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1998-041AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL SERVICES FOR FORECASTING AND LAND USE PLANNING SERVICES RELATED TO COMPREHENSIVE PLAN DEVELOPMENT AND IMPACT FEE IMPLEMENTATION WITH RUST ENVIRONMENTAL & INFRASTRUCTURE, INC, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Couned desires to engage RUST Enwronmental & Infrastructure, Inc and for a not-to-exceed amount of two hundred twenty-four thousand s~x hundred forty-two dollars ($224,642 00) to prowde professional services for forecastang and land use planning services related to comprehensive plan development and ~mpact fee implementation, and WHEREAS, the C~ty Council deems ~t m the pubhc ~nterest to enter into a Professional Servmes Agreement w~th RUST Enwronmental & Infrastructure, Inc for the above-mentioned servmes, 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 Services Agreement with RUST Enwronmental & Infrastructure, Inc, substantially in the form of the attached Agreement which is incorporated here~n for all purposes SECTION II That the C~ty Manager ~s authorized to make the expenditure of funds as provided ~n the attached Professional Servaees Agreement SECTION HI. That th~s ordinance shall become effective ~mmedmtely upon ~ts passage and approval PASSED AND APPROVED th~s the /~'~-~.day of ~/~r~/, 1998 JAC~ ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY Page 2 PROFESSIONAL SERVICES AGREEMENT FOR FORECASTING AND LAND USE PLANNING SERVICES AND IMPACT FEE IMPLEMENTATION STATE OF TEXAS § COUNTY OF DENTON § tsTHIS AGREEMENT ,s mede and entered ,nto as of the /~ day of , 19 ~aff , by and between the Ctty of Denton, Texas~-~ T-~-xas mumc~pal pnnclpal office at 215 East McKlnney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and RUST Enwronment & Infrastructure, Inc, w~th its corporate office at 1420 West Mocklnghlrd Lane, Suite 300, Dallas, Texas 75247-4906, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representaUves WITNESSETH, that m eonslderaUon of the covenants and agreements herein contmned, the parties hereto do mutually agree as follows EMPLOYMENT OF CONSULTANT The OWNER hereby contracts w~th the CONSULTANT, as an mdependent contractor, and the CONSULTANT hereby agrees to perform the serwces herein m connection w~th the ProJect as stated an the sections to follow, with diligence and In accordance with the professional standards enstomanly obtained for such services m the State of Texas The professional services set out hOreln are m eonnectmn wath the following described project The Project shall include, without hmltat~on, performance of forecasting and land use planmng services related to comprehensive plan development and ~mpaet fee implementation ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services ~n a professional manner A The CONSULTANT shall perform all the land use planmng and forecasting for the comprehensive plan services and the Impact fee ~mplementat~on as necessary and as described ~n the OWNER's Request for Proposals No 2140, wluch ~s attached hereto and mede a part hereof as Exhibit "A" as if written word for word here~n Such services shall mulude, without limitation, the determination of the OWNER's build-out capacity, forecasting population growth, and land use demand for d~fferent density patterns, thc preparation of alternate development scenarios, allowing time for public review and comment on scenarios, and the preparation of preferred development scenario for comprehensive plan guidance, and the CONSULTANT's attendance at public meetings as necessary, ~ncludlng at least two meetings of the C~ty Council Provided, however, CONSULTANT shall not be performing any services under Exhibit "A" which are to be performed by Applied Geographic Technologies, Inc ("AGT') for wastewater collection system master planning and englneenng services related to comprehensive plan, development and impact fee implementation under a separate contract with OWNER CONSULTANT will, however, cooperate and coordinate with AGT ~n providing serwces where economies of scale can be actueved and efficiency can be promoted B TO perform all those servmes set forth in CONSULTANT's proposal entitled ProJect Approach Foreeastmg and Land Use Planning, which proposal Is attached hereto and made a part hereof as Exhibit "B" as ffwntten word for word here~n C CONSULTANT shall perform all those services set forth m individual task orders whmh are attached to th~s Agreement as Exhibit "B" and made a part hereof for all purposes as separate agreements The sermees described ~n th~s Agreement shall be performed by the CONSULTANT's staff identified in Exhtbit "B", and shall not be altered by CONSULTANT wahout OWNER's written consent D If there is any conflict between the terms of th~s Agreement and the exhibits attached to this Agreement, the terms and condlt~ons of flus Agreement will control over the terms and eondltmns of the attached exhibits or task orders ARTICLE III SPECIAL SERVICES Special services to be performed by the CONSULTANT, ~f authorized by the OWNER, wtuch 