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1997-309AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AOREEMENT FOR ENVIRONMENTAL CONSULTING WITH YORK ENVIRONMENTAL SERVICES ON CERTAIN PARCELS OF LAND FOR RIGHT-OF-WAY EXPANSION OF U S HIGHWAY 77, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, ~t is necessary to obtain the services of quahfied enwronmental professionals to evaluate potentml enwronmental hazards and concerns on fifty-seven parcels of land prescribed for right-of-way expansion ofU S Highway 77, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS SECTION I That the City Manager is authorized to execute a Professional Services Agreement for environmental evaluation and consulting with York Enwronmental Services on fifty-seven parcels of land for right-of-way expansion for U S Highway 77, substantially ~n the form of the contract which is attached to and made a part of th~s ordinance for all purposes SECTION II That the City Manager is author, zed to make the expenditures as set forth ~n the attached Agreement SECTION III That th~s ordinance shall become effecuve ~mmedlately upon ~ts passage and approval ~L~ PASSED AND APPROVED thxs the ~ / ~ dayof 0~-0~'~ ,1997 JACK MILLER, MAYOR JENNIFER WALTERS, CITY SECRETARY At~o-V'~D ~ TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY e \docs\ord\york environmental PROFESSIONAL SERVICES AGREEMENT FOR ENVIRONMENTAL CONSULTING STATE OF TEXAS § COUNTY OF DENTON § ~, 1997, by and between the City of Denton, Texas~ mume~pal corporatl0n, with its pnnclpal office at 215 East McKarmey Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and York Environmental Services, w~th ~ts corporate office at P O Box 256, Myra, Texas 76253, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives WHEREAS, it ~s necessary to obtmn the servmes of a qualified environmental professional to evaluate potenttal environmental hazards and concerns on fifty-seven parcels of land prescribed for expansion ofU S Highway 77, WITNESSETH, that in consideration of the covenants and agreements herein contmned, the parties hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts wath the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein ~n connection w~th the ProJect as stated in the sections to follow, w~th dd~gence and ~n accordance wath the h~ghest professional standards customarily obtmned for such servmes ~n the State of Texas The professional services set out herein are m connecuon with the following described project Enwronmental assessment on fifty-seven (57) parcels of land for w~demng of U S H~ghway 77 SCOPE OF SERVICES The CONSULTANT shall perform the followmg serwces in a professional manner A To perform all those services set forth m CONSULTANT's letter proposal of August 22, 11997, which proposal is attached hereto and made a part hereof as Exhibit "A" as if written word for word hereto B CONSULTANT shall perform all those servmes set forth m lndlwdual task orders, l~' any, wlueh shall be attached to this Agreement and made a part hereof for all purposes as separate agreements C If there as any conflmt between the terms of thxs Agreement and the exhabats attached to this Agreement, the terms and condmons of this Agreement will control over the terms and condmons of the attached exhab~ts or task orders ARTICLE III PERIOD OF SERVICE This Agreement shall become effectave upon executaon of thas Agreement by the OWNER and the CONSULTANT and upon issue of a notme to proceed by the OWNER, and shall remain m force for the period whach may reasonably be reqmred for the completion of the ProJect, including Additional Services, ff any, and any reqmred extensions approved by the OWNER Thxs Agreement may be sooner terminated tn accordance with the prows~ons hereof Txme xs of the essence m thxs Agreement The CONSULTANT shall make all reasonable efforts to complete the serwees set forth hereto as expeditiously as possxble and to meet the schedule established by the OWNER, acting through ~ts City Manager or his desxgnee ARTICLE IV COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" ~s defined as expenses recurred by the CONSULTANT ~n employment of others an outside firms for services ~n the nature of environmental consultang 2, "Direct Non-Labor Expense" is defined as that expense for any assxgnment recurred by the CONSULTANT for supphes, transportation and eqmpment, travel, commtmlcataons, subsistence, and lodging away from home, and srmflar mcadental expenses m connectaon wxth that assagnment B BILLING AND PAYMENT For and m cons~deratxon of the professxonal services to be performed by the CONSULTANT hereto, the OWNER agrees to pay, based on the cost estxmate detail at an hourly rate shown m Exhxbxt "C" which ~s attached hereto and made a part of this Agreement as ff written word for word herexn, a total fee, mcludang reimbursement for direct non-labor expenses not to exceed $35,000 00 Partaal payments to the CONSULTANT wall be made on the basis of detmled monthly statements rendered to and approved by the OWNER through xts C~ty Manager or hxs designee, however, under no circumstances shall any monthly statement for servaces exceed the value of the work performed at the time a statement as rendered The OWNER may wxthhold the final five percent (5%) of the contract amount untd completxon of the ProJect Nottung contmned an thas Artacle