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1993-083E:\WPD0CS\0RD\TRIAD.0 ORDINANCE NO. q j - 6) U~ AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH TRIAD ONSITE SYSTEMS, INC. FOR ASBESTOS REMOVAL CONSULTING SERVICES RELATED TO THE RENOVATION OF THE DENTON MUNICIPAL COMPLEX; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the City Manager is hereby authorized to execute an agreement with Triad Onsite Systems, Inc. for asbestos removal consulting services related to the renovation of the Denton Municipal Complex, a copy of which is attached hereto and incorpor- ated by reference herein. SECTION II. That the City Council hereby authorizes the expen- diture of funds in the manner and amount as specified in the agree- ment. SECTION III. That this ordinance shall become effective imme- diately upon its passage and approval. PASSED AND APPROVED this theL day of 1993. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Lc t c L~clli APPROVED AS TO LEGAL FORM: DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY j~ BY. lxJ e:\wpdocs\k\triad.k AGREEMENT FOR CONSULTING SERVICES THIS CONTRACT, is made this day of , 1993, between Triad Onsite Systems, Inc., 6415 Cedar Springs Road, P. O. Box 36286, Dallas, Texas 75235-1286, hereinafter referred to as "CONSULTANT," and the City of Denton, Texas, 215 E. McKinney, Denton, Texas 76201, hereinafter referred to as "CITY." WHEREAS, the CITY requires certain consulting services and activities, and WHEREAS, the CONSULTANT possesses knowledge, experience and technical resources to provide certain consulting services and activities; NOW THEREFORE, CITY hereby engages CONSULTANT and CONSULTANT hereby agrees to perform certain consulting services as described herein on the terms and conditions set out herein. ARTICLE I 1.1 DEFINITIONS The terms defined in this Section 1.1, for all purposes of this Agreement and of each Article hereof, shall have the same meanings herein specified unless the context expressly or by necessary implication otherwise requires. (1) "AGREEMENT" and "CONTRACT" shall mean this instrument, including EXHIBIT A which is attached hereto and made a part hereof, as originally executed and delivered, or if amended and supplemented, then as amended or supplemen- ted. In the event of any conflict between the terms of Exhibit A and the terms of this Agreement, the latter shall prevail. (2) "SERVICES" shall mean the various functions CONSULTANT must perform in connection with the Planned Activity hereinafter referred to as "Planned Activity," to fulfill the obligations under this CONTRACT. 1.2 SERVICES CONSULTANT agrees to perform the SERVICES on the CITY's prop- erties pursuant to purchase orders issued by CITY sufficient- ly describing all services, materials and equipment and work to be performed. All SERVICES shall be performed in accord- ance with good, sound practice in the business in which CONSULTANT is engaged. 1.3 1.4 1.5 1.6 CITY-CONSULTANT RELATIONSHIP Nothing contained in the CONTRACT shall be deemed to consti- tute CONSULTANT as the agent or representative of CITY for any purpose whatsoever and CONSULTANT shall be an independent contractor at all times while acting hereunder. COMPLIANCE WITH LAW During the performance of all the SERVICES herein provided for, CONSULTANT shall at all times comply with any and all laws and any and all rules, regulations, and orders of public authority applicable thereto, whether federal, state, or local, and federal and state social security laws. SAFETY CONSULTANT shall be responsible for the safety of its person- nel, subcontractors, and agents, related to and during the prosecution of SERVICES. TIME SCHEDULE CONSULTANT shall complete the SERVICES as specified in the time schedule, if any, set forth in Exhibit A; or if none is specified, then in accordance with the following: CONSULTANT shall not be liable for delays resulting from:. (a) Delays by CITY in furnishing information; (b) Additions to and/or changes in the scope of work for the Planned Activity. (c) Circumstances out of CONSULTANT'S control. 