accordance wtth the laws of the State of Texas D For the purpose of thas Agreement, the key persons who wall perform most of the work hereunder shall be Ron W~se However, nothing herren shall hmlt CONSULTANT from using other qualified and competent members of ats firm to perform the servmes reqmred herein E CONSULTANT shall commence, carry on, and complete any and all projects wath all applicable d~spatch, ~n a sound, econommal, and effiment manner and m accordance with the provisions hereof In accomphshlng the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work ~nvolved ~s properly coordinated with related work being carried on by the OWNER F The OWNER shall assist the CONSULTANT by plamng at the CONSULTANT's disposal all available information pertinent to the ProJect, ~nclud~ng prewous reports, any other data relative to the Project, and arrangtng for the access thereto, and make all prowslons for the CONSULTANT to enter ~n or upon pubhc and private property as required for the CONSULTANT to perform services under this Agreement G The captions of this Agreement are for mformat~onal purposes only, and shall not m any way affect the substantive terms or conditions ofth~s Agreement IN' WITNESS HEREOF, the Caty of Denton, Texas has caused th~s Agreement to be executed by its duly authorized City Manager, and CONSULTA~T~ has execute~t this Agreement throu ~ ltS duly authorized undersigned officer on th~s the ,~Offt/z day of (.~ , CITY OF DENTON, TEXAS ~ TED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY PROFESSIONAL SERVICES AGREEMENT- APPLICATION CONTROL ENGINFLRING Page 9 of 10 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY APPLICATION CONTROL ENGINEERING RON WISE PROFESSIONAL SERVICES AGREEMENT - APPLICATION CONTROL ENGINEERING Page 10 of 10