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