1995-190 E:\WPDOCS\ORD\CAMP.O
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE MAYOR TO
EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND CAMP, DRESSER
& MCKEE, INC. FOR PROFESSIONAL ENGINEERING SERVICES RELATING TO
ESTA~LISHING A FEE OR CHARGES UNDER WHICH A MUNICIPAL DRAINAGE
UTILITY SYSTEMMAY BE FUNDED; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the Mayor is hereby authorized to execute an
agreement between the City of Denton and Camp, Dresser & McKee,
Inc. for professional engineering services~elating to establishing
a fee or charges under which a municipal ~rainage utility system
may be funded, a copy of which is attached hereto and incorporated
by reference herein.
SECTION II. That the expenditure of funds as authorized by
the attached agreement is hereby authorized.
SECTION III. That this ordinance shall become effective
immediately upon its passage and a~l. ~
PASSED AND APPROVED this the /~ day of , 1995.
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
ENGINEERING SERVICE AGREEMENT
FOR STORMWATER UTILITY IMPLEMENTATION ASSISTANCE
STATE OF TEXAS §
COUNTY OF DENTON §
~HIS~GREEMENT is made and entered into as of the/~~ay of
~~;t, , 1995, by and between the City of Denfon, with its
p~i~dipal' office at 215 E. McKinney Street, Denton, Denton County,
Texas 76201, ("OWNER") and Camp Dresser & McKee, Inc., with its
corporate office at One Cambridge Center, Cambridge, Middlesex
County, Massachusetts 02142, hereinafter called the ("ENGINEER")
acting herein, by and through its representative, duly authorized
so to act for and in behalf of said ENGINEER.
WITNESSETH, that in consideration of the covenants and
agreements herein contained, the parties hereto do mutually agree
as follows:
ARTICLE I
EMPLOYMENT OF ENGINEER
The OWNER agrees to employ the ENGINEER, and the ENGINEER
agrees to perform professional engineering services in connection
with the Project as stated in the sections to follow, and for
having rendered such services, the OWNER agrees to pay to the
ENGINEER compensation as stated in the section to follow.
The Project shall include stormwater utility implementation
assistance. The ENGINEER agrees to exercise the same degree of
care, skill and diligence in the performance of these services as
is ordinarily provided by a professional consultant under similar
circumstances.
ARTICLE II
PERIOD OF SERVICE
This Agreement shall become effective upon execution by the
OWNER and the ENGINEER and shall remain in force for the period
which may reasonably be required for the completion of the Project,
'including Additional Services and any required extensions approved
by the OWNER. This Agreement may be sooner terminated in accor-
dance with the provisions hereof. Time is of the essence and the
ENGINEER shall make all reasonable efforts to complete the services
set forth herein to meet the schedules established by the OWNER.
ARTICLE III
BASIC ENGINEERING SERVICES
The ENGINEER shall render the following professional services
for development of the PROJECT:
Upon execution of this Agreement, the ENGINEER shall perform
the following basic engineering services:
Stormwater Utility Implementation Assistance
TASK 1 EVALUATE AVAILABLE DATA RESOURCES AND UTILITY BILLING
SYSTEM REQUIREMENTS
ENGINEER will coordinate with OWNER to evaluate available data
resources for development of stormwater utility billing system
account information required to assign utility fees to land
parcels. The following data resources will be evaluated:
* Existing utility billing system customer data
* Aerial photographs
* Planimetric maps
* Tax plat maps
* City GIS graphics/data
* U.S. Census Bureau data
ENGINEER will advise OWNER on the use of available data resources
to support the development of stormwater utility customer account
billing data.
ENGINEER will coordinate with OWNER to establish the utility
billing system data management requirements necessary to accommo-
date billings for stormwater utility.
TASK 2 STORMWATERUTILITY CUSTOMER DATA COMPILATIONAND CUSTOMER
BILLING RATE DETERMINATION
ENGINEER will develop an implementation schedule to be followed by
OWNER to meet the January 1, 1996 stormwater utility billing
implementation date. The schedule will specify milestones and
completion dates.