1.7 CITY'S ACCESS TO AND REVIEW OF WORK CONSULTANT shall at all times keep CITY apprised of the status of the Planned Activity and of any delays, changes or unforeseen events encountered. CITY shall have reasonable rights of access to the site of the Planned Activity, to the extent such access is available to CONSULTANT. The CONSUL- TANT shall turn over to the CITY all such work done and pro- duct made upon request of the CITY at any time during the progress of the work or upon the expiration or termination of the work to be performed, with a reasonable time allowed to accomplish such work. PAGE 2 1.8 DATA GENERATED BY CONSULTANT TO BE DELIVERED TO AND OWNED BY CITY All data, studies, technology, know-how and the like, re- lating to the activity, which shall be generated by the CONSULTANT, shall be the sole property of the CITY and shall be owned by the CITY, except that the CITY recognizes the CONSULTANT'S right to use such data, studies, technology, know-how and the like which are in the public domain through no violation of this AGREEMENT or fault of the CONSULTANT. The CONSULTANT agrees upon request or upon termination of this AGREEMENT to deliver or cause to be delivered to the CITY any and all such proprietary data, studies, technology and know-how and copies of any and all such non-proprietary (available to public) data, studies, technology and know-how generated hereunder. 1.9 TECHNICAL INFORMATION The CONSULTANT agrees to keep confidential and not to dis- close to any third party, unless such disclosure is author- ized in writing by the CITY or is authorized or ordered by a court of competent jurisdiction, or use for any purpose other than in connection with the performance of work, any techni- cal information which is disclosed to it by the CITY or which comes to the CONSULTANT'S attention or which the CONSULTANT develops or acquires in the course of performance of work hereunder, except such technical information as (1) was known to the CONSULTANT prior to , or (2) is dis- closed to the CONSULTANT by third parties that did not ac- quire it directly or indirectly from the CITY or, if such third party did acquire such technical information directly or indirectly from the CITY and such third party has the right to disclose such technical information, or (3) is then or thereafter generally available to the public by virtue of independent publication; provided, however, that this excep- tion shall not be deemed to grant the CONSULTANT a license to any invention, copyright, or trade secret of the CITY. The CONSULTANT agrees to take all reasonable steps to prevent the unauthorized disclosure and use of technical information by its employees and/or subcontractors, including the steps of notifying such employees and/or subcontractors of the obliga- tions assumed hereunder by the CONSULTANT, and causing those employees and subcontractors participating in the work to execute an agreement with the CONSULTANT containing the same confidentiality obligations hereunder assumed by the CONSUL- TANT. The term "technical information" shall mean all tech- nical, financial, and engineering data and know-how whether patented, unpatented, or unpatentable, including, but not limited to, engineering and manufacturing operations, operating procedures and instructions, flow diagrams, heat balances, process and detailed design information, specifi- PAGE 3 cations on plants and equipment, specifications for raw materials and intermediate and final products, analytical methods, all marketing, economic and cost data. 1.10 CITY'S PROPRIETARY RIGHT Any and all inventions, improvements and/or discoveries, whether patentable or not, and any and all marketing, econo- mic and cost data which the CONSULTANT or any employee or subcontractor of the CONSULTANT conceives of and/or makes in the course of performance of work hereunder or after the completion of such work and (1) as a result of the perfor- mance of such work, or (2) as a result of the knowledge obtained by the CONSULTANT or such employee or subcontractor of any technical information covered by the confidentiality provisions of Paragraph 1.9 above, is and shall be the sole and exclusive property of the CITY. The CONSULTANT shall disclose and cause to be disclosed to the CITY, all such inventions, improvements and discoveries and any and all marketing, economic and cost data and at the election of the CITY cause the execution and assignment to the CITY of patent applications and letters patent on such inventions, improve- ments and discoveries, and the CONSULTANT and its employees and subcontractors shall have no right to use such inven- tions, discoveries and/or improvements, or such marketing, economic and cost data, nor shall the CONSULTANT and/or its employees and subcontractors file any patent applications covering such inventions, discoveries and improvements. 1.11 PATENT INFRINGEMENTS The CONSULTANT will use its best efforts to ensure that any design of any process, apparatus or equipment furnished by it hereunder will not infringe upon any U. S. Letters Patent. 