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 wah the Texas Natural Resource Conservation Commission, U S Enwronmental Protection Agency, or other regulatory agenmes The CONSULTANT will assist OWNER's personnel on an as- needed basis ~n prepanng comphance schedules, progress reports, and providing general technical support for the OWNER's comphance efforts B Assisting OWNER or contractor m the defense or prosecution of litigation In connection with or in addition to those services contemplated by this Agreement Such services, ff any, shall be furmshed by CONSULTANT on a fee basis negotiated by the respective part, es outside of and m addition to this Agreement C Samphng, testing, or analysis beyond that specffically Included In Basra Services D Preparing applications and supporting documents for government grants, loans, or planmng advances and providing data for detailed applications Page 2 E Appeanng before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development or construction of the Project, including the preparation of engmeenng data and reports for assistance to the OWNER F Promdmg geotechmcal mvestigat~ons for the site, including sod bonngs, related analyses, and recommendations G Providing additional copies of the Draft and/or Final reports H Makang additional presentations PERIOD OF SERVICE This 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 m force for the period which may reasonably be required for the completion of the mcludmg Add~tional Serwces, if any, and any required extensions approved by the The OWNER and CONSULTANT. agre.e.!hat~e~o?~ ~W~ax~RTm~.Yl, OWNER schedule for the eompienon ox expedite the dehvery of services hereunder at no extra charge to the OWNER This Agreement may be sooner terminated m accordance w~th the provisions hereof Tune TANT shall make all reasonable efforts to complete the services th~s Agreement The CONSUL. -. J ..... * *Ne schedule established by the OWNER set forth herein as expeditiously as possime anu and shown m Exhibit "B", acting through its City Manager or lus designee The CONSULTANT agrees to expedite flus schedule without adchtlonal compensation if the OWNER requests m wntmg to do so COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" is defined as expenses incurred by the CONSULTANT employment of others m outside firms for services in the nature of professional engnneenng 2 "D~reet Non-Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, commumcations, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment 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 lump sums shown in Exhibit "C" which is attached hereto and made a part of this Agreement Page 3 as af written word for word herean, a total fee, ~ncludxng reimbursement for dxrect non- labor expenses not to exceed $224,642 00 Partaal payments to the CONSULTANT wall be made on the basis of detailed monthly statements rendered to and approved by the OWNER through ats City Manager or has desagnee, however, under no carcumstances shall any monthly statement for services exceed the value of the work performed at the time a statement as rendered The OV~rER may wathhold the final five percent (5%) of the contract amount until completion of the Project Nothing contmned m this Arhcle shall reqmre the OWNER to pay for any work wbach is unsatasfactury, as reasonably determined by the City Manager or bas designee, or which ~s not submatted an eomphance wath the terms ofth~s Agreement The OW'NER shall not be reqmred to make any payments to the CONSULTANT when the CONSULTANT ns ~n default under tbas Agreement It is specafically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to tbas Agreement wbach would reqmre add~taonal payments by the OWNER for any charge, expense, or reambursement above the maximum not to exceed fee as stated, wathout first having obttuned written authonzatwn from the OWNER The CONSULTANT shall not proceed to perform the s~'v~ces hsted m Article III "Addatlonal Servwes," without obtamxng prior written authonzataon from the OWNER C ADDITIONAL SI/RVICI/S NOT DESCRIBED 1N EXHIBITS "A" OR "B" For adthtaonal services authorized an writing by the OWNER m Artacle III, the CONSULTANT shall be pa~d based on the Schedule of Charges at an hourly rate shown ur Exhibit "C" Payments for addatlonal serrates shall be due and payable upon submlsswn by the CONSULTANT, and shall be ~n accordance with subsectwn B hereof Statements shall not be submatted more frequently than monthly D PAYMENT If the OWNER fiuls to make payments due the CONSULTANT for services and expenses wflban s~xty (60) days after receapt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the smd s~xt~eth (60th) day, and, in addition, the CONSULTANT may, after g~vmg seven (7) days' written notice to the OWNER, suspend services under tbas Agreement until the CONSULTANT has been prod in full all amounts due for servaces, expenses, and charges, provaded, however, nothing hereto shall reqmre the OWNER to pay the late charge of one percent (1%) set forth hereto ff the OWNER reasonably determines that the work is tmsat~sfactory, m