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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