1997-102A \EMCONORD
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH EMCON, INC. ("EMCON") REGARDING SERVICES
RELATED TO PREPARATION FOR TEXAS NATURAL RESOURCE CONSERVATION
COMMISSION ADMINISTRATIVE HEARING FOR LANDFILL PERMIT; AUTHORIZING
THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the City Manager Ks hereby authorized to
execute a professional services agreement with EMCON, Inc
regarding services related to preparation for Texas Natural
Resource Conservation Commission Administrative Hearing for
Landfill Permit; a copy of which Agreement KS attached hereto and
incorporated herein
SECTION II. That the expenditure of funds as provided in the
attached Agreement is hereby authorized.
SECTION III That this ordinance shall become effective
immediately upon its passage and approval
PASSED AND APPROVED this the day of ~,
1997
JA~MILLER, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
STATE OF TEXAS §
COUNTY OF DENTON §
PROFESSIONAL SERVICES AGREEMENT
FOR SERVICES RELATED TO
PREPARATION FOR TEXAS NATURAL RESOURCE CONSERVATION
COMMISSION ADMINISTRATIVE HEARING
FOR LANDFILL PERMIT
THIS AGREEMENT ls made and entered into as of the day of
, 1997, by and between the City of Denton, a Texas
Municipal Corporation, with its principal office at 215 E. McKinney
Street, Denton, Denton County, Texas 76201, (hereinafter "CITY")
5701E Loop 820 S ,
and EMCON, Inc., with Its principal offices at Fort Worth, Texas 76119
(hereinafter "CONSULTANT") acting herein, by and through their duly
authorized representatives.
WITNESSETH, that in consideration of the covenants and
agreements herein contained, the parties hereto do mutually agree
as follows:
ARTICLE I
EMPLOYMENT OF CONSULTANT
The CITY 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
.hi~hc:t 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 (hereinafter
"Project"): Preparation for and participation in the
administrative hearing before the Texas Natural Resource
Conservation Commission (hereinafter "TNRCC") pertaining to the
City of Denton's application for landfill permit.
ARTICLE II
SCOPE OF SERVICES
The CONSULTANT shall perform the following services in a
professional manner:
A. To perform all those services set forth in the Estimate of Time
and Costs for Permit Amendment Hearing, City of Denton Landfill
(hereinafter the "Estimate"), which Estimate is attached hereto
and made a part hereof as Exhibit "A" as if written word for
word herein.
ARTICLE III
PERIOD OF SERVICE
This Agreement shall become effective upon execution by the
CITY and the CONSULTANT of this Agreement and upon the issuance of
a notice to proceed by the CITY and shall remain in force for the
period which may reasonably be required for the completion of the
Project, and any required extensions approved by the CITY. 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 CITY, acting through its City
Manager or his designee.
ARTICLE IV
COMPENSATION
A. COMPENSATION TERMS:
1. "Subcontract Expense" is defined as expenses incurred by
the CONSULTANT in employment of others in outside firms for
services in the nature of support activities incident to
CONSULTANT'S preparation for the TNRCC administrative
hearing.
PAGE 2
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 here~n, the CITY agrees to pay
based on the cost estimate detail at an hourly rate shown in
the Estimate, which is attached hereto as Exhibit "A" 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 $17,150.00.
Partial payments to the CONSULTANT will be made on the basis of
detailed monthly statements rendered to and approved by the
CITY 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 t~me a statement
is rendered. The CITY may withhold the final 5% of the
contract amount until completion of the Project.
Nothing contained ~n this Article shall require the CITY to pay
for any work which is unsatisfactory as reasonably determined
by the City Manager or his designee or which is not submitted
in compliance with the terms of this Agreement. The CITY shall
not be required to make any payments to the CONSULTANT when the
CONSULTANT lq in 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 additional payments by the CITY
for any charge, expense or reimbursement above the maximum not
to exceed fee as stated w~thout f~rst having obtained written
authorization from the CITY.
PAGE 3
C. PAYMENT
If CITY falls to make payments due the CONSULTANT for services
and expenses wlthin slxty (60) days after recelpt 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 notice
to the CITY, suspend services under this Agreement until the
CONSULTANT has been paid in full all amounts due for services,
expenses and charges provided, however, nothing herein shall
require the CITY to pay the late charge of one percent (1%) set
forth herein if the CITY reasonably determines that the work is
unsatisfactory, in accordance with this Article IV,
Compensation.
ARTICLE V
OBSERVATION AND REVIEW OF THE WORK
The CONSULTANT will exerclse reasonable care and due diligence
in discovering and promptly reporting to the CITY any defects or
deficiencies in the work of the CONSULTANT or any subcontractors or
subconsultants.
