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2001-079 OR,IN.CE NO cfO01-Ogq AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MONTGOMERY WATSON AMERICAS, INC FOR ENGINEERING SERVICES PERTAINING TO THE CONFIGURATION AND INSTALLATION OF SOFTWARE APPLICATIONS FOR THE CITY OF DENTON LAKE RAY ROBERTS WATER TREATMENT PLANT, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it m the public interest to engage Montgomery Watson Americas, Inc, a Cahfomia Corporation ("MWA"), with offices m Fort Worth, Texas, to provide professional englneenng services to the City pertaining to the configuration and installation of software applications for the City of Denton Lake Ray Roberts Water Treatment Plant, and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described professional engmeenng services, and that limited City staff cannot adequately perform the services and tasks w~th its own personnel, and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Proeuremant Act", generally provides that a City may not select a provider of professional services on the basis of competmve bids, but must select the provider on the basis of the provlder's demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price, and Wt-IEREAS, the City's procurement of professional engmeenng services and related supporting supplies and materials provided by MWA in connection with the above referred to professional services, are additionally exempt ~om the requirements of the State competitive bidding law and pursuant to the City of Denton Code of Ordinances as a "high technology procurement" as permitted by Section 252 021 (c) of the Texas Local Government Code, and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional engmeenng services, as set forth in the Professional Services Agreement, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the recitations contmned in the foregoing Preamble to this ordinance are tree and correct and the same are incorporated by reference herewith SECTION 2 That the City Manager is hereby authorized to execute a Professional Services Agreement with Montgomery Watson Americas, Inc for professional englneenng services pertmmng to the configuration and installation of software applications for the City of Denton Lake Ray Roberts Water Treatment Plant, in substantially the form of the Professional Services Agreement attached hereto and ~ncorporated herewith by reference SECTION 3 That the award of tbas Agreement by the C~ty is on the basis of the demonstrated competence, knowledge, and quahficatmns of MWA and the abdlty of MWA to perform the servmes needed by the C~ty for a fmr and reasonable pnce SECTION 4 That the expenditure of funds as provided ~n the attached Professional Servmes Agreement is hereby authonzed SECTION 5 That this ordinance shall become effective lmmedmtely upon ~ts passage and approval PASSED AND APPROVED th~s the ~7~ day of ~ ,2001 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY S \Our Documents\Ordmances\01hMontgomery Watson Americas In¢ PSA Lake Ray Roberts doc STATE OF TEXAS § COUNTY OF DENTON § PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES PERTAINING TO THE CONFIGURATION AND INSTALLATION OF SOFTWARE APPLICATIONS FOR THE ~EMENT ~s made and entered ~nto as of the ~f~ day of ,2001, by and between the City of Denton, Texas, a Texas Mtm~c~pal Corporat~on, w~ ~ts pnnc~pal offices at 215 East McI~nney Street, Denton, Texas 76201 (hereafter "OWNER") and Montgomery Watson Amencas, Inc, a Cahfomm Corporation, w~th ~ts offices at 7557 Rambler Road, Dallas, Texas 75231 (hereafter "CONSULTANT"), the part,es actmg hereto, by and through their duly~authorized representatives and officers WITNESSETH, that ~n consideration of the covenants and agreements here~n contained, the part~es hereto do mutually AGREE as follows ARTIC~I ,f, 1 EMPLOYMENT OF CONSULTANT The OWNER hereby contracts w~th CONSULTANT, as an ~ndependent contractor, and the CONSULTANT hereby agrees to perform the services hereto ~n connectmn w~th the ProJect as stated ~n the Artmles to follow, with diligence and ~n accordance with the professional standards customarily obtmned for such services m the State of Texas The professional services set forth here~n are ~n connectaon w~th the following described project (the "ProJect") Professional eng~neenng servmes pertmmng to the design, software development, and the performance of related construction phase services, for the SCADA software development project for the Lake Ray Roberts Water Treatment Plant ARTfCT ,1~ TI SCOPE OF SERVICES The CONSULTANT shall perform the following Basra Services in a professional manner A To perform those professional servmes as set forth ~n the "Scope of Servmes" for Lake Ray Roberts Water Production Plant, dated February 