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2014-050ORDINANCE NO. 2 014 - 050 AN ORDINANCE OF THE CITY OF DENTON TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE "SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT" FOR FURTHER ENGINEERING SERVICES TO BE UTILIZED IN THE PREPARATION, DEVELOPMENT AND SUBMITTAL OF A PERMIT APPLICATION FOR LATERAL EXPANSION AND ASSOCIATED SERVICES PERTAINING TO THE CITY OF DENTON LANDFILL (MSW PERMIT #1590A); AUTHORIZING THE EXPENDITURE OF ADDITIONAL FUNDS THEREFOR IN AN AMOUNT NOT -TO- EXCEED $156,400; PROVIDING AN EFFECTIVE DATE (FILE NO. 4683 —CP &Y, INC. AGGREGATING AN AMOUNT NOT -TO- EXCEED $1,092,280). WHEREAS, on April 25, 2011, the City awarded a Professional Services Agreement for Architect or Engineering Services (hereafter the "Agreement ") to CP &Y, Inc., Dallas, Texas, in the amount of $70,000 for professional engineering services regarding the preliminary activities regarding the future amendment of the landfill permit for the City of Denton Landfill facility (MSW No. 1590A); said Agreement was approved by the City Manager in accordance with his delegated authority; and WHEREAS, on September 6, 2011 by Ordinance No. 2011 -140, the Council awarded an amended Professional Services Agreement for Architect or Engineer to CP &Y(hereafter the "First Amendment ") in the further amount of $865,880 aggregating a not -to- exceed amount of $935,880 for additional services to be rendered on the Landfill Project and to the Solid Waste Department of the City; and WHEREAS, there appears to the Council that further professional services must be completed in order to move the Landfill Project forward to completion; and Staff having recommended, the Public Utilities Board, having approved, and the City Manager having recommended to the Council that the "Second Amendment to Professional Services Agreement with CP &Y, Inc." (hereafter the "Second Amendment ") be authorized to amend such Agreements, with respect to the scope of work and an increase in the payment amount by $156,400; and said fees under the proposed Second Amendment are fair and reasonable, and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the provider's profession; and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into the "Second Amendment to Professional Services Agreement" with CP &Y, Inc. (the "Second Amendment "), in substantially the form that is attached hereto as Exhibit "A" and incorporated herewith by reference, which increases the amount of the engagement by and between the City of Denton, Texas and CP &Y, Inc., which Agreement is on file in the office of the Purchasing Agent, in the additional amount of $156,400, which amount is hereby approved; and the expenditure of funds therefor is hereby authorized in accordance with said Second Amendment. The total purchase order amount therefore increases to the amount of not -to- exceed $1,092,280. SECTION 2. The City Council of the City of Denton, Texas hereby expressly delegates the authority to expend funds and to take any actions that may be required or permitted to be performed by the City of Denton, Texas under File No. 4683, to the City Manager of the City of Denton, Texas, or his designee. SECTION 3. The recitations and statements contained in the preamble hereto are incorporated herewith as a part of this Ordinance for all purposes. SECTION 4. This ordinance shall become effective, and is hereby approved on this date. PASSEL) AND A13PROVED this the �' day of , 2014 M RK A. B U RROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: r x �0R 8 STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the _eday of _relb, 2014, by and between the City of Denton, Texas, a Texas Municipal Corporation, with its pnncij4a] offices at 215 East McKinney Street, Denton, Texas 76201 (hereinafter "OWNER") and CP&Y, Inc., a Corporation, with its offices at 1820 Regal Row, Suite 200, Dallas, Texas 75235 (hereinafter "CONSULTANT"); the parties acting herein, by and through their duly-authorized officers and representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows: ARTICLE I OWNER has previously engaged CONSULTANT on April 25, 2011 to perform professional engineering services for OWNER relating to OWNER'S Landfill (MSW 1590A) by a "Professional Services Agreement for Architect or Engineering Services" (hereafter the "Agreement") in the amount of not-to-exceed $70,000, which was approved within the delegated authority of the City Manager; and OWNER subsequently engaged CONSULTANT on September 6, 2011 to perform farther professional engineering services incident to permitting of its Landfill and other professional engineering services, which was provided for in the "amended "Professional Services Agreement" (hereafter the "First Amendment"), which was approved by the OWNER'S Council by Ordinance No. 2011-140, for an additional not-to-exceed amount of $865,880, aggregating a not-to-exceed amount of $935,880, and In order to obtain the necessary regulatory permitting from the Texas Commission on Environmental Quality ("TCEQ"), OWNER must necessarily engage CONSULTANT to provide for additional engineering services related to the OWNER'S Landfill Project regarding TCEQ MSW permit amendment for lateral expansion, and that CONSULTANT has provided OWNER's representative with a proposal providing that an additional $156,400 in professional engineering fees is necessary in order to complete this project, referenced in Article I below. ARTICLE 11 E'LCiA,GE1JEVT • PV.