~RTICLE VI
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 CITY 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 CITY'S use of these documents in
other projects shall be at CITY'S sole risk and expense In the
event the CITY uses the Agreement in another project or for other
purposes than specified herein any of the information or materials
PAGE 4
developed pursuant to this Agreement, CONSULTANT is released from
any and all liability relating to their use in that project
ARTICLE VII
INDEPENDENT CONTRACTOR
CONSULTANT shall provide services to CITY ns an ~ndependent
contractor, not as an employee of the CITY CONSULTANT shall not
have or claim any right arising from employee status
ARTICLE VIII
INDEMNITY AGREEMENT
The CONSULTANT shall indemnify and save and hold harmless the
CITY and its officers, agents, and employees from and against any
and all liability, claims, demands, damages, losses and expenses,
including but not llm~ted to court costs and reasonable attorney
fees incurred by the CITY, and lncludlng without limitation damages
for bodily and personal ln]ury, death and property damage,
resulting from the negligent acts or omlsslons of the CONSULTANT or
its officers, shareholders, agents, or employees in the execution,
operation, or performance of th~s Agreement
Nothing ~n this Agreement shall be construed to create a
llabillty to any person who Ks 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 llt~gatlon f~led by
anyone not a party to this Agreement, including the defense of
governmental immunity, which defenses are hereby expressly
reserved.
ARTICLE IX
INSURANCE
During the performance of the Services under this Agreement,
CONSULTANT shall malntaln the following Insurance w~th an insurance
company licensed to do business in the state of Texas by the State
PAGE 5
Insurance Commission or any successor agency that has a rating with
Best Rate Carriers of at least an A- or above
Commercial
A. C~mprghcn~lvc General Liability Insurance with bodily injury
limits of not less than $500,000 for each occurrence and not
less than $500,000 in the aggregate, and with property damage
limits of not less than $100,000 for each occurrence and not
less than $100,000 in the aggregate
B. Automobile Liability Insurance w~th bodily ~n]ury limits of not
less than $500,000 for each person and not less than $500,000
for each accident and with property damage limits for not less
than $100,000 for each accident.
C. Worker's Compensation Insurance ~n accordance with statutory
requirements and Employers' L~ablllty Insurance wzth limits of
not less than $100,000 for each accident
D. Professional Liablllty Insurance with limits of not less than
$1,000,000 annual aggregate
E. The CONSULTANT shall furnish insurance certificates or
insurance poli¢les at the CITY's request to evidence such
coverages. The insurance policies shall name the CITY as an
additional Insured on all such policies to the extent legally
poeslble, and shall contain a provision that such insurance
shall not be canceled or modified without 30 days prior written
notl¢e to CITY 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 X
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The partles may agree to settle any disputes under this
Agreement by submitting the dispute to arbitration or other means
PAGE 6
of alternate dispute resolution such as mediation No arbItration
or alternate dispute resolution arising out of or relating to, this
Agreement involving one party's disagreement may include the other
party to the disagreement without the other's approval
ARTICLE XI
TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Agreement, either
party may terminate by glvlng 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 falling 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 speclfy~ng
the nonperformance, and not less than 30 calendar days to cure
the failure, and (2) an opportunity for consultation wlth the
terminating party prior to termination
C. If this Agreement is terminated prior to completion of the ser-
vices to be provlded hereunder, CONSULTANT shall immediately
cease all services and shall render a final bill for services
to the CITY within 30 days after the date of termination. CITY
shall pay CONSULTANT for all services properly rendered and
satlsfactorlly performed and for reimbursable expenses to
termination incurred prior to the date of termination in ac-
cordanc~ with Artlcle IV, Compensation Should CITY sub-
sequently contract with a new CONSULTANT for the continuation
of services on the project, CONSULTANT shall cooperate in
providing information. The CONSULTANT shall turn over all
documents prepared or furnished by CONSULTANT pursuant to th~s
Agreement to the CITY on or before the date of termination but
may maintain copies of such documents for its use
PAGE 7
ARTICLE XII
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Approval by the CITY 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 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
ARTICLE XIII
NOTICES
Ail notices, communications, and reports required or permitted
under this Agreement shall be personally delivered or mailed to the
respective parties 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 CITY:
A Richard Smith City of Denton
EMCON ATTN: Ted Benavldes
5701 E Loop 820 S. Title: City Manager
Fort Worth; TX 76119-7051 215 E. McKlnney
Denton, Texas 76201
Ail notices shall be deemed effective upon receipt by the party
to whom such notice is given or within three days mailing
ARTICLE XIV
ENTIRE AGREEMENT
This Agreement consisting of 13 pages and one exhibit
constitutes the complete and final expression of the agreement of
the parties and is intended as a complete and exclusive statement
PAGE 8
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
ARTICLE XV
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 remalnder to be invalid or unenforceable. In
such event, the party shall reform thls Agreement to replace such
stricken provision wlth a valld and enforceable provlslon whlch
comes as close as possible to expresslng the intention of the
stricken provision.
