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1998-040AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL SERVICES FOR WASTEWATER COLLECTION SYSTEM MASTER PLANNING AND ENGINEERING SERVICES RELATED TO COMPREHENSIVE PLAN DEVELOPMENT AND IMPACT FEE IMPLEMENTATION WITH APPLIED GEOGRAPHIC TECHNOLOGIES, INC, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the C~ty Council desires to engage Apphed Geographic Technologies, Inc for a not-to-exceed amount of two hundred sixty-five thousand e~ght hundred mnety dollars ($265,890 00) to promde professional services for wastewater collection master planmng and eng~neenng services related to comprehensive plan development and ~mpact fee ~mplementatlon, and WHEREAS, the C~ty Councd deems tt ~n the pubhc ~nterest to enter ~nto a Professional Servmes Agreement w~th Apphed Geographic Technologies, Inc for the above-mentioned serv- ices, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the C~ty Manager ~s hereby authorized to execute a Professional Servmes Agreement w~th Apphed Geographxc Technologies, Inc, substantmlly ~n the form of the attached Agreement whmh ~s incorporated here~n for all purposes SECTION II. That the C~ty Manager is authorized to make the expenditure of funds as prowded m the attached Professional Servxces Agreement SECTION III. That th~s orchnance shall become effective ~mmed~ately upon ~ts passage and approval PASSED AND APPROVED thls the /7'~''~ dayof ~b~1998 JA~ ATTEST[ JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY Page 2 PROFESSIONAL SERVICES AGREEMENT FOR WASTEWATER MASTER PLAN AND ENGINEERING SERVICES RELATED TO COMPREHENSIVE PLAN DEVELOPMENT AND IMPACT FEE IMPLEMENTATION STATE OF TEXAS § co ,¥orr EmON § sTHIS AGREEMENT is made and entered into as of the //~__r~ day of 19 ~ , by and between the City of Denton, Texas, a Texas municipal pnnclpal office at 215 East Mclrdnney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Applied Geographic Technologies, Inc, with its corporate, office at 1412 West Magnoha Avenue, Fort Worth, Texas 76104, hereinafter called "CONSULTANT," acting herein, by and through their duly anthonzed representatives WITNESSETH, that m consideration of the covenants and agreements heroin contained, the parties hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the ProJect as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtmned for such services in the State of Texas The professional sermces set out herein are in connection with the following described project The ProJect shall include, without hmltatlon, preparation of a Wastewater Master Plan and Engtneenng Services Related To Comprehensive Plan Development and Impact Fee Implementation ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A The CONSULTANT shall perform all englneenng services as necessary and as described in the OWNER's Request for Proposals No 2140, winch is attached hereto and made a pgrt hereof as Exhibit "A" as if written word for word herein Land Use Planning and Forecasting for the Comprehensive Plan services included in the RFP No 2140 are not included m this Agreement Such services shall include, without limitation, the development of a comprehensive wastewater collection system master plan, which will include flow projections and capital improvement planning for the years 2008 and 2020, the development of an impact fee ordinance, which can be used to enact impact fees for wastewater faclhtles if the OWNER decides to request this as a special service, the preparation of a phased 10-year capital improvements plan to meet the OWNER's projected water demands through the year 2020, the preparation of a memorandum and City Council briefing for rewewlng the feaslbthty of the OWNER enacting impact fees for roadway and dr~unage fatalities, and the CONSULTANT's attendance at public meetings as necessary, including at least three meetings of the City Connml and for meetings of the advisory committee B To perform all those services set forth in CONSULTANT's proposal entitled City of Denton RFP No 2140, Scope of Work, dated January 27, 1998, which proposal ~s attached hereto and made a part hereof as Exhibit "B" as if written word for word herein C CONSULTANT shall perform all those services set forth in individual task orders which are attached to this Agreement as Exhibit "B" and made a part hereof for all purposes as separate agreements D If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exlublts or task orders ARTICLE III SPECIAL SERVICES Specml services to be performed by the CONSULTANT, ~f authorized by the OWNER, which are not included in the above-described Basic Services, are described as follows A Dunng the course of the ProJect, as requested by OWNER, the CONSULTANT will be avmlable to accompany OWNER's personnel when meeting with the Texas Natural Resource Conservation Cornmlsslon, U S Environmental Protection Agency, or other regulatory agencies The CONSULTANT will assist OWNER's personnel on an as- needed basis in prepanng compliance schedules, progress