1.12 CONSULTANT'S RECOMMENDATIONS If CITY makes recommendations in writing to CONSULTANT, CON- SULTANT may challenge such recommendations by CITY either because such a change will; (a) Jeopardize a part or all of CONSULTANT'S obligations or time schedule; or, (b) Is not in accordance with sound engineering practice. The resolution of such recommendation and challenge shall be effected within thirty (30) days after the delivery of CITY'S recommendation to CONSULTANT by either: (a) CITY'S acceptance of CONSULTANT'S original work; PAGE 4 (b) A written amendment to this AGREEMENT modifying the CON- SULTANT'S obligations or time schedule, or; (c) CITY may insist on its position as set forth in its recommendation, in which latter event CONSULTANT shall be relieved of its obligations, if any, to the extent such obligations are affected by such recommendations. In the event that CONSULTANT does not challenge CITY'S recommen- dation, the same shall be adopted with, as necessary, a written amendment to this AGREEMENT. ARTICLE II 2.1 INVOICING AND PAYMENT In consideration of CONSULTANT'S services hereunder, CITY will pay CONSULTANT for SERVICES per the Fee Rate Schedule included in Exhibit B. Funds paid by CITY shall be in full payment for CONSULTANT'S services and all expenses incurred. CONSULTANT agrees to furnish CITY with vouchers, receipts and other information reasonably satisfactory to CITY as evidence of CONSULTANT'S compensation and reimbursable expenses. CON- SULTANT will submit two statements for work performed. Such statements shall include sufficient details to identify the work being performed and shall include an itemization of the charges for the services rendered. Within thirty (30) days after receipt of CONSULTANT'S statement, CITY will remit payment therefor unless CITY shall protest all or a portion of the statement in which latter event, CITY shall notify CONSULTANT of any items in dispute and request supporting data therefor until this dispute is resolved. CITY will pay undisputed items and may defer payment on disputed items until the dispute is resolved in a timely manner. ARTICLE III 3.1 TERMINATION OF CONTRACT BY CITY CITY reserves and shall have the right to terminate this CONTRACT, or any portion of the SERVICES hereunder at any time by giving written notice to CONSULTANT, if: (a) CITY shall determine and provide thirty (30) days written notice thereof that termination of this CONTRACT is in its best interest; (b) CONSULTANT continuously fails to perform the SERVICES to be done hereunder in accordance with the material provi- sions of this CONTRACT; or PAGE 5 (c) CONSULTANT'S performance of the SERVICE shall be pre- vented for thirty (30) days or more by Force Majeure, or by decree of any court or order of any governmental authority. 3.2 TERMINATION OF CONTRACT BY CONSULTANT CONSULTANT reserves and shall have the right to terminate this CONTRACT or any portion of the SERVICES hereunder at any time upon thirty (30) days written notice to CITY, if CITY shall be in material breach which it does not cure in such 30-day period. 3.3 Neither the Articles in this AGREEMENT nor any exercise by CITY of any rights conferred on it hereunder shall be deemed a waiver of any other rights of CITY or of any obligation of CONSULTANT under this CONTRACT or under law. ARTICLE IV 4.1 FORCE MAJEURE CAUSES EXCUSED Any loss or damage, or delays in or failure of performance, of either party hereto shall not constitute default hereunder or give rise to any claims for damages, if, but only to the extent that, such loss, damage, delay, or failure is caused by "Force Majeure" as defined in Article 4.2. Within forty- eight (48) hours from the time of commencement of any delay or the occurrence of any loss, damage, or failure in perfor- mance, caused by Force Majeure, the party claiming to be entitled to be excused thereby shall notify the other party specifying the reasons thereof; failure to send such notice shall be deemed to be a waiver by the party of the right to assert Force Majeure as an excuse for such delay, loss, damage, failure of default in performance. In any such event, the party claiming Force Majeure as an excuse shall exercise due diligence to prevent, eliminate, or overcome such cause and to resume performance. 