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1997-083 0RDIN CE NO 99-- AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON AND D L SARGENT, JR DBA SARGENT APPRAISAL COMPANY FOR APPRAISAL REVIEW SERVICES RELATING TO RIGHT-OF-WAY ACQUISITION ALONG U S HIGHWAY 77, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ~ That the City Manager is hereby authorized to execute a professional services agreement for appraisal review services between the Czty of Denton and D L Sargent, Jr , DBA Sargent Appraisal Company to assist the City in establishing reasonable values for the acquisition of right-of-way for U S Highway 77 wzdenlng project, a copy of which ~s attached hereto and ~ncorporated here~n ~ II That the City Manager is hereby authorized to expend the funds as specmfled in the contract ~ That this ordinance shall become effective mmmedzately upon mrs passage and approval PASSED AND APPROVED thms the /~ day of ~~__, 1997 ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY PROFESSIONAL SERVICES AGREEMENT FOR D.L Sargent~ Jr, DBA Sargent Appraisal Company Appraisal Review Services HWY 77 Project STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the day of , 1996, by and between the City of Denton, a Texas Municipal Corporation, with its principal office at 215 E McKlnney Street, Denton, Denton County, Texas 76201, (hereinafter sometimes referred to as "OWNER") and Sargent Appraisal Company , with its corporate office at p 0.B0x 2256, 10090 Tom Maxwell , hereinafter called the ("CONSULT~_NT") acting herein, by and through their duly authorized representative. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows. EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with 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 obtained for such services in the State of Texas The professional services set out herein are in connection with the following described project The Project shall include without limitation, (herein described Project) ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner' A The CONSULTANT shall perform all those services as necessary and as described in the OWNER's (herein describe any request for proposal which the owner has utilized to solicit the described tn meeting CONSULTANT's services) with ,lerrv Cl~r~ request which is oger W~l~ nson ' attached hereto and ma~ a part ~ as ereof ~x'~" as if written word for word herein Right-of-way plans already pr0vlded to consultant B To perform all those services set forth in CONSULTANT'S (herein described any proposal of CONSULTANT which has been provided see att letter 1/~/97 including the date of said proposal ) which proposal is 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 ~ndlvldual task orders which shall be attached to this agreement and made a part hereof for all purposes as separate agreements (If CONSULTANT is a professmonal engineer and you wish to list specific services of the CONSULTANT please lmst all specific engineering servmces to be provided including the preparation of detailed plans and specifications) 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 exhibits or task orders. PAGE 2 ADDITIONAL SERVICES (To be used if CONSULTANT zs an engineer) Additional Services to be performed by the CONSULTANT, mf authorized by the OWNER, whmch are not mncluded mn the above descrmbed basmc servmces, are described as follows A During the course of the project, as requested by OWNER, the CONSULTANT will be available to accompany OWNER's personnel when meetmng wmth the Texas Natural Resource Conservation Commmsslon, U S Environmental Protectmon Agency, or other regulatory agencmes The CONSULTANT will assist OWNER personnel on an as-needed basis mn preparing compliance schedules, progress reports, and providing general technical support for the OWNER's compliance efforts B Asslstmng OWNER or Contractor in the defense or prosecutmon of lmtlgatlon mn connection with or in addition to those services contemplated by th~s Agreement Such services, if any, shall be furnished by CONSULTANT on a fee basis negotmated by the respectmve parties outsmde of and mn addmtmon to thms Agreement C Sampling, testmng or analysms beyond that specifically included mn Basmc Servmces D Preparing copmes of Computer A~ded Drafting (CAD) electronic data bases, drawings, or fmles for the OWNER's use mn a future CAD system E Preparmng appllcatmons and supporting documents for government grants, loans, or plannmng advances and providing data for detamled applmcatlons PAGE 3 F Appearing 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 engineering data and reports for assistance to the OWNER G Providing geotechnlcal Investigations for the site including soil borings, related analyses and recommendations. H (List any additional services not included in Basic Services) PERIOD OF SERVICE This Agreement shall become effective upon execution by the OWNER and the CONSULTANT of this Agreement and upon issue of a notice to proceed by the OWNER and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER This Agreement may be sooner terminated 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 herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee ARTICLE V COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for PAGE 4 services in the nature of 2 "Direct Non-Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence and lodging away from home and similar incidental 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 cost estimate detail at an hourly rate shown in Exhibit C, which is attached hereto and made a part of this agreement as if written word for word herein, a total fee including reimbursement for direct non-labor expense not to exceed may vary depending on number of appraisals revtewed see exhibit "B" for rate schedule Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the owner through its City Manager or his designees, however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered The owner may withhold the final 5% of the contract amount until completion