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