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