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1997-308AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A PROFESSIONAL SERVICES AGREEMENT WITH THE DENTEX TITLE COMPANY FOR CLOSING SERVICES AND ISSUANCE OF TITLE POLICIES FOR THE U S HIGHWAY 77 WIDENING PROJECT, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ~ That the City Manager is hereby authorized to enter Into a professional services agreement vath Dentex T~tle Company for closmg services and ~ssuance of t~tle pohcies for the U S Highway 77 w~denmg project SECTION II That the C~ty Manager ~s authorized to expend the funds as required by the attached agreement ~ That th~s ordmance shall become effective immedmtely upon its passage and approval AND APPROVED this the~/~- PASSED -- day of ~'-~ ~/'~ 1997 JENNIFER WALTERS, CITY SECRETARY B . ~ ~ AP~OVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY PROFESSIONAL SERVICES AGREEMENT FOR DENTEX TITLE COMPANY CLOSING SERVICES AND ISSUANCE OF TITLE POLICIES - HWY 77 PROJ STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made and entered into as of the ~/-~ day of ~, 199~, by and between the City of Denton, a Texas Munzclpal Corporatzon, with zts prmnczpal offzce at 215 E. McKinney Street, Denton, Denton County, Texas 76201, (hereinafter sometzmes referred to as "OWNER") and DENTEX TITLE COMPANY , wlth zts 300 N. ELM, ~'£~ lu~ corporate off~ce at ])E~Tn~. TEXAS 76201 , hereinafter called the ("CONSULTANT") actzng herezn, by and through thezr duly authorized representatzve. WITNESSETH, that in consmderatzon of the covenants and agreements heremn contamned, the parties hereto do mutually agree as follows: EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with CONSULTANT, as an mndependent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, wmth diligence and zn accordance with the hzghest professzonal standards customarzly obtazned for such servmces mn the State of Texas. The professmonal services set out herezn are mn connectmon wmth the following described project: The Project shall include wmthout llmmtatlon, (herein described Project) SCOPE OF SERVICES The CONSULTANT shall perform the following services mn a professional manner: A. The CONSULTANT shall perform all those services as necessary and as described mn the OWNER's (herein describe any request for proposal which the owner has utilized to sollcmt the DESCRIBED IN PROPOSAL CONSULTANT's services) Tn R~R ~4TT.T~T~(~N request which is attached hereto and made a part hereof as Exhibit "A" as if written word for word heremn. B. TO perform all those services set forth in CONSULTANT'S (herein described any proposal of CONSULTANT which has been provided including the date of said proposal SEE ATTACHED ) 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 individual task orders which shall be attached to this agreement and made a part hereof for all purposes as separate agreements. (If CONSULTANT is a professional engineer and you wish to lmst specific servmces of the CONSULTANT please list all specmfic engineering services to be provided including the preparatmon of detailed plans and specmflcatlons). D. If there is any conflict between the terms of thms agreement and the exhibits attached to this agreement the terms and condltmons of this agreement will control over the terms and condltmons of the attached exhibits or task orders. PAGE 2 ADDITIONAL SERVICES (To be used if CONSULT~/gT is an engineer). Additional Services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above described basic services, 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 meeting with the Texas Natural Resource Conservation Commission, U.S. Environmental Protection Agency, or other regulatory agencies. The CONSULTANT will assist OWNER personnel on an as-needed basis in preparing compliance schedules, progress reports, and providing general technical support for the OWNER's compliance efforts. B. Assisting OWNER or Contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. C. Sampling, testing or analysis beyond that specifically ~ncluded in Basic Services. D. Preparing copies of Computer Aided Drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system. E. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. 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 s~te 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 not~ce to proceed by the OWNER and shall remain ~n 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. COMPENSATION A COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside f~rms for PAGE 4 services in the nature of N/A 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 th~s 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 .COVERAGE AMOUNT REQUESTED-SEE EXHIBIT "B" FOR RATE SCHEDULE Partial payments to the CONSULTANT will be made on the bas~s 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 ls 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 City Manager or h~s 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 ~s in default under th~s PAGE 5 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 lasted in Artacle IV Additional Services, without obtaining prlor written authorlzatlon from the owner. C ADDITIONAL SERVICES For addltaonal services authorazed in wratang by the OWNER an 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 fails 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 sa~d sixtieth (60th) day, and in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all a~ounts due for services, expenses and charges provided, PAGE 6 however, nothing herein 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 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 th~s Agreement. The CONSULTANT is entitled to retain cop~es 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 here~n 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 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 l~ablllty 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 l~tlgatlon 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 th~s Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the state of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above. A Comprehensive General Liability Insurance with bodily injury PAGE 8 l~m~ts of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and w~th property damage limlts of not less than $100,000 for each occurrence and not less than $100,000 ~n the aggregate B. Automobile L~ablllty 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 llmlts for not less than $100,000 for each accident. C. Worker's Compensation Insurance ~n accordance w~th statutory requlrements and Employers' Liability Insurance with limits of not less than $100,000 for each accldent. D. Professlonal Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional lnsured on all such policies and shall contain a provision that such insurance shall not be canceled or modified w~thout 30 days prior written not~ce to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prlor to the effectlve date of the change or cancellation, serve substitute policies furn~shlng the same coverage. ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any d~sputes under th~s Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this PAGE 9 agreement ~nvolvlng one party's disagreement may include the other party to the disagreement without the other's approval. 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 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 specifying the nonperformance, and not less than 30 calendar days to cure the failure, and (2) an opportunlty for consultation with the terminating party prior to termination C. If the agreement ~s terminated prior to completion of the ser- vices to be provided hereunder, CONSULTANT shall l~unedlatety cease all services and shall render a final bill for services to the owner wlthln 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 project, 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 terralnatlon but may maintain copies of such documents for its use. PAGE 10 RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWqgER 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 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 here~n. Mailed notices shall be deemed communicated as of three days mailing: To CONSULTANT: To OWNER' DENTEx TITLE COMPANY City. of DentoD 300 N~ ELM, STE 101 ATTN. DENTOn, TEXAS 76201 Title: 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. ENTIRE AGREEMENT PAGE 11 This Agreement consisting of 17 pages and 2 exhibits constitutes the complete and final expressIon of the agreement of the partles and Is intended as a complete and exclusive statement of the terms of their agreements and supersedes all prior contemporaneous offers, promises, representations, negotiations, d~scusslons, communications and agreements which may have been made in connection w~th 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 remalnder of th~s Agreement shall not cause the remainder to be invalid or unenforceable. In such event, the party shall reform th~s Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken prov~slon. 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 d~scr~m~nate against any person on the basis of race, color, rellglon, sex, national or~g~n or ancestry, age, or physical handicap. PAGE 12 PERSONNEL A The CONSULTANT represents that it has or wall secure at its own expense all personnel required to perform all the services requmred under this Agreement. Such personnel shall not be employees or offmcers of, or have any contractual relatmons with the city. CONSULTANT shall mnform the OWNER of any conflict of interest or potential conflict of ~nterest that may arise durlng the term of this Agreement. B. Ail services required hereunder will be performed by the CONSULTANT or under its supervision. Ail personnel engaged work shall be qualified and shall be authorized and permitted under state and local laws to perform such services. ASSIGNABILITY The CONSULTANT shall not asslgn any ~nterest ~n thls Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) w~thout the prior written consent of the OWNER. MODIFICATION No waiver or modification of th~s Agreement or of any covenant, condl.tlon, llml%atlon 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 thls Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or PAGE 13 modification is zn writing, duly executed, and, the parties further agree that the provisions of this section wall not be waived unless as herein set forth. MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement (last 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 gave 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 AL VICK perform most of this work hereunder shall beAZZTr~CT DL~;T However, nothing herein shall limit CONSULTANT from using other qualified add competent members of their farm 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, an accordance with the Drovlslons PAGE 14 hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work ~nvolved is properly coordinated w~th related work belng carried on by the OWNER. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal 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 informational purposes only and shall not in any way affect the substantive terms or conditions of th~s Agreement. IN WITNESS HEREOF, the City of Denton, Texas has caused th~s Agreement to be executed by its duly authorized C~ty Manager and CONSULTANT has executed this Agreeme~% through ~ts duly authorized undersigned officer on th~s the ~/~ day of CITY OF DENTON, TEXAS Ted Benav~des, City Manager ATTEST: JENNIFER W~LTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM PAGE 15 HERBERT L. PROUTY, CITY ATTORNEY Name: ]~E~ECCA ARNL T~tle' PRESIDENT WITNESS: PAGE 16 [ I ~ I , ~ EXHIBIT "A" I THAT BEGINS ATi,~HE PROPERTY L NE DATE '~ ~t, ~997 [t~-~~ TO: ~i~kih~n, ~'~i~y~ of Denton FROM: ~ Arnold- De~te~ Title Company RE: ~77 Widening ProJgct Dente~ ~itle ~Co~pany~:wodl~ ~ike ,to submmt the followin~ proposal for~ th~e,~ S.{ ~Hi~hway.: 77 ~ ~iaening proJect has p~ev~ous ~xpe~aence with several{ projects [s~ project, includmng working with t,h~ City of ~. 24~9~'p~oJ~qt, Upper Trinity ~egio~nl Wa~er ~he~ ~riq~y ~iver Aut,hormty; and the CoUnty of ~as{~a~ on,site abstract~no,plant di~=tly fro~ ~t~he City Hall Wes~ building for :ed Escrow Fee for all City, State and which is $50,00 per transaction ~e set by the Texas Dept or'Insurance ~ ,an I~ndependent Agent for A'..amo Title n~ur~x%oe~, ~, Title Insurance companies. ~00 NOR~ ~LM ~ %~ (81~ 5~0282 · FAX (81~ , SUITB 101 ~ ~,{ · , DB~( ~N, TE~S 76201 EXHIBIT "B" LAWYERS TITLE INSURANCE CORPORATION PREMIUMS SHALL BE CALCULATED AS FOLLOWS SCHSDULI Of IM~IC PRIMIUM RAilS FOR 11TLI INSURANCl FOR POLICIES IN EXCESS OF f; lO0,OOO Prescribed by the State Board of Insurance of the S~a~ of Texas effecth, e Febfuafl, 1, 1991