shall reqmre the OWNER to pay for any work whach ~s unsatisfactory, as reasonably determined by the C~ty Manager or his desxgnee, or whach ~s Page 2 not submatted an comphance wath the terms ofthas Agreement The OWNER shall not be reqmred to make any payments to the CONSULTANT when the CONSULTANT as ~n default under thas Agreement It as specafieally understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to th~s Agreement wlueh would requare addataonal payments by the OWNER for any charge, expense, or reambursement above the maramum not to exceed fee as stated, vathout first havang obtained wratten authorization from the OWNER The CONSULTANT shall not proceed to perform the servmes lasted an Artmle III "Addataonal Servaees," w~thout obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES For add~taonal servaces authorized m writing by the OWNER an Artmle III, the CONSULTANT shall be prod based on the Schedule of Charges at an hourly rate shown an Exbab~t "C" Payments for addmonal servaces shall be due and payable upon submission by the CONSULTANT, and shall be an accordance with subseetaon B hereof Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER farls to make payments due the CONSULTANT for servmes and expenses w~thm saxty (60) days after receapt of the CONSULTANT's undasputed statement thereof, the amounts due the CONSULTANT will be ~nereased by the rate of one percent 0%) per month from the smd saxueth (60th) day, and, an adtht~on, the CONSULTANT may, after gavmg seven (7) days' written notate to the OWNER, suspend servaces under this Agreement until the CONSULTANT has been prod an full all amounts due for services, expenses, and charges, provaded, however, nothing herean shall reqmre the OWNER to pay the late charge of one percent (1%) set forth here~n ff the OWNER reasonably determmas that the work as unsatisfactory, ~n accordance wath thas Amcle V, "Compensation" ARTICLE V OBSERVATION AND REVIEW OF THE WORK The CONSULTANT wall exercise reasonable care and due diligence in dascovenng and promptly reportmg to the OWNER any defects or defimenc~es an the work of the CONSULTANT or any subcontractors or subconsultants ARTICLE VI OWNERSHIP OF DOCUMENTS All documents prepared or furmshed by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to th~s Agreement are anstruments of service, and shall become the property of the OWNER upon the termanataon of this Agreement The CONSULTANT ~s entitled to retmn copaes of all such documents The documents prepared and fumashed by the CONSULTANT are intended only to be apphcable to thas ProJect, and OWNER's use of these documents an other projects shall be at OWNER's sole risk and expense P~e3 In the event the OWNER uses any of the anformatlon or materials developed pursuant to this Agreement m another project or for other purposes than specified herein, CONSULTANT Is released from any and all liability relating to their use m that project ARTICLE VII INDEPENDENT CONTRACTOR CONSULTANT shall provide servmes to OWNER as an independent contractor, not as an employee of the OWNER 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 OWNER and its officers, agents, and employees from and agmnst any and all liability, claims, demands, damages, losses, and expenses, including, but not hmlted to court costs and reasonable attorney fees meurred 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 ~ts officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement Nothing in th~s 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 parties' 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 lmmumty, which defenses are hereby expressly reserved ARTICLE IX INSURANCE Dunng the performance of the services under this Agreement, CONSULTANT shall ma~ntmn the following insurance w~th an ~nsurance company licensed to do business in the State of Texas~ by the State Insurance Commission or any successor agency that has a ranng w~th Best Rate Careers of at least an A- or above A Automobile Llabahty Insurance with bodily injury limits of not less than $50,000 for each person and not less than $100,000 for each aemdent, and vath property damage hmlts of not less than $50,000 for each accident B l~rofesslonal Llabthty Insurance with limits of not less than $1,000,000 annual aggregate C 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 insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written Page 4 notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute pohcaes fum~shang the same coverage ARBITRATION AND ALTERNATE BISPUTE RESOLUTION The parties may agree to settle any dasputes under th~s Agreement by submlttxng the daspute to arbitration or other means of alternate daspute resolution, such as medmtxon No arb~trataon or alternate daspute resolution arising out of or relating to tlus Agreement, anvolwng one party's disagreement, may include the other party to the dasagreement wathout the other's approval ARTICLE XI TERMINATION OF AGREEMENT A Notwithstanding any other provas~on of thas Agreement, e~ther party may terminate by gtwng tharty (30) days' advance written notace to the other party B Th~s Agreement may be tenmnated m whole or an part in the event of eather party substantmlly fathng to fulfill xts obhgatlons under thas Agreement No such termination will be affected unless the other party as gtven (1) written notme (dehvered by