4.2 FORCE MAJEURE DEFINED As herein used, the term "Force Majeure" means war, mobil- ization, revolution, civil commotion, riots, strikes, lock- outs, floods, hurricanes, similar storms, or other action of the elements, acts of God or the public enemy, restrictions or restraints imposed by law or rule, regulation or order of government authorities, whether federal, state, or local, and whether civil or military, acts of civil or military author- ities, interruption of transportation facilities, lack of PAGE 6 access to the location of the Planned Activity and any other cause which is beyond the reasonable control of the party being affected and which, by the exercise of due diligence, such party is unable to prevent. ARTICLE V 5.1 INDEMNIFICATION CONSULTANT shall and does hereby agree to indemnify and hold harmless the CITY from any and all damages, loss, or liabili- ty of any kind whatsoever, by reason of injury to property or third persons occasioned by any error, omission or negligent act of CONSULTANT, its officers, agents, employees, invitees, and other persons for whom it is legally liable, with regard to the performance of the Agreement, and CONSULTANT will, at its cost and expense, defend and protect the City of Denton against any and all such claims and demands. CONSULTANT'S aforesaid indemnity and hold harmless agreement shall not be applicable to any liability based on willful acts of the sole negligence of the CITY. 5.2 LIENS CONSULTANT agrees to satisfy all claims for labor and mater- ial employed or used by it in connection with performing SERVICES hereunder for CITY, and to permit no liens of any kind to be fixed upon or against CITY' property by CONSUL- TANT'S laborers, mechanic, or suppliers, and to agree to indemnify, protect, and save CITY harmless from and against all such claims and liens. 5.3 INSURANCE During the term of this CONTRACT and at all times during performance, and until completion of SERVICES, CONSULTANT shall maintain in force the following insurance with companies satisfactory to CITY. (a) Worker's Compensation and Occupational Insurance, or as an alternate thereto, evidence of qualification as a self-insurer of such risk, in compliance with the laws of the state in which the SERVICES are to be performed and Employer's Liability insurance with a limit of $500,000 per occurrence. CONSULTANT shall require each subcon- tractor, labor broker, consultant, or other source of outside services to carry Worker's Compensation and Occupational Disease insurance and Employer's Liability insurance or furnish evidence of qualification as a self- insurer of such risks. PAGE 7 (b) General Liability insurance covering the operations of the CONSULTANT in the performance of the SERVICES, including Contractual Liability insurance covering the liability assumed in this CONTRACT. Said insurance policy shall provide bodily injury limits of $1,000,000 per occurrence and combined property damage limits of $1,000,000 per occurrence. (c) CONSULTANT shall provide the CITY with evidence of said coverage as provided for in paragraphs (a) and (b) for the duration of the Agreement. ARTICLE VI 6.1 INTERNAL CONTROLS AND RECORD KEEPING CONSULTANT shall maintain a system of internal controls suf- ficient to provide reasonable assurance that all transactions related to this CONTRACT are executed; transactions are properly recorded in its books and records; and shall keep full and accurate records and accounts of all its activities in connection with this CONTRACT including, without limita- tion, reasonable substantiation of all expenses incurred. Furthermore, CONSULTANT shall cause its agents and/or subcon- tractors to maintain such controls, records, and accounts. 6.2 AUDIT CITY shall have access, at all reasonable time, during the term of CONTRACT and for a period of one (1) year following the completion or termination of SERVICES to all CONSULTANT'S and subcontractor's personnel, books, records, correspon- dence, instructions, plans, drawings, receipts, vouchers, and memoranda of every description pertaining to SERVICES for the purpose of auditing and verifying cost of SERVICES or for any other reasonable purpose. CITY shall have the right to re- produce any such documents reviewed in conjunction with the audit. 