*FESSI "A-4L E'VGFLT�_EV,_1LJG 171111 This Agreement is for the purpose of retaining the professional engineers and their support personnel of CP&Y, Inc. to perform engineering services regarding: (1) the landfill gas plan; (2) the permit boundary modification-, (3) food waste composting; (4) exterior side slope modification; (5) FEMA permitting, (6) grease and grit trap processing facility; and (7) landfill mining plan.(hereinafter collectively referred to as the "Project"). CONSULTANT agrees to perform the 1 services herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set forth herein are in connection with the following: ARTICLE III SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: A. To perform all those services and tasks as set forth in CONSULTANT'S three (3) page written proposal issued on January 16, 2014, provided to Vance Kemler, General Manager of the City Solid Waste Department, a department of OWNER, which proposal is attached hereto and incorporated herewith by reference as Exhibit "B." B. If there is any conflict between the terms of this Agreement and the Exhibits attached to this Agreement, the specific terms and conditions of the proposal shall control over the general terms and conditions of this Agreement. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution by the OWNER and the CONSULTANT and upon the issuance of a notice to proceed by the OWNER. It shall remain in force for the period that may reasonably be required for the completion of the Project, and any required extensions approved by the OWNER; or until the monetary consideration expressed herein is wholly exhausted, whichever event shall first occur. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expediently as possible and to meet the schedules established by the OWNER, acting through its General Manager of Solid Waste. ARTICLE V COMPENSATION A. COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense, based upon actual cost, for any expense reasonably incurred by the CONSULTANT in the performance of this Agreement and other incidental reasonable expenses incurred in connection with the Project. Provided however, any reasonable sub-consultant billings reasonably incurred by CONSULTANT in connection with the Project shall be invoiced to OWNER at those billings cost plus up to an additional ten (10%) percent. For and in consideration of the professional services and related expenses to be performed by the CONSULTANT herein, the OWNER agrees to pay CONSULTANT based upon the rates 0 set forth in Exhibit "'A" which is attached hereto and incorporated by reference herewith; a total fee, not-to-exceed $156,400. When aggregated with the Agreement and the First Amendment, the not-to-exceed amount shall equal $1,092,280. Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its General Manager of Solid Waste, or his designees; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory as reasonably determined by the General Manager of Solid Waste, or which is not submitted to the OWNER in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the maximum not-to-exceed fee as stated hereinabove. C. PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT'S undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of interest then provided and applicable under the Texas Prompt Payment Act from and after the said thirtieth (30th) day after the OWNER's receipt of invoice-, and in addition, the CONSULTANT may, after giving ten (10) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER for services, expenses and charges. Provided, however, nothing herein shall require the OWNER to pay the amount of the billing invoice of CONSULTANT, with such notice provided to CONSULTANT within fifteen (15) days after receipt of the invoice, that the work is unsatisfactory, in accordance with Article V of this Agreement. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any of its subcontractors or subconsultants. 3 VII J4 - 4• _ • 1 All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants, if any) pursuant to this Agreement are instruments of service and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and fiu-nished by the CONSULTANT are intended only to be applicable to this Project and OWNER'S use of these documents in other projects shall be at OWNER'S sole risk and expense. In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this agreement, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services 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 IX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including without limitation damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, attorneys and employees in the execution, operation, or performance of this Agreement. Nothing in this 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 party's 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 immunity, which defenses are hereby expressly reserved. ARTICLE X INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency; please reference Attachment "A" hereto, for the said insurance requirements. 4 ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. ARTICLE XII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty-(30) day's advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance or other reason(s), and not less than (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article IV of this Agreement. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and the new consultant. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination but may maintain copies of such documents for its files. CONSULTANT agrees that it shall also fully comply with any and all written requests received from the OWNER, through its Director of Solid Waste, to maintain confidentiality respecting certain designated records, documents, and other written materials related to the Project, which the OWNER reasonably determines is competitively sensitive, and would likely cause damage to the OWNER if disclosed to the public or to any other person, party, or entity. ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, agents, subcontractors, and sub-consultants for the accuracy and competency of their work performed pursuant to this Agreement; nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the 61 CONSULTANT, its officers, employees, agents, subcontractors, and sub-consultants. ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, by means of U. S. Mail, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein. firerk-r•Q 1 �M � CP&Y, Inc. Attn: Frank E. Pugsley, P.E., MOLO 1820 Regal Row, Suite 200 Dallas, Texas 75235 Telephone: (214) 638-0500 City of Denton, Texas Attn: City Manager Denton City Hall 215 East McKinney Street Denton, Texas 76201 Telephone: (940) 349-8407 and City of Denton, Texas General Manager Solid Waste Department 1527 South Mayhill Road, Denton, Texas 76208 Telephone: (940) 349-8044 All notices under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given. ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of nine (9) pages and two (2) exhibits, constitutes the complete and final expression of the Agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended. ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. A R TTCT.F XTY IUMIM410091" A. The CONSULTANT represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor 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 during the term of this Agreement. B. All services required hereunder will be performed by the CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the OWNER. CONSULTANT shall promptly notify OWNER, in writing, of any change of its name as well as of any material change in its corporate structure, its location, and/or its operations. 7 ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXII MISCELLANEOUS A. The following Exhibits is attached to and made a part of this Agreement: 1. Attachment "A" - -- Insurance Requirements of the City of Denton, Texas 2. Exhibit "B" - -- CONSULTANT'S proposal contained in letter dated January 16, 2014 to Vance Kemler, General Manager of Solid Waste, City of Denton, Texas B. OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this Agreement. The CONSULTANT shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the CONSULTANT shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All books and records will be made available within a fifty (50) mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 2% or greater. If an overpayment of 2% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONSULTANT which must be payable within fifteen (15) business days of CONSULTANT'S receipt of the OWNER'S invoice. Failure to comply with the provisions of this section shall be a material breach of this Agreement and shall constitute, in the OWNER'S discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the 0 laws of the State of Texas. D. For the purpose of this Agreement, the key person who will serve as Project Manager respecting this engagement is Frank E. Pugsley, P.E. However, nothing herein shall limit CONSULTANT from using other qualified and competent engineers, consultants and administrative support personnel of their firm to perform the services required herein. E. CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the provisions hereof. In accomplishing the Project, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANT to perform professional 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 this Agreement. IN WITNESS WHEREOF, the City of Denton, Texas has executed this Agreement in four (4) original counterparts, by and through its duly - authorized officials; and CONSULTANT has executed this Agreement by and through its duly - authorized undersigned officer, on this the u. day of , 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY APP,, PVED , TO LEGAL FORM: ANli A BtJR+CiESS, CITY ATTORNEY L Bs CITY OF DENTON, TEXAS A Texas Municipal Corporation 9 GE,ORCiE C. CAMPBELL, CITY MANAGER ATTEST: 10 VONSULTANT" CP&Y, INC. A Corporation By: Its CP&YJS M Partners for a Boner Quality of Life January 16, 2014 Exhibit B Mr. Vance Kemler ManW,r!nPY9&-Vk�-A4RaW-f irrvil, City • Denton 1527 S. Mayhill Rd. Denton, TX 76208 Re: City ♦ Denton Landfill TCEQ MSW Permit Amendment for Lateral Expansion Contract Amendment No. 2 FRAN= 1820 Regal Raw, Suite 200 Dallas, Texas 75235 214.638.0500 * 214.6&38.3723 fox www.cpyi.com I Food Waste Comosting — Additional Fee: $17,300 Zity staff has requested that a Food Waste Composting unit be permitted within the proposed Permit Boundary. CP&Y will prepare the necessary permit documents including a Site Development Plan, Site Operating Plan and appropriate figures to incorporate this facility. CP&Y, Inc. proposes to be compensated for the previously presented Scope of Services based upon an hourly basis plus subcontract and direct expenses for a total fee not to exceeij, $156,400. The cost of each Task is summarized below. 1. Landflil Gas Plan ............. ... - .... ... — ...... - ............ 4--- ....... rr MMOR jE-�44 I P-4 CT Frank E. Pugsley, MOLO Associate