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