of the project. Nothing contained in this Article shall require the owner to pay for any work which is unsatisfactory as reasonably determined by the C~ty Manager or his designee or which is not submitted in compliance with the terms of this contract. The City shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this PAGE b contract It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the maximum not to exceed fee as stated without first having obtained written authorization from the OWNER The CONSULTANT shall not proceed to perform the services listed in Article IV Additional Services, without obtaining prior written authorization from the owner C ADDITIONAL SERVICES For additional services authorized in writing by the OWNER in Article IV, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit C Payments for additional services shall be due and payable upon submission by the CONSULTANT and shall be in accordance with subsection B hereof Statements shall not be submItted more frequently than monthly D PAYMENT If the OWNER falls to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt 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 said sixtieth (60th) day, and in addition, the CONSULTANT may, after giving seven (7) days' written not~ce to the OWNER, suspend services under this Agreement until the CONSULTANT has been pa~d in full all amounts due for services, expenses and charges provided, PAGE 6 however, nothing here~n shall require the owner to pay the late charge of one percent (1%) set forth herein if the owner reasonably determines that the work is unsatisfactory, in accordance with this Article V, Compensation OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering 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 Ail documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service and shall become the property of the OWNER upon the termination 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 the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this agreement, CONSULTANT is released from any and all l~ablllty relating to their use in that project INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent PAGE 7 contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right arising from employee status INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against 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 ln]ury, 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 waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the state of Texas by the State Insurance Cor~/RlSSlOn or any successor agency that has a rating with Best Rate Carriers of at least an A- or above A Comprehensive General L~ab~l~ty Insurance with bodily injury PAGE 8 limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage llmlts of not less than $100,000 for each occurrence and not less than $100,000 ~n the aggregate B Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident and with property damage llmzts for not less than $100,000 for each accident C The CONSULTANT shall furnish insurance certificates or znsurance pollczes at the OWNER's request to evidence such coverages The insurance pollczes shall name the OWNER as an additional insured on all such policies and shall contain a~ provzszon that such insurance shall not be canceled or modzfled without 30 days prior written notzce to OWNER and CONSULTANT In such event, the CONSULTANT shall, przor to the effectIve date of the change or cancellation, serve substitute policies furnzshzng the same coverage ARTICLE XI ARBITP. ATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submzttlng the dispute to arbitration or other means of alternate dispute resolution such as medlatzon No arbitration or alternate dispute resolutzon arising out of or relating to, thzs 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 this 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 in part in the event of either party substantially failing to fulfill its obligations under this Agreement No such termination will be affected unless the other party is given (1) written notice (delivered by certified mall, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, and not less than 30 calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If the agreement is terminated prior to completion of the ser- vices to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the owner within 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 incurred prior to the date of termination in ac- cordance with Article IV, Compensation Should the OWNER sub- sequently contract with a new CONSULTANT for the continuation of services on the pro]ect, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination but may maintain copies of such documents for its use. PAGE 10 RESPONSIBILITY FOR CI~IMS AND LIABILITIES Approval by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its 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 responsibility by the City for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents and consultants NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective part~es by depositIng same in the United States mall at the address shown below, certified mall, return receipt requested unless otherwise specified herein. Mailed notices shall be deemed communicated as of three days mailing To CONSULTANT To OWNER Sargent Appraisal C0mpan¥ City of Denton P 0 Box 2756 ATTN 10090 Tom Maxwell Rd. Title Denton, I;l /b~U~ 215 E McK~nney Denton, Texas 76201 Ail notices shall be deemed effective upon receipt by the party to whom such notice is given or within three days mazllng. ARTICLE XV ENTIRE AGREEMENT PAGE 11 This Agreement consisting of 17 pages and 2 exhibits constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusIve statement of the terms of their agreements and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of th~s Agreement shall not cause the remainder to be ~nvalld or unenforceable In such event, the party shall reform th~s Agreement to replace such stricken provision w~th