accordance wath thas Artwle V, "Compensation" Page 4 ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in dlscovenng and promptly reporting to the OWNER any defects or deficiencies In 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 subcontxactors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the tenmnatlon of this Agreement The CONSULTANT is entitled to retain copies of all such documents The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released fiom any and all liability relating to their use in that project ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide 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 indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and agmnst any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall wmve any of the parties' defenses, both at law or eqmty, to any claim, cause of action, or litigation filed by anyone not a party to th~s Agreement, lncluchng the defense of governmental ~mmumty, which defenses are hereby expressly reserved Page 5 INSURANCE Dunng the performance of the services under th~s Agreement, CONSULTANT shall mmntam the following insurance w~th an insurance company hcensed to do business m the State of Texas by the State Insurance Commlas~on or any successor agency that has a rating with Best Rate Carners of at least an A- or above A Comprehensive General Liability Insurance w~th bodily injury hm~ts 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 m the aggregate B Automobile Liability Insurance with bodily injury hmlts of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage hmlts of not less than $100,000 for each accident C Worker's Compensation Insurance m accordance with statutory requirements, and Employers' Llablhty Insurance with limits of not less than $100,000 for each accxdent D Professional Liability Insurance with hmlts of not less than $1,000,000 annual aggregate E The CONSULTANT shall furmsh insurance certificates or insurance policies at the OWNER's request to evidence such coverages The insurance poheies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or mo&fled wtthout thirty (30) days' prior written notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any &sputes under this Agreement by submitting the dispute to arbitration or other means of alternate &spute resolution, such as mediation No arintratton or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement, may include the other party to the d~sagreement without the other's approval ARTICLE XI! TERMINATION OF AGREEMENT A Notwithstanding any other prowsion of th~s Agreement, e~ther party may terminate by giving thirty (30) days' advance written notice to the other party Page 6 B This Agreement may be terminated in whole or ~n part m the event of either party substantially f~ulmg to fulfill its obligations under this Agreement No such termination will be affected unless the other party ~s given (1) written notice (delivered by certffied 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 opportumty for consultation w~th the terminating party prior to tennmaUon C If the Agreement is terminated prior to completion of the services to be prowded hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER w~thm tlurty (30) days afier the date oftermanatton The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to terra,natron ~ncurred prior to the date of tenmnataon, m accordance wtth Article V "Compensation" Should the OWNER subsequently contract w~th a new consultant for the continuatton of servmes on the ProJect, CONSULTANT shall cooperate m prowdlng mformatton The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to ttus Agreement to the OWNER on or before the date of termtnat~on, but may m~untmn coptes of such documents for tts use RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responstbfl~ty and llablhty of the CONSULTANT, its employees, assomates, agents, subcontractors, and subconsultants for the accuracy and competency of thetr designs or other work, nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect tn the design or other work prepared by the CONSULTANT, ~ts employees, subcontractors, agents, and consultants ARTICLE XIV NOTICES All notmes, commumcations, and reports reqmred or permitted under ttus Agreement shall be personally delivered or mmled to the respective parttes by depositing same ~n the Umted States marl to the address shown below, certffied mall, return recetpt requested, unless otherwise spemfiedlhcrem Marled notmes shall be deemed communmated as of three (3) days' mad~ng To CONSULTANT To OWNER RUST Enwronment & In~astmcture, Inc C~ty &Denton Rod Z~elke, P E, ProJect Manager Howard Martin, Jr 1420 West Mocklngbtrd Lane, Suite 300 Assistant C~ty Manager of Uttht~es Dallas, Texas 75247-4906 215 East McKmney Denton, Texas 76201 Page 7 All notmes shall be deemed effective upon receipt by the party to whom such not,ce ~s g~ven, or w~th~n three (3) days' mmhng ARTICLE XV ENTIRE AGREEMENT Th~s Agreement, cons~stlng of 11 pages and 3 exhibits, constitutes the complete and final expression of the agreement of the part,es, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representatmns, negotiations, discussions, commlmlcatlons, and agreements which may have been made m connectmn w~th the subject matter hereof ARTICLE XVI SEVERABILITY If any prowsmn of thts Agreement ~s found or deemed by a court of competent jurisdiction to be invalid or unenforceable, ~t shall be considered severable fi.om the remmnder of this Agreement and shall not cause the remainder to be lnvahd or unenfomeable In such event, the part, es shall reform this Agreement to replace such stricken prows~on w~th a valid and enforceable prows~on which comes as close as possible to expressing the mtent~on of the stricken prows~on. ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply wtth all federal, state, and local laws, roles, regulatmns, and ordinances apphcable to the work covered hereunder as they may now read or hereinafter be mended ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the servmes reqmred hereunder, the CONSULTANT shall not discriminate against any person on the bas~s of race, color, rehgton, sex, national ongm or ancestry, age, or physmal handmap ARTICLE XIX PERSONNEL A The CONSULTANT represents that ~t has or w~ll secure, at ~ts own expense, all personnel reqmred to perform all the servmes reqmred under thru Agreement Such personnel shall not be employees or officers of, or have any contractual relatmns w~th the OWNER CONSULTANT shall inform the OWNER of any conflmt of ~nterest or p0tentml conflict of ~nterest that may arise dunng the term of th~s Agreement Page 8 B All services reqmred hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged m 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 interest in th~s Agreement, and shall not transfer any interest ~n th~s Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the OWNER MODIFICATION No waiver or mochficat~un of th~s Agreement or of any covenant, condition, or hm~tat~on hereto eontmned shall be vahd unless m writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received m ewdence m any proceechng arising between the part,es hereto out of or affeetmg th~s Agreement, or the rights or obhgat~ons of the part, es hereunder, and unless such wmver or mothficatiun ~s m wntmg and duly executed, and the partlas further agree that the provisions of this scot,un will not be wmved unless as set forth hereto MISCELLANEOUS A The following extub~ts are attached to and made a part ofth~s Agreement Exhibit "A" - C~ty of Denton RFP No 2140 Exhibit "B" - Project Approach Forecasting and Land Use Planmng Extub~t "C" - Schedule of Charges B CONSULTANT agrees that OWNER shall, until the expirat~on of three (3) years after the final payment under this Agreement, have access to and the right to examine any d~rectly pertinent books, documents, papers, and records of the CONSULTANT mvolwng transactions relatmg to this Agreement CONSULTANT agrees that OWNER shall have access dunng normal working hours to all necessary CONSULTANT £actht~es and shall be prowded adequate and appropriate working space in order to conduct audits m eomphance w~th this seetmn OWNER shall give CONSULTANT reasonable advance not~ee of intended audits C Venue of any stat or cause of action under tbas Agreement shall lie exclusively m Denton County, Texas Th~s Agreement shall be construed ~n accordance w~th the laws of the State of Texas D For the purpose of th~s Agreement, the key persons who will perform most of the work hereunder shall be Rod Z~elke, P E, Project Manager, Dr A1 Petrasek, P E, Pnnclpal-m- Charge, John Shreve, AIA, AICP, QU/QC However, nothing hereto shall hm~t Page 9 CONSULTANT from using other quahfied and competent members of its firm to perform the sermces reqmred hereto E CONSULTANT shall commence, carry on, and complete any and all projects with all apphcable d~spatch, m a sound, economical, and effiment manner and in accordance with the proms~ons hereof In ascomphsh~ng the projects, CONSULTANT shall take such steps as are appropnate to ensure that the work involved is properly coordinated w~th related work being earned on by the OWNER F The OWNER shall assist the CONSULTANT by plas~ng at the CONSULTANT's d~sposal all avmlable lnfonnatton pertinent to the Project, including prewous reports, any other data relative to the ProJect, and arranging for the access thereto, and make all prommons for the CONSULTANT to enter in or upon public and private property as reqmred for the CONSULTANT to perform servtces under this Agreement G The captions oftlus Agreement are for reformational purposes only, and shall not in any way affect the substantive terms or condxtions of this Agreement IN WITNESS HEREOF, the C~ty of Denton, Texas has caused this Agreement to be executed by ~ts duly authorized C~ty Manager, and CONSULTAbJT has execut~ figs Agreement throl9'~ ]~ts duly anthonzed understgned officer on this the /~r~ day of ~~ , CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY BY ~ HERBERT L PROUTY, C~T~/~T'I] ~RNEY Page 10 02/3.~./95 WED 09 43 FAX 9403497707 CITY OF DENTON PLANNING ~002 RUST ENV]~OI'qMP_NTAL & WlTNI~SS Page 11