6.3 RETENTION OF RECORDS CONSULTANT shall preserve, and shall cause its subcontractors to preserve for a period of five (5) years after completion or termination of SERVICES all records and accounts of all its activities in connection with this CONTRACT. PAGE 8 ARTICLE VII 7.1 OBLIGATIONS UPON TERMINATION If this CONTRACT shall be terminated by CITY in accordance with subparagraph (a) of Article 3.1 hereof, the payments to be made by CITY to CONSULTANT, lieu of all other payments due under this CONTRACT, shall be the sum of money arrived at by applying the total costs, expenses and fees as described in Article 2.1 incurred by CONSULTANT up to the date of termina- tion plus all necessary and reasonable expenses thereafter incurred by CONSULTANT in an orderly cessation of SERVICES less all other amounts previously paid by CITY to CONSULTANT under this CONTRACT. If this CONTRACT shall be terminated by CITY in accordance with subparagraph (b) or (c) of Article 3.1, CONSULTANT shall retain all payments theretofore re- ceived by it, except that CONSULTANT shall be responsible for all costs, damages, and liabilities of CITY resulting from CONSULTANT'S breach or the termination in the event of a 3.1(b) termination, but CITY shall not be required to make any payment beyond those already made. CITY agrees to provide CONSULTANT ten (10) days advance notice in event of termination under subparagraph (b) or Article 3.1. 7.2 SUBCONTRACTS Upon any termination of the CONTRACT, all the unfilled sub- contracts theretofore issued by CONSULTANT in accordance with the provisions hereof shall either be canceled by CONSULTANT or, at CITY'S option assigned to CITY, as CITY may direct. CONSULTANT shall inject CITY'S right to assume subcontracts at its option in all such subcontract agreements. 7.3 NO REPRESENTATIONS: ENTIRETY OF AGREEMENT This CONTRACT may only be amended, modified, or supplemented by a written instrument executed by both parties hereto. 7.4 ASSIGNMENT Neither party to this CONTRACT shall assign this CONTRACT or any obligation or duties hereunder without the prior written consent of the other party, which consent shall not be un- reasonably withheld. 7.5 APPLICABLE LAW This CONTRACT shall be construed in accordance with and governed by the law at the time in the State of Texas. PAGE 9 7.6 CAPTIONS The captions and headings in this CONTRACT are for purposes of reference only, and shall in no way limit or otherwise affect any of the terms or provisions hereof. 7.7 COUNTERPARTS This CONTRACT may be executed simultaneously in several counterparts, each of which, when so executed and delivered, shall be an original, but which counterparts together shall constitute but one and the same instrument. In proving this CONTRACT, it shall not be necessary to produce or account for more than one such counterpart. 7.8 WAIVER Neither this CONTRACT nor any term or provision hereof may be changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge, or termination is sought. Neither failure nor delay on the part of either party to exercise any right, remedy, power, or privilege pro- vided for herein or by statute or at law or in equity shall operate as a waiver thereof, nor shall any waiver or any single or partial exercise of any such right, remedy, power, or privilege preclude any other or further exercise thereof, or the exercise of any other right, remedy, power, or privilege. 7.9 SEVERABILITY Any item or provision of this AGREEMENT prohibited by the laws of the State of Texas shall be ineffective to the extent of such prohibition without invalidating the remaining terms and provisions of this AGREEMENT. 7.10 COSTS AND ATTORNEY'S FEES In the event that litigation is commenced under or related to this AGREEMENT by either of the parties hereto and that final judgment is entered against the other party, the prevailing party shall be entitled to recover from the other all attorneys' fees and costs incurred in prosecuting such litigation. PAGE 10 7. 11 VENUE This AGREEMENT shall be governed by and construed according to the laws of the State of Texas. The venue for all claims asserted under this AGREEMENT shall be Denton, Denton County, Texas. IN WITNESS WHEREOF, the parties hereto have caused this CON- TRACT to be duly executed by their duly authorized officers as of the day and year first above written. CITY By: LLOYD V. HARRELL, CITY MANAGER CONSULTANT t , , ' , -X By : ~ Qc z s~.~1 Title: uhf APPROVED AS TO LEGAL FORM: DEBRA A. DRAYOVITCH, CITY ATTORNEY By C~ PAGE 11 AGREEMENT FOR CONSULTING SERVICES CITY OF DENTON AND TRIAD ONSITE SYSTEMS INC. EXHIBIT A PAGE 1 OF 2 SERVICES AND TIME SCHEDULE 1. SERVICES Triad Onsite Systems, Inc. shall perform the following services pertaining to the removal of all asbestos-containing materials in the north and south wings and central bay of the main warehouse: a. Bld Process (1) Preparation of asbestos removal specilications. (2) Coordination with City and City's architects. (3) Attendance at pre-Wd conrer+ence. (4) Participation In evaluation of bid& b. Project Management (1) Monitor and observe asbestos abatement for general compliance with contract documents, spedAcetions