a valid and enforceable provision which comes as close as possible to expressing the ~ntent~on of the stricken provIsion COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. PAGE 12 PERSONNEL A The CONSULTANT represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, or have any contractual relations with the city CONSULTANT shall Inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement B Ail services required hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged in work shall be qualified and shall be authorized and permitted under state and local laws to perform such services ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any Interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the OWNER MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or PAGE 13 modification is in writing, duly executed, and, the parties further agree that the provisIons of this section will not be waived unless as herein set forth. MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement (list exhibits) B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the 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 during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. OWNER shall give CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas This Agreement shall be construed in accordance with the laws of the State of Texas D For the purpose of this Agreement, the key persons who will perform most of this work hereunder shall be However, nothing herein shall limit CONSULTANT from using other qualified and competent members of their firm to perform the services required herein. E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, efficient manner, and, in accordance with the provisions PAGE 14 hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved ls properly coordinated with related work being carried on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's d~sposal all available information pertinent to the project, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANT to perform services under this Agreement. G The captions of this Agreement are for ~nformatlonal purposes only and shall not in any way affect the substantive terms or conditions of this Agreement IN WITNESS HEREOF, the C~ty of Denton, Texas has caused this Agreement to be executed by ~ts duly authorized City Manager and CONSULTANT has executed this Agreement through ~ts duly authorized undersigned officer on this the /~ day of ~ , CITY OF DENTON, TEXAS Ted Benav~des, C~ty Mana~ger ATTEST. JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM- PAGE 15 HERBERT L. PROUTY, CITY ATTORNEY CONSULTANT Name a L Sargent,Jr Tztle Owner - Sole Propm~etor WITNESS' PAGE 16 Exhlblt P o BOX ~¢~1 1 ~ TOM M,~'WEL/ROAD DENTON, TEXAS, 76202 2756 817 585-9574 Member Appraisal Inet~ute D L Sargent Jr State Cert~ied General Real Eetata Appramer Licensed Real Eetate Broker COPY January 6, 1997 Mr Roger Wdk~nson Eng~neenng Department C~ty of Denton City Hall - West, N Elm Denton, TX 76201 Re Fee Proposal, Real Estate Appraisal Rewews, HWY 77 Project, Denton, TX Dear Mr Wdk~nson Thank you for the opportumty to prowde appraisal rewew services for the City of Denton relating to nght-of-way acquisition along HWY77 north of HWY 380 and east - south of IH35 It is my understanding Fanning and Associates of Denton wdl be prepanng the appraisal reports wh ch w be rewewed The scope of the rewew ~s for proper apphcat[on of ap, pralsal theory, compliance wRh Texas H~ghway Department appraisal procedures, and certmcaflon that the value / compensation estimate ~s supported by venfled market data All quesbons I have concern nga particular appraisal wdl be handled d~rectly between myself and the appra ser If the appraiser and myself cannot reconcde questmns, but value ~s not affected, the rewew wdl so state However, ~f valuation questions cannot be resolved, a separate apprmsal should be prepared, which is not ~ncluded ~n th~s fee proposal I beheve the assignments break down roughly as follows Non-complex Land 48 Complex Land 8 Improved Propertms 7 You mentioned about half of the non-complex land assignments may not be appraised due to compensation esbmates below some de m~n~m~s level The fee for each appraisal rewew of a non-complex land appraisal report Is $150, complex land $250, and ~mproved propertms $350 Appearance before any depos~bon, commission, court, or preparation time for any such event wdlbe bdled separately Please call ~f you have any further questions S~ncerely, D L Sargent, Jr, MAI E~hibit "C" Dorwln L. Sargent, Jr. Qualifications Memberships/ Experience Member of the Appraisal Inst;tute (MAI) Member Number 9191 State Certified General Real Estate Apprmser Cerbflcate No TX-1320243 Broker, hcensed by the Texas Real Estate Commission, L~cense No 310320 Acbve ~n Real Estate ^ppramal on Fee Bas~s ~n Denton, Texas from 1982 to the present Appraisal Rewew Board, Denton Central Appraisal D~stnct, 1987 - 88 Apprmsal Institute Committees Region 8 Ethics and Counseling Panel Education: Bachelor of Business Adm~n~strabon, Baylor Umvers~ty Concentration of Study ~n F~nance / Real Estate Numerous Appraisal Courses & Seminars Sponsored by the Amencan Insbtute of Real Estate Apprmsers Society of Real Estate Apprmsers Apprmsal Insbtute Types of Assignments Market value appraisals on acreage (farm, ranch, transitional), multi-family, office, retail, office/ warehouse, special purpose, and single family Highest and Best Use - Feasib~hty Analys~s Eminent Domain Assignments Completed Assignments for Previous Clients Iparflal hst, Corporate and nd~wdual clmnts omitted) First State Bank, Denton, North Texas Sawngs, Denton, Texas Bank, Denton, Nat~ons Bank, Dallas, Guaranty National Bank, Sanger and Galneswlle, Lake C;bes Bank, Lake Dallas, Bank One, Denton, Texas Commerce Bank, Ft Worth, Hibernia Bank, Dallas F D I C, Resolut on Trust Corporation, C~ty of Denton, Un~vers~ty of North Texas, Texas Woman's Umvers;ty, Texas Parks & W~ldhfe, C~ty of Ft Worth, C~ty of Lewiswlle, Texas H~ghway Department