ENGINEER will advise OWNER on procedures to be followed by OWNER
for the compilation of land parcel specific data for input to
stormwater utility customer accounts. This will include training
of City staff on use and interpretation of available data resources
and on field data collection/verification procedures. ENGINEER
will provide a spreadsheet template to OWNER for customer data
compilation for transfer into the utility billing system.
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ENGINEER will review previous studies conducted by OWNER on the
development and implementation of a stormwater utility. ENGINEER
will advise OWNER on the use of available national urban land
parcel impervious area data resources to support the development of
a residential billing unit basis for the City of Denton. ENGINEER
will also review stormwater utility revenue projection/customer
billing rates models developed by OWNER. ENGINEER will advise
OWNER on alternative revenue projection methodologies which may be
more accurate.
OWNER is responsible for the conduct of all City of Denton-specific
land parcel data collection and compilation activities, and for all
utility billing system customer data input activities.
TASK 3 STORMWATER UTILITY DECLARATION AND FEE ORDINANCES
ENGINEER will assist OWNER in the development ordinance language
appropriate for implementation of a stormwater utility for the City
of Denton consistent with the requirements of the Texas Municipal
Drainage Utility Systems Act (Texas Local Government Code,
Subchapter C, Chapter 402). ENGINEER will provide draft language
which addresses the following issues:
* Utility revenue enterprise fund management
* Utility declaration/service area
* Customer class definitions
* Fee basis and calculation
* Fee adjustments
* Fee exemptions
* Customer appeals procedures
* Recovery of non payment of fees
OWNER is responsible for finalizing ordinances and providing any
legal services.
TASK 4 MEETINGS, STAFF COORDINATION, AND PRESENTATIONS
ENGINEER will conduct a project initiation workshop with key City
of Denton personnel to describe the activities which must be
completed by OWNER, provide guidance for the activities to be
completed by OWNER, to coordinate with the OWNER on the evaluation
of available data resources and to present the project work
schedule.
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ENGINEER will meet with owner for six (6) hours up to two (2) times
during the project duration to provide on-site consultation
assistance. ENGINEER will provide up to 10 hours of telephone
consultation.
ENGINEER will attend up to two (2) public meetings/hearings
associated with the adoption of the utility declaration and fee
ordinance. ENGINEER will prepare presentation graphics and be able
to make oral presentations at these meetings/hearings.
OWNER is responsible for organizing public meetings/hearings.
ARTICLE IV
ADDITIONAL SERVICES
Additional services to be performed by the ENGINEER, if
authorized by the OWNER, which are not included int he above
described basic services, are described as follows:
A. Refinement of stormwater utility rate policy and customer
billing rates.
B. Stormwater utility budget planning and covenant documen-
tation for revenue bond financing of drainage system
facility improvements.
C. Regulatory Assistance. During the course of the project,
as requested by OWNER personnel, the ENGINEER will be
available to accompany OWNER personnel when meeting with
the Texas Natural Resource Conservation Commission, U.S.
Environmental Protection Agency, or other regulatory
agencies. The ENGINEER 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.
D. Assisting OWNER Or Contractor in the defense or prosecu-
tion of litigation in connection with or in addition to
those services contemplated by this Agreement. Such
services, if any, shall be furnished by ENGINEER on a fee
basis negotiated by the respective parties outside of and
in addition to this Agreement.
E. Sampling, testing or analysis beyond that specifically
included in Basic Services.
F. Investigations involving detailed consideration of
operation, maintenance and overhead expenses, and the
preparation of rate schedules, earnings and expense
statements, feasibility studies, appraisals, evaluations,
assessment schedules, and material audits or inventories
required for certification of force account construction
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performed by the OWNER.
G. Preparing copies of Computer Aided Drafting (CAD)
electronic data bases, drawings, or files for the OWNER's
use in a future CAD system.
H. Preparing applications and supporting documents for
government grants, loans, or planning advances and
providing data for detailed applications.
I. 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.
J. Providing geotechnical investigations for the site
including soil borings, related analyses and recommenda-
tions.
K. Any additional services required by the OWNER not
included in Basic Services.