and relevant regulations. (2) Advise on the use of appropriate personal protective equipment. (3) Require remedy of Infractions (if any). (4) Perform air monitoring. (5) Maaltain progress records. (6) Provide assurance an the final clearance of the project. AGREEMENT FOR CONSULTING SERVICES CITY OF DENTON AND TRIAD ONSITE SYSTEMS. INC. EXHIBIT A PAGE 2 OF 2 SERVICES AND TIME SCHEDULE If. TIME SCHEDULE The Bid Process services are to be performed in accordance with the time adieduls approved by the City for Issuance of the plans and specifications and the time period for submittal of bids. The Project Management services are to be performed during a two week time period starting on the date the asbestos removal contractor begins to move his equipment to the jobsite. Project Management services beyond the two week time period to be negotiated and approved by both the City of Denton and Triad Onsite Systems, inc. prior to performance of such services. y, Pe AGREEMENT FOR CONSULTING SERVICES CITY OF DENTON AND TRIAD ONSIT@ SYSTEMS, INC. EXHIBIT B PAGE 1 OF 1 FEE RATE SCHEDULE All services performed by Triad Onalte Systems, Inc. to be billed at the following hourly rates: Principal Engineer/Scientist $100.001hour Senior Project Manager $ 75.001nour Project Manager $ 70.001hour Assistant Project Manager $ W.00mour Air Monitor $ 45.00Ihour Clerical/Secreterial 5 25.00ftur Notwithstanding the above rates, the total billing for the Bid Process services are not to exceed $5,000.00 and the total billings for the Project Management services are not to exceed $10,500.00, provided the asbestos abatement work does not exceed a two week time period. Any services beyond the Initial two week period to be negotiated and agreed upon by both The City of Denton and Triad Onsite Systems, inc. prior to performance of such services. DATE: MAY 18, 1993 CITY COUNCIL REPORT TO: Mayor and Members of the City Council FROM: Lloyd V. Harrell, City Manager SUBJECT: PURCHASE ORDER #34357 - TRIAD ONSITE SYSTEMS RECOMMENDATION: We recommend Purchase Order #34357 and contract to Triad Onsite Systems be approved in the amount of $15,500.00 for Asbestos Consulting and Project Management at Denton Municipal Center (DMC). SUMMARY: During the design phases of the DMC Renovation project it was determined that due to the buildings age and previous Preliminary Testing friable asbestos-containing materials (ACM)could be present. In March 1993 Corgan Associates the project architect and Bruce Henington, Facilities Managements Superintendent conducted a walk through with State of Texas licensed asbestos consultants. Their task was to identify and located friable ACM that would be effected by the planned renovation of the building. Asbestos-Contaminated Material was located in the North and South Wing as well as the central bay area of the main warehouse. ACM is primarily associated with HVAC systems (insulated piping, boilers, chillers, ducting) and flooring materials. State and Federal environmental regulations are in effect that requires removal of ACM that would be disturbed as part of the renovation project. Effective January 1, 1993 removal must be conducted by State licensed contractors working under the independent inspection of a State licensed consultant. No longer can asbestos removal be done without the proper licensing. All handling procedures must comply with State and Federal Regulations. Triad Onsite Systems, Inc. is State Licensed for Asbestos Consulting and Project Management. They have submitted a very competitively price and a well prepared proposal. Included in the proposal is specification development, bid evaluation, project management, air monitoring and testing. The actual removal will be done by a different contractor yet to be determined through the bid process. No work can be preformed without a Triad licensed representative on site performing air monitoring, testing and verifying compliance with the approved asbestos removal plan. This purchase order and associated contract are for the consulting and management phases only and do not include the actual removal and disposal. Professional consultant services are exempt from the bid process as per Texas Local Government Code Chapter 252.022. BACKGROUND: Triad Onsite Systems proposal dated April 5, 1993. CITY COUNCIL REPORT MAY 18, 1993 PAGE 2 OF 2 FISCAL IMPACT: Funds for this project will come from bond funds for DMC (Moore Building) Renovation. Respec ly ssuubmitte v Lloyd W. Harrell City Manager Approved : Name: Tom D. Shaw, C. P.M. Title: Purchasing Agent agenda.370