certafied mml, return receipt requested) of intent to tenmnate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure, and (2) an opportunity for consultatton wath the tenmnatang party prior to termination C If the Agreement as termtnated prior to completmn of the servmes to be provaded hereunder, CONSULTANT shall ~mmed~ately cease all services and shall render a final bill for serwces to the OWNER w~tlnn thirty (30) days after the date of termmatmn The OWNER shall pay CONSULTANT for all serwces properly rendered and satasfantonly performed and for reambursable expenses to terra,natron ~ncurred prior to the date of terra,natron, an accordance wtth Article IV "Compensatmn" Should the OWNER subsequently contract w~th a new consultant for the contanuatmn of servmes on the ProJect, CONSULTANT shall cooperate ~n provadmg anformatmn The CONSULTANT shall turn over all documents prepared or furmshed by CONSULTANT pursuant to th~s Agreement to the OWNER on or before the date of terra,natron, but may mmmmn cop~es of such documents for as use ARTICLE 3111 RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constatute, nor be deemed a release of the respons~bd~ty and habthty of the CONSULTANT, ~ts employees, assocmtes, agents, subcontractors, and subconsultants for the accuracy and competency of thear designs or other work, nor shall such approval be deemed to be an assumptmn of such respons~b~hty by the Page 5 OWNER for any defect m the design or other work prepared by the CONSULTANT, its employee~, subcontractors, agents, and consultants NOTICES All notices, commtmmatxons, and reports required or permitted under th~s Agreement shall be personally dehvered or mailed to the respective part,es by depositing same ~n the Untted States mall to the address shown below, certified mall, return receipt requested, unless otherv~se speclfied~hereln Mmled nottces shall be deemed commun~cated as ofthree (3) days' mmlmg To CONSULTANT To OWNER C Ed York City of Denton York Enmronmental Services Roger Wlllanson, Right-of-Way Agent P O Box 256 215 East McKlnney Myra, Texas 76253 Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such noUce is g~ven, or w~ttun three (3) days' mmhng ARTICLE XIV ENTIRE AGREEMENT Thxs Agreement, consisting of 9 pages and 1 exhibit, constitutes the complete and final expressl0n of the agreement of the parties, and xs intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotmttons, d~scusslons, communications, and agreements which may have been made m connection vath the subject matter hereof SEVERABILITY If any pmws~on of th~s Agreement is found or deemed by a court of competent jurlsd~ctxon to be mvahd or unenfomeable, ~t shall be consxdered severable from the remmnder of th~s Agreement and shall not cause the remmnder to be invalid or unenforceable In such event, the pames shall reform thxs Agreement to replace such stricken prows~on w~th a vahd and enforceable prowslon whmh comes as close as possible to expressing the intention of the stricken provision COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, roles, regulations, and ordinances apphcable to the work covered hereunder as they may now read or hereinafter be amended Page 6 ARTICLE XVII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate agmnst any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all pcrsounel reqmred 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 OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise dunng the term of this Agreement B All services required hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged m 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 m this Agreement, and shall not transfer any interest m this Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the OWNER ARTICLE XX MODIFICATION No wmver or modification of this Agreement or of any covenant, condition, or limitation herein contmned shall be valid unless in wrmng and duly executed by the party to be charged therewith, and no evidence of any watver or modification shall be offered or received ~n evidence in any proceeding arising between the parties hereto out of or affecting flus Agreement, or the rights or obligations of the parties hereunder, and unless such wmver or modification is in writing and duly executed, and the parties further agree that the provisions of this secuon will not be waived unless as set forth herein MISCELLANEOUS A The followmg exhibits are attached to and made a part of this Agreement (hst exhtblts) B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under fins Agreement, have access to and the right to examine any Page 7 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 faethtles and shall be provided adequate and appropriate working space in order to conduct audits in comphance w~th flus 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 the work hereunder shall be C Ed York However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects w~th all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated w~th related work being camed 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 thereto, and make all provisions for the CONSULTANT to enter in or upon pubhe 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 flus Agreement IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT_has executed this 4,greement throu h~its duly authorized undersigned officer on this the (~/.