ARTICLE V
RESPONSIBILITIES OF OWNER
The OWNER shall do the following in a timely manner so as not
to unreasonably delay the services of the ENGINEER:
A. Designate in writing a person to act as the OWNER's
representative with respect to the services to be
rendered under this Agreement. Such person shall have
contract authority to transmit instructions, receive
information, interpret and define the OWNER's policies
and decisions with respect to the ENGINEER's services for
the Project.
B. Shall consult with the ENGINEER regarding requirement for
the Project, including (1) the OWNER's contemplated
objectives and (2) schedule and design constraints and
criteria.
C. OWNER is responsible for the conduct of all City of
Denton-specific land parcel data collection and compila-
tion activities, and for the conduct of all utility
billing system customer data input activities.
D. Assist the ENGINEER by placing at the ENGINEER's disposal
all available information pertinent to the Project
including previous reports and any other data relative to
the Project.
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E. Arrange for access to, and make all provisions for the
ENGINEER to enter upon, public and private property as
required for the ENGINEER to perform services under this
Agreement.
F. Examine all studies, reports, sketches, drawings,
specifications, proposals and other documents presented
by the ENGINEER, obtain on the OWNER's behalf advice of
an attorney, insurance counselor and other consultants as
the OWNER deems appropriate for such examination and
render in writing decisions pertaining thereto within a
reasonable time so as not to unreasonably delay the
services of the ENGINEER.
G. Furnish approvals and permits from all governmental
authorities having jurisdiction over the Project and such
approvals and consents from others as may be necessary
for completion of the Project.
H. Obtain as necessary for OWNER's benefit, and at OWNER's
sole discretion such accounting, independent cost
estimating and insurance counseling services as may be
required for the Project, such legal services as the
OWNER may require with regard to legal issues pertaining
to the Project.
I. Give prompt written notice to the ENGINEER whenever the
OWNER observes or otherwise becomes aware of any develop-
ment that affects the scope or timing of the ENGINEER's
services.
J. Provide transportation such as airline fare, automobile
rental or subsistence required for the OWNER's personnel
to attend project meetings or inspection trips.
K. Bear all costs incident to compliance with the require-
ments of this Article V.
ARTICLE VI
COMPENSATION
A. COMPENSATION TERMS:
1. "Subcontract Expense" is defined as the expense that is
incurred by the ENGINEER in employment of others in
outside firms for services.
2. "Direct Non-Labor Expense" is defined as that expense for
any assignment incurred by the ENGINEER for supplies,
transportation and equipment, travel communications,
subsistence and lodging away from home and similar
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incidentals in connection with that assignment.
B. BASIC SERVICES:
For and in consideration of Stormwater Utility Implemen-
tation Assistance services of the Basic Services (Article
III) to be rendered by the ENGINEER, the OWNER agrees to
pay based on the Cost Estimate Detail shown in Exhibit A,
with the total lump sum fee of $23,795.
Partial payments to the ENGINEER will be made on the
basis of monthly statements rendered to and approved by
the OWNER; however, under no circumstances shall any
monthly statement for services exceed the value of work
performed at the time a statement is rendered. The OWNER
may withhold the final 5 percent of the contract amount
until completion of the project.
Nothing contained in this article shall require the City
to pay for any work which is unsatisfactory as reasonably
determined by the Executive Director of Utilities 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 ENGINEER when the ENGINEER is in
default under this Contract.
It is specifically understood and agreed that the
ENGINEER 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 reim-
bursement above the maximum fee as stated without having
first obtained written authorization from the OWNER.
ENGINEER shall not proceed to perform the services listed
in Article IV Additional Services, without obtaining
prior written authorization from OWNER.
C. ADDITIONAL SERVICES
For additional services authorized in writing by the
OWNER in Article IV, the ENGINEER shall be paid based on
the Schedule of Charges shown in Exhibit A. Payments for
additional services shall be due and payable upon
submission by the ENGINEER. Statements shall not be
submitted more frequently than monthly.
D. PAYMENT
If the OWNER fails to make payments due the ENGINEER for
services and expenses within sixty (60) days after
receipt of the ENGINEER's statement therefore, the
amounts due the ENGINEER will be increased at the rate of
1 percent (1%) per month from said sixtieth (60th) day,
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and in addition, the ENGINEER may, after giving seven (7)
days' written notice to the OWNER, suspend services under
this Agreement until the ENGINEER has been paid in full
all amounts due for services, expenses and charges.