2001, and prepared by CONSULTANT for OWNER, whmh document ~s attached hereto as Attachment "A," and is ~ncorporated herren by reference B If there ~s any conflmt, or ff any conflict arises between the temas of th~s Agreement and Attachment "A" attached to this Agreement, the terms and condmons of th~s Agreement shall control over the terms and conditions of the Attachment Page 1 of 11 ARTICI ,F. Ill ADDITIONAL SERVICES Any addttlonal services to be performed by the CONSULTANT, ~f authorized by the OWNER, wluch are not mcluded as Basra Servtces tn the above-described Scope of Servtces, set forth as pmvtded by Artmle II above, shall be later agreed-upon by OWNER and CONSULTANT, who shall determine, tn writing, the scope of such addtttonal servmes, the amount of compensation for such addltlonal servtces, and other essential terms pertmmng to the provtston of such additional servmes by the CONSULTANT ARTICJ .IR. IV PERIOD OF SERVICE Thts Agreement shall become effecttve upon execution by the OWNER and the CONSULTANT and upon the tssuance ofa notme to proceed by the OWNER, and shall remmn ~n fome and effect for the period that may reasonably be reqmred for the completmn of the ProJect, lncludtng Addtttonal Servmes, if any, and any reqmred extenstons approved by the OWNER Thts Agreement may be sooner termmated tn accordance wtth the provtstons hereof Ttme ts of the essence tn tlus Agreement CONSULTANT shall make all reasonable efforts to complete the servtces set forth herein as expedtt~ously as possible and to meet the schedule reasonably established by the OWNER, actmg through tts Asststant Ctty Manager for Utlhttes, or his destgnee ARTTCI.F. V COMPENSATION A COMPENSATION TERMS 1 "Expense" ts defined as those expenses, ~f any, tncurred by CONSULTANT ~n the employment of others tn outstde firms, for services tn the area of professtonal engtneenng, or related services Any subcontractor or subconsultant btlhng reasonably tncarred by the CONSULTANT m connectton wtth the Project shall be ~nvmced to OWNER at the actual cost plus ten percent 2 "Direct Non-Labor Expense" ts defined as that expense, based upon actual cost, for any out-of-pocket expense reasonably tncurred by the CONSULTANT in the performance of thts Agreement for long dtstance telephone charges, telecopy charges, messenger servmes, pnntlng and reproductton expenses, out-of-pocket expenses for purchased computer trine, prudently Incurred travel expenses related to the work on the ProJect, and stmllar tncldental expenses tncurred tn connectton wtth the ProJect B BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT hereto, the OWNER agrees to pay CONSULTANT, based upon the satisfactory completton of the Basra Services tasks set forth m the Scope of Services as shown m Arttcle II above, as follows 1 CONSULTANT shall perform Its work on this ProJect tn accordance with the prowstons of those tasks that are described as set forth tn Attachment A - "Scope of Servmes" ^,uo,,,.o.,c.w~,~. ~.k*~y~ob~.,,~^do, Page 2 of 1 1 attached hereto and ~ncorporated herewith by reference CONSULTANT shall perform the smd professional services substantially in accordance with the provlstons herein CONSULTANT shall be paid for services rendered pursuant to the Agreement on the basis set forth m the "Schedule of Fees" contained in Attachment B, billed monthly CONSULTANT shall b~ll based on percent complete for each task OWNER agrees to pay to CONSULTANT for ~ts professional servmes performed, for its Subcontractor Expense, Equipment Expenses, and for its D~rect Non-Labor, out-of pocket expenses incurred ~n the Project, a total lump-sum amount of fees and expenses of Four Hundred Forty-two Thousand Forty-slx dollars ($442,046 00) 2 Partml payments to the CONSULTANT will be made monthly in accordance with the statements reflecting the actual completion of the Basic Services, rendered to and approved by the OWNER through its Assistant City Manager for Utthtles, or h~s designee However. under no circumstances shall any monthly statement for services exceed the value of the work performed at the t~me a statement ~s rendered The OWNER may withhold the final ten (10%) percent, or any other lesser sum that shall adequately protect OWNER, of the above not-to-exceed amount until satisfactory completion of the Project by the CONSULTANT 3 Nothing contmned in this Article shall require the OWNER to pay for any work which is unsatisfactory as reasonably determined by the Assistant City Manager for Utthtles or h~s designee, or wbach ~s not submitted by CONSULTANT to the OWNER in comphance with the terms of th~s Agreement The OWNER shall not be required to make any payments to the CONSULTANT at any t~me when the CONSULTANT is in default under th~s Agreement 4 