ARTICLE XVI
COMPLIANCE WITH LAWS
The CONSULTANT shall comply w~th all federal, state, local
laws, rules, regulations, and ordinances applicable to the work
covered hereunder as they may now read or hereinafter be amended
ARTICLE XVII
DISCRIMINATION PROHIBITED
In performing the services required hereunder, the CONSULTANT
shall not d~scr~m~nate against any person on the basis of race,
color, rellglon, sex, national or,gin or ancestry, age, or physical
hand~cap.
~RTICLE XVIII
PERSONNEL
A. The CONSULTANT represents that it has or will secure at its own
expense all personnel required to perform all the services
PAGE 9
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 CITY of any
conflict of interest or potential conflict of interest that may
arise or be discovered 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.
ARTICLE XIX
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 CITY.
ARTICLE XX
MODIFICATION
No waiver, modification, or amendment 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. 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 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
ARTICLE XXI
MISCELLANEOUS
A. The following exhibit is attached to and made a part of this
PAGE 10
Agreement:
Exhibit A: Estimate of Tlme and Costs for Permit
Amendment Hearing City of Denton Landfill
B. CONSULTANT agrees that CITY 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 CITY 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. CITY 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 governed by, and 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 A. Richard Smith.
However, nothing herein shall limit CONSULTANT from using other
qualified and competent members of their firm to perform the
services required herein, provided that CONSULTANT f~rst obtain
the prior written consent of CITY
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
hereof. In accomplishing the pro]ects,,.CONSULTANT shall take
such steps as are appropriate to ensure that the work ~nvolved
~s properly coordinated with related work being carried on by
the CITY.
F. The CITY shall assist the CONSULTANT by placing at the
CONSULTANT's disposal all available information pertinent to
PAGE 11
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 informational purposes
only and shall not In any way affect the substantive terms or
condltions of this Agreement.
IN WITNESS WHEREOF, the City of Denton, Texas has caused this
Agreement to be executed by lts duly authorized City Manager, and
CONSULTANT has executed this Agreement through its duly authorized
undersigned officer on th~s the /S~ day of ~ ,
1997.
"CITY"
CITY OF DENTON, TEXAS
Ted Benav~des, C~ty Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
AP~ROVED AS TO LEGAL FORM
HERBERT L. PROUTY, CITY ATTORNEY
PAGE 12
"CON SULTANT"
EMCON, Inc
Name: M~chael ~ S~fiflett
Title. Branch Manager
ATTEST:
A I \EMCON
PAGE 13
Esama~e of Time a,d Costa for Pelnut Amendment Hearing,
City of Denton Landfi]]
The followml~ asttmates of trine for A Ibchard Snuth and supponlng EMCON stall'are
based on a discussmn with Susan Zachos about the anttopated actlv~tte~ for the landfill
pemut amendment heanng The acttvlt.es include not only the heanng Itself but also
review of files preparato~, to deposit~ons and the heanng, parttctpatton tn preparation of
profiled testunony, pamclpatlon m deposmon ofplamhfs ~xpert hydrogeologtst (ti'any).
patt~etpatton m preparauon ofclosm$ argument~, and travel The cost esttmates are ba~ed
on EMCON'a current bdhng rates and actual esttmated expenses The amount of amc
estumted ts obvtously 1fishly dependant on the &cttvtues of others, mrJudm8 the Cay. its
attorneys, md Its other comultants, the plm~ffs and thor attorneys, and the TNRCC Ali
work Mil be performed on a tune-and-matmals barn
Tune eattmatea £or A Rachard Snuth
Review of documents in preparatton for deposmons
and hanrmg 20 hour~
Dttcoveo/(review ofdocumenu) 4
Preparation by mon~ for deposmon 2
Deposition by opposltmn (prennned in Denton) 3
Prapamion of pra-filed testimony
R iew of'opposition docmms for hesnfl 12
Travel time (mmme 2 tril~ to Aumn, 3 dady raps to Denton) 20
Total time 131 hours
T'uno estinuttes for EMCON junior and
Discova7 (collection ofdocummts) ti hour~
Total --- 24
Thc hourly rotes uanaatad Mth the time esttmate~ are
A. Rachm'd Smtth S i 12
Jumor staff 78
Clerical staff 41
Based on rite time estimates and the hourly rates, the
expected to be about $16.000 In addition, tnwe! experlsas £or A R*¢hard SmKh are
esttmated to be about $1.1S0~ based on
mghts) and .'1 day tnpa to Denton The Iotal eattmatcd coat