Provided, however, nothing herein shall allow ENGINEER to
suspend services or to impose the late charge set forth
herein when payments are withheld under Article VI B.
"Basic Services" or are not made due to a determination
by the Executive Director of Utilities that the work for
which the payment is submitted is unsatisfactory. Any
applicable new taxes imposed upon services, expenses, and
charges by any governmental body after the execution of
this contract will be added as necessary to the EN-
GINEER's compensation.
ARTICLE VII
OBSERVATION AND REVIEW OF THE WORK
The ENGINEER will exercise reasonable care and due diligence
in discovering and promptly reporting to the OWNER any defects or
deficiencies in the work of the ENGINEER or any subcontractors.
ARTICLE VIII
OWNERSHIP OF DOCUMENTS
Ail documents prepared or furnished by the ENGINEER (and
ENGINEER's independent associates and consultants) pursuant to this
Agreement shall become the property of the OWNER upon termination
of this agreement. The ENGINEER may make and retain copies for
information and reference; however, such documents are not intended
or represented to be suitable for reuse by the OWNER or others.
Any reuse by the OWNER on other projects unrelated to this project
will be at the OWNER's sole risk and without liability or legal
exposure to the ENGINEER, or to the ENGINEER's independent
associates or consultants.
ARTICLE IX
INDEMNITY/INDEPENDENT CONTRACTOR
The ENGINEER shall perform all services as an independent
contractor not under the direct supervision and control of the
City. The ENGINEER shall indemnify and save harmless the OWNER and
its officers, agents, and employees from the liability of the OWNER
on account of any injuries or damages received or sustained by any
person or persons or property, bodily injury, property damage,
including court costs and reasonable attorneys fees incurred by the
OWNER, proximately caused by the negligent acts or omissions of the
ENGINEER or its officers, shareholders, agents, or employees in the
execution, operation, or performance of this Agreement. Nothing
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herein constitutes a waiver of any rights or remedies the City may
have to pursue any remedies it may have, at law or equity,
resulting in losses to the City proximately caused by ENGINEER's
negligent acts or omissions.
ARTICLE X
INSURANCE
During the performance of the Services under this Agreement,
ENGINEER shall maintain the following insurance issued by Best
Rated Carriers, with a rating of A or A+, approved to do business
in Texas by the State Insurance Commission and shall name OWNER as
an additional insured on all such policies:
A. Comprehensive General Liability Insurance with bodily
injury limits of not less than $500,000 for each occur-
rence and not less than $500,000 in the aggregate, and
with property damage limits of not less than $100,000 for
each occurrence and not less than $100,000 in the
aggregate.
B. Automobile Liability Insurance 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
limits for not less than $100,000 for each accident.
C. Worker's Compensation Insurance in accordance with
statutory requirements and Employers' Liability Insurance
with limits of not less than $100,000 for each accident.
D. Professional Liability Insurance with limits of not less
than $1,000,000 annual aggregate.
E. The ENGINEER shall furnish insurance certificates to
evidence such coverages. The certificates shall contain
a provision that such insurance shall not be canceled or
changed without 30 days prior written notice to OWNER.
In the event of any cancellation or material change in
policy, prior to the effective date of such change or
cancellation, ENGINEER shall provide substitute policies
providing the same coverage.
ARTICLE XI
ARBITRATION
No arbitration arising out of, or relating to, this Agreement
involving one party to this Agreement may include the other party
to this Agreement without the other's approval.
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ARTICLE XII
TERMINATION OF CONTRACT
This Agreement may be terminated by either party upon thirty
(30) days' written notice. In the event of any termination, the
ENGINEER shall immediately cease all services hereunder and will be
paid for all services properly rendered and reimbursable expenses
incurred to the date of termination and, in addition, all reimburs-
able expenses directly attributable to termination. Should the
City subsequently contract with a new Consultant for continuation
of services on the Project, the ENGINEER shall cooperate in
providing information.