reports, and providing general teehmcal 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 outside of and in addition to this Agreement C Sampling, testing, or analysis beyond that specifically included in Basic Services D Prepanng applications and supporting documents for government grants, loans, or planning advances and providing data for detmled applications E Appeanng before regulatory agencies or courts as an expert witness in any htigatlon with third parties or condemnation proceedings arising from the development or construction of the Project, ~ncludmg the preparation of englneenng data and reports for assistance to the OWNER F Prowdmg geotechmcal investigations for the site, including soil bonngs, related analyses, and reeommendatmns G Provldmg additional copies of the Drati and/or Final reports H Making addmonal presentations I Prepanng the impact fee ordinance ARTICLE IV PERIOD OF SERVICE Tins 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 remmn ~n fome for the period whmh may reasonably be required for the completion of the Project, including Additional Services, if any, and any reqmred extensions approved by the OWNER The OWNER and CONSULTANT agree that the OWNER may accelerate the schedule for the completion of the work hereunder and the CONSULTANT shall, in tins event, expedite the dehvery of services hereunder at no extra charge to the OWNER Tins Agreement may be sooner termmated 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 hereto as expeditiously as possible and to meet the schedule established by the OWNER and shown m Exhibit "B", acting through ~ts City Manager or Ins designee The CONSULTANT agrees to expedite th~s schedule w~thout additional compensation ~f the OWNER requests in writing to do so 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 In the nature of professional eng~neenng 2 "D~rect Non-Labor Expense" ~s defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and eqmpment, travel, commumcatlons, subsistence, and lodging away from home, and s~mflar incidental expenses ~n connection with that assignment B BILLING AND PAYMENT For and ~n consideration of the professional services to be performed by the CONSULTANT hereto, the OWNER agrees to pay, based on the lump sums shown in Exhlint "C" which is attached hereto and made a part of tins Agreement as ~f written word for word hereto, a total fee, ~ncludtng retmbursement for dtrect non- labor expenses not to exceed $250,890 00 For Special Servmes if authorized tn writing and as described tn Exhxblt "B" the OWNER agrees to pay based on actual costs accordtng to the cost estimate detail at an hourly rate shown m Extublt "C" and made a part of thts Agreement as if written word for word herein, mclurhng reimbursement for dtrect non-labor expenses not to exceed $15,000 00 Partml payments to the CONSULTANT wall be made on the basts of detmled monthly statements rendered to and approved by the OWNER through tts Ctty Manager or his desxgnee, however, under no cxrcumstances shall any monthly statement for servtces exceed the value of the work performed at the ttme a statement is rendered The OWNER may w~thhold the final five percent (5%) of the contract amount untd completton of the ProJect Nothing contained in tlus Article shall reqmre the OWNER to pay for any work which ts unsatisfactory, as reasonably determined by the City Manager or h~s destgnee, or which is not submitted In comphance w~th the terms ofthts Agreement The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT Is tn 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 adcht~onal payments by the OWNER for any charge, expense, or reimbursement above the maxxmum not to exceed fee as stated, w~thout first having obtained written authorization from the OWNER The CONSULTANT shall not proceed to perform the servmes hsted tn Article III "Additional Servmes," w~thout obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES NOT DESCRIBED IN EXHIBITS "A" OR "B" For addxt~onal servmes anthonzed tn writing by the OWNER in Article III, the CONSULTANT shall be prod based on the Schedule of Charges at an hourly rate shown tn Exhtbtt "C" Payments for add~ttonal servmes shall be due and payable upon submission by the CONSULTANT, and shall be in accordance w~th subsection B hereof S~ataments shall not be submitted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses wtthm stxty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT w~ll be ~ncreased by the rate of one percent (1%) per month from the said stxtteth (60th) day, and, in addatlon, the CONSULTANT may, after giving seven (7) days' written not, ce to the OWNER, suspend services under thts Agreement unttl the CONSULTANT has been ptud m full all amounts due for servtces, expenses, and charges, provided, however, nothing herein shall reqmre the OWNER to pay the late charge of one percent (1%) set forth heremn tf the OWNER reasonably determtnes that the work is unsattsfactory, tn accordance with this Article V, "Compensation" ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT wall exercise reasonable care and due d~hgence ~n d~scovenng and promptly reporting to the OWNER any defects or defic~enmes ~n the work of the CONSULTANT or any subcontractors or subeonsultants ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or fumxshed 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 th~s Agreement The CONSULTANT xs entitled to retain copxes of all such documents The computer model dehvered by CONSULTANT shall become the OWNER's property, and the OWNER shall be able to utihze the computer model not only on tl~s project, but on similar types of analyses and sxmflar projects Wxth the exceptmn of the computer model, the documents prepared and fumxshed by the CONSULTANT are Intended only to be apphcable to thxs Project, and OWNER's use of these documents m other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the ~nformat~on or materials developed pursuant to this Agreement m another project or for other purposes than specffied herein, CONSULTANT xs released from any and all habdlty relating to their use m that project ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall prowde services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or clmm 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 habfi~ty, clmms, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees recurred by the OWNER, and Including, without llm~tatlon, damages for bodily and personal ~njury, death and property damage, resulting from the neghgent acts or omissions of the CONSULTANT or ~ts officers, shareholders, agents, or employees ~n the execution, operation, or performance of this Agreement Nothing ~n this Agreement shall be construed to create a hablhty to any person who is not a party to th~s Agreement, and nothing hereto shall wmve any of the parties' defenses, both at law or eqmty, to any claim, cause of action, or htlgat~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 Dunng the performance of the services under this Agreement, CONSULTANT shall mmntann the following insurance w~th an insurance company licensed to do business ~n 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 Lmbfl~ty Insurance w~th bodily ~njury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage hm~ts of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate B Automobile Lmblhty Insurance w~th bodily injury hm~ts 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 accident C Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Lmbdlty Insurance with limits of not less than $100,000 for each accident D Profeaslonal Liability Insurance with limits of not less than $1,000,000 annual aggregate E The CONSULTANT shall furnish insurance certificates or insurance pohcles at the OWNER's request to credence such coverages The insurance policies shall name the OWNER as an additional insured on all such pohcles, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notme 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 part,es may agree to settle any d~sputes under this Agreement by submitting the dispute to arbitration or other means of alternate d~spute resolution, such as mediation No arbitration or alternate dispute resolution arising out of or relating to th~s Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval ARTICLE XII TERMINATION OF AGREEMENT A Notwithstanding any other provision of th~s Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party B This Agreement may be terminated in whole or ~n part ~n the event of either party substantially fiuhng to fulfill ~ts obhgatlons under th~s Agreement No such termination will be affected unless the other party ~s given (1) written not,ce (delivered by certified mall, 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 oppo~unlty for consultation with the terminating party prior to termination C If the Agreement is terminated prior to completion of thc services to be prowdcd hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OVv~R w~th~n 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 recurred prior to the date of termination, m accordance w~th Article V "Compensation' Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate m prowdmg reformation The CONSULTANT shall turn over all documents prepared or fumlshed by CONSULTANT pursuant to this Agreement to the OYVi~R on or before the date of termination, but may mamtmn cop~es of such documents for ~ts use ARTICLE XIH RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and habfl~ty of the CONSULTANT, ~ts employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work, nor shall such approval be deemed to be an assumption of such responslblhty 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 not~¢es, commumcat~ons, and reports required or permitted under this Agreement shall be personally dehvered or mmled to the respective part, es by deposmng same ~n the Umted States mml to the address shown below, certified mall, return receipt requested, unless otherwise specified hereto Marled not,ecs shall