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