~_L day of /Qta~D~/'~ , CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER P~e8 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS~O LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY CONSULTANT York Env~onmental Services WITNESS E \DOCSkK\YORK ENVIRONMENTAL SERVICES Page 9 EXHIBIT A York Environmental Services 505 N Maple Street Muenster, Texas 76252 (940) 736-2392 FACSIMILE No Pages. 4 August 22, 1997 Mr Roger N Wilkinson FAX (940)349-7707 City of Denton 221 N Elm Street Denton, Texas 76201 Subject Cost Estmaate - U S 77 Plan of Proposed Right of Way Fifty-seven (57) Prescribed ROW Parcels TX DOT Environmental Checl~hst Dear Mr Wilkinson, L~sted below is our cost estmaate for perfonmng a total of fifty-seven (57) environmental assessments on parcels of land prescribed for right of way expansion for U S h~ghway 77 All assessments will be ~n accordance w~th the Texas Department of Transportation Enwronmental Checldlst Estimated costs are based on the drawmgs provided dunng our meeting on August 13, 1997 and on the number of hours required to perform each of Parts 1 through 6 of the checkhst for small tracts (less than 1 0 acre), medmm size tracts (between 1 0 acre and 3 0 acres) and large tracts (over 3 0 acres) Twenty-s~x (26) right of way parcels are prescribed for small tracts less than one acre m original s~ze The followmg tracts are figured m this category 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 30, 31, 32, 37, 43, 48, 49, 50, 51, 53, 54, 55, and 56 Costs for these parcels are Part No Description Hours Cost* 1 Current Land Use 0 5-1 0 $ 45 00 2 Property Other Uses 3 0-4 0 180 00 3 S~te Observations 0 5-1 0 45 00 Roger Wilkinson Page 2 City of Denton 4 Transformers, etc (part of 3) (see part 3) 5 Lead, Asbestos (part of 3) (see part 3) 6 1/2 mile actlwtles 2 0-3 0 135 00 SUBTOTAL $ 405.00 TOTAL (26 parcels @ $405.00) . . . $10,530.00 * Costs are based on maximum estimated tune required to perform each task Eight (8) right of way parcels are prescribed for medmm s~zed tracts between one (1) and three (3) acres m size Parcels included m this category are 8A-B, 35, 36, 40, 41, 42, 44, and 62 Estimated costs for these parcels are Part No Descrmtton Hours Cost* 1 Current Land Use 0 5-1 0 $ 45 00 2 Property Other Uses 3 0-4 0 180 00 3 Site Observations 1 0-2 0 90 00 4 Transformers, etc (part of 3) (see part 3) 5 Lead, Asbestos (part of 3) (see part 3) 6 1/2 mile activities 3 0-4 0 180 00 SUBTOTAL $ 495.00 TOTAL (8 parcels t~ $495.00) ...... $ 3,960.00 * Costs are based on maximum estunated t~me required to perform each task Twenty-three (23) right of way parcels are prescribed from large tracts greater than three (3 0) acres m size These parcels include 1, 2, 3, 4-1 & 4-2, 5, 6A & 6AE & 6B, 7, 10, 9- 1 & 9-2, 11, 12, 13 & 13E, 14, 29, 33A, 33B, 33D, 33F, 33G, 34, 38, 52 and 57 Roger Wilkinson Page 3 City of Denton Estimated costs to perform these assessments are Part No Descrmuon Hours Cost* 1 Current Land Use 0 5-1 0 $ 45 00 2 Property Other Uses 3 0-4 0 180 00 3 Site Observations 2 0-3 0 135 00 4 Transformers, etc (part of 3) (see part 3) 5 Lead, Asbestos (part of 3) (see part 3) 6 1/2 mile actxwtles4 0-5 0 225 00 SUBTOTAL $ 585.00 TOTAL (23 parcels @ $585.00) .... $13, 455.00 * Costs are based on maxmmm esUmated tmae reqmred to perform each task The total, costs for performing environmental s~te assessments per the Texas Department of Transportation Enwromental Checkhst on all prescribed right of ways pamels ~s $27,945 00 Costs include preparation and subunttal of the Enwronmental Checkhst and letter of transmxttal for each parcel Note that the t~me esttmated for a portmn of Part 1 and Parts 3, 4 and 5 are based on the time reqmred to perform sxte recom~a~ssance, ~ e nme on locatmn A pomon of Part 1 and all of Part 2 will reqmre use of past tax records and examination of Denton County deed records m order m determme property use over the past approxmaately 60 years were possible Costs assocmted wxth Part 2 are somewhat constant Part 6 of the Enmronmental Checkhst reqmres a record search of local, state and federal databases to determine present and possible past actlWtleS which may pose potentml enwronmental concerns for the subject property Reconnaissance m the wc~mty of the s~tes ~s also conducted to locate act~wUes or remnants of past act~wttes whmh may unpact the subject property Please understand that the tune esmnated for performing each part of the checkhst ~s based Roger Wilkinson Page 4 City of Denton on the cumulauve knowledge gamed from one parcel to the next In as much, ff each parcel were assessed independently, the cost would be h~gher Therefore th~s cost estimate ~s vahd only m ~ts entirety Separate stand alone b~ds can be submitted for specific parcels if necessary We are ready to begin the environmental assessments ~mmedmtely It is estimated that three (3) to five (5) parcels can be assessed per week The entire project could be completed ~n 12 to 20 weeks Thank you for allowing me to be of service Please call me at (940) 736-2392 (home office) or (214) 808-8631 (mobile) If I you have any questions or if I can be of further assistance I look forward to working with you and the City of Denton Sincerely Yours, Certified Enwronmental Spec~ahst York Enwronmental Services Member of the Envtronmental Assessment Assoctat~on