be deemed communicated as of three (3) days' marling To CONSULTANT To OWNER Apphed Geographic Teehnologles, Inc C~ty of Denton Thomas C Davies, P E Howard Mart~n, Jr President Assistant C~ty Manager of Utfllt~es 1412 West Magnoha Avenue 215 East McKtnney Fort Worth, Texas 76104 Demon, Texas 76201 All notmes shall be deemed effective upon recetpt by the party to whom such notme ~s g~ven, or w~thxn three (3) days' madmg ENTIRE AGREEMENT Th~s Agreement, consisting of 11 pages and 3 exhxb~ts, constxtutes the complete and final expression of the agreement of the part,es, and ~s intended as a complete and exclusxve statement of the terms of their agreements, and supersedes all prior contemporaneous offers, pronnses, representations, negotmtxons, chscusslons, commumcat~ons, and agreements whmh may have been made m connection wxth the subject matter hereof ARTICLE XVI SEVERABILITY If any prowsmn of th~s Agreement ~s found or deemed by a court of competent jurisdiction to be ~nval~d or unenforceable, ~t shall be considered severable from the remainder of th~s Agreement and shall not cause the remainder to be mvahd or unenforceable In such event, thc part,es shall reform th~s Agreement to replace such stricken prowsmn with a vahd and enforceable provlsmn which comes as close as possible to expressing thc retention of the stricken prOVISIOn COMPLIANCE WITH LAWS The CONSULTANT shall comply w~th all federal, state, and local laws, rules, regulations, and ordinances apphcable to the work covered hereunder as they may now read or hereinafter be amended ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the servmes reqmred hereunder, the CONSULTANT shall not dmcnmmate agmnst any person on the bas~s of race, color, rehgxon, sex, national origin or ancestry, age, or physmal handmap ARTICLE XIX PERSONNEL A The CONSULTANT represents that xt has or wdl secure, at ~ts own expense, all personnel reqmred to perform all the servmes reqmred under th~s Agreement Such personnel shall not be employees or officers of, or have any contractual relations w~th the OWNER CONSULTANT shall ~nform the OWNER of any confi~ct of interest or potentml conflmt of ~nterest that may arise dunng the term of thxs Agreement B All services required hereunder will be performed by the CONSULTANT or under ~ts 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 ~nterest m this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novatmn, or otherwme) without the prior written consent of the OWNER ARTICLE XXI MODIFICATION No waiver or modification of tlus Agreement or of any covenant, condition, or hmltatlon hereto contained shall be valid unless m writing and duly executed by the par~y to be charged therewith, and no evidence of any waiver or modification shall bc offered or received in evidence m any proceechng arising between the parties hereto out of or affecting tlus Agreement, or thc rights or obhgatlons of the parties hereunder, and unless such waiver or modification is in writing and duly executed, and the parties further agree that the provisions of th~s section will not be waived unless as set forth hcrcm ARTICLE XXII MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement Exhibit "A" - City of Denton RFP No 2140 Exhibit "B" - City of Denton RFP No 2140, Scope of Work, dated Jan 27, 1998 Extublt "C" - Schedule of Charges B CONSULTANT agrees that OWNER shall, untd thc cxplratlun of three (3) years after the final payment under this Agreement, have access to and thc 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 dunng normal workang hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits m compliance with this section OWNER shall give CONSULTANT rcasunablc advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall he exclusively in Denton County, Texas This Agreement shall be construed m accordance with thc laws of thc State of Texas D For the purpose of this Agreement, the key persons who wall perform most of the work hereunder shall be Mr Tom Davies, P E, Premdent, Mr Preston Dillard, P E, Project Manager, and Mr Brad Pierce, E I T, Project Engineer However, nothing herein shall hmlt CONSULTANT from using other qualified and competent members of its firm to pot'form the services required herem E CONSULTANT shall commence, carry on, and complete any and all projects with all appheable dispatch, in a sound, economical, and efficient manner and In accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being camed on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all avmlable information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon pubhc and private property as required for the CONSULTANT to perform services under this Agreement G The eaptiuns 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 CONSULTAI>I, ~ has execute[ this Agreement through ItS duly authorized undersigned officer on this the /,~t~_~ day of~, 19__~ CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY CONSULTANT APPLIED GEOGRAPHIC TECHNOLOGIES, ~ Tho~ma~ C D~v~es, P E President ~T~SS