ARTICLE XIII
SUCCESSORS AND ASSIGNMENTS
The OWNER and the ENGINEER each are hereby bound and the
partners, successors, executors, administrators and legal represen-
tatives of the OWNER and the ENGINEER are hereby bound to the other
party to this Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of such
other party, in respect of all covenants, agreements and obliga-
tions of this Agreement.
Neither the OWNER nor the ENGINEER shall assign, sublet or
transfer any rights under or interest in (including, but without
limitation, moneys that may become due or moneys that are due) this
Agreement without the written consent of the other, except to the
extent that any assignment, subletting or transfer is mandated by
law or the effect of this limitation may be restricted by law.
Unless specifically stated to the contrary in any written consent
to an assignment, no assignment will release or discharge the
assignor from any duty or responsibility under this Agreement.
Nothing contained in this paragraph shall prevent the ENGINEER from
employing such independent associates and consultants as the
ENGINEER may deem appropriate to assist in the performance of
services hereunder.
Nothing under this Agreement shall be construed to give any
rights or benefits in this Agreement to anyone other than the OWNER
and the ENGINEER, and all duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and exclusive
benefit of the OWNER and the ENGINEER and not for the benefit of
any other party. This Agreement, consisting of pages 1 to 13 with
Exhibits as listed in Article XVI, constitutes the entire Agreement
between the OWNER and the ENGINEER and supersedes all prior written
or oral understandings. This Agreement may only be amended,
supplemented, modified or canceled by a duly executed written
instrument.
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ARTICLE XIV
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Approval by the City shall not constitute nor be deemed a
release of the responsibility and liability of the ENGINEER, its
employees, associates, agents, and consultants 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
ENGINEER, its employees, subcontractors, agents and consultants.
ARTICLE XV
NOTICES
Ail notices, communications, and reports re~lired or permitted
under this Contract shall be personally delivered or mailed to the
respective parties by depositing same in the United States mail at
the addresses shown below, certified mail, return receipt requested
unless and until either party is otherwise notified in writing by
the other party at the following addresses. Mailed notices shall
be deemed communicated as of three days mailing.
If intended for the OWNER, to: City of Denton
Attn: Robert E. Nelson, P.E.
Executive Director for Utilities
215 East McKinney Street
Denton, TX 76201
If intended for the ENGINEER to: Camp Dresser & McKee Inc.
Attn: George E. Oswald, P.E.
8911 Capital of Texas Highway
Suite 4240
Austin, TX 78759
ARTICLE XVI
A. The following exhibits are attached to .and made a part of
this Agreement:
EXHIBIT A - Cost Estimate Detail
B. A waiver by either the ENGINEER or the City of any breach
of a provision of this contract shall not be binding upon
the waiving party unless such waiver is in writing in the
event of a written waiver, such a waiver shall not affect
the waiving party's rights with respect to any other or
future breach.
C. Upon termination of this Agreement, ENGINEER shall
provide OWNER with all completed or partially completed
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engineering documents, reports or data prepared under
this AGREEMENT.
D. ENGINEER agrees that OWNER shall, until the expiration of
three (3) years after final payment under this Agreement,
have access to and the right to examine any directly
pertinent books, documents, papers and records of the
ENGINEER involving transactions relating to this Agree-
ment. ENGINEER agrees that OWNER shall have access
during normal working hours to all necessary ENGINEER
facilities and shall be provided adequate and appropriate
work space in order to conduct audits in compliance with
the provisions of this section. OWNER shall give
ENGINEER reasonable advance notice of intended audits.
E. Venue of any suit or cause of action under this Agreement
shall exclusively lie in Denton County, Texas.
F. In performing the services required hereunder, the
ENGINEER shall not discriminate against any person on the
basis of race, color, religion, sex, natural origin or
ancestry, age, or physical handicap.
G. ENGINEER will secure its own personnel to perform all
services required under this Agreement who shall be fully
qualified to perform such services.
H. The captions of this Agreement are for informational
purposes only and shall not affect the substance terms or
conditions of this Agreement.
This contract is executed in four counterparts.
CITY OF DENTON, TEXAS
BOB CAST
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
CAMP DRESSER & McKEE INC.
P.E., Vice President
WITNESS:
E:\WPDOCS\K\CAMPDRE.K
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