It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to th~s Agreement whmh would require additional payments by the OWNER for any charge, expense or reimbursement above the not-to-exceed amount as stated herelnabove, without first having obtained the prior written authorization fi.om the OWNER CONSULTANT shall not proceed to perform any services to be later prowded for under Artmle III "Additional Services," without first obtmmng prior written authorization fi.om the OWNER C ADDITIONAL SERVICES For addltlonal services authorized in writing by the OWNER in Article III herelnabove, CONSULTANT shall be paid based on a to-be-agreed-upon Schedule of Charges Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with Article V B herelnabove Statements for Basra Services and any addmonal services shall be submitted to OWNER no more frequently than once monthly D PAYMENT If the OWNER fmls to make payments due the CONSULTANT for services and expenses w~tlun s~xty (60) days after receipt of the CONSULTANT'S undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month fi.om and after the said sixtieth (60th) day, and ~n addition, thereafter, the CONSULTANT may, after giving ten (10) days written notice to the OWNER, suspend services under tins Agreement until the CONSULTANT has been pad in full for all amounts then due and orang, and not disputed by OWNER, for services, expenses and charges Prowded, however, nothing here~n shall require the OWNER to pay the late charge of one percent (1%) per month as set forth hereto, if the OWNER reasonably ^,Mo,~.~,~ w~,~o,, L~R,y~ob~PSA~ Page 3 of 11 detennmes that the CONSULTANT's work is unsatisfactory, in accordance with Article V B ofth~s Agreement, and OWNER has notffied CONSULTANT of that fact in writing ARTTCT ,F, VT OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due dthgence m d~scovenng and promptly reporting to the OWNER any defects or defic~encms m the work of the OWNER or Contractor at the Lake Ray Roberts Water Production Plant s~te ARTTC~I ,~', VT[ RESPONSIBILTIES OF OWNER The completmn of th~s project contemplates several requirements to be completed by the OWNER These reqmrements are critical to the completion of the project and ~n meeting the project schedule The following ~tems are the respons~bthty of the OWNER 1 For completion of th~s project the OWNER'S contractor that ~s constructing the Lake Ray Roberts Water Treatment Plant shall be ~nstmcted by the OWNER or h~s designee to coordinate w~th the CONSULTANT dunng the constructton phase to schedule on- s~te ~nspectmn and ~nstmmentat~on venficatmn 2 For construction coordination and on-s~te v~slt reqmrements, the OWNER or his designee must not~fy the CONSULTANT at least two weeks in advance 3 Any delay ~n schedule by the OWNER (or Ins contractor) that effects the overall completmn date will result ~n an extensmn of the Agreement, as well as compensation to the CONSULTANT for any additional expenses reasonably recurred tn labor, direct expenses, or indirect expenses These costs shall be negotmted and added to the Agreement as Adrhtlonal Services Delays include, and are not hm~ted to incomplete information dunng the development of software, or failure to fimsh constructton ~n the scheduled me, or lack of access to plant she ARTtCT,~, VIII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to th~s Agreement are ~nstruments of servtce and shall become the property of the OWNER upon the termlnatton of th~s Agreement The CONSULTANT ~s entitled to retain cop~es of all such documents The documents prepared and furmshed by the CONSULTANT are intended only to be apphcable to th~s project and OWNER's use of these documents m other projects shall be at OWNER's sole risk and expense In the event the OWNER uses the Agreement m another project or for other purposes than spemfied here~n any of the information or matenals developed pursuant to th~s Agreement, CONSULTANT ~s released from any and all habfl~ty relating to their use m that project Page 4 of 11 AR'T'T~T ,~ T~ 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 ARTT~I.E X INDEMNITY AGREEMENT The CONSULTANT shall lndemmfy 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, or property damage, to the extent caused by the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, subcontractors, subconsultants, attomeys, and/or employees m the execution, operation, or performance of this Agreement Nothing m this Agreement shall be construed to create a hablhty to any person who is not a party to ttus Agreement and nottung herein shall wmve any of the party's defenses, both at law or equity, to any clmm, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental tmmumty, which defenses are hereby expressly reserved ARTIC~I .E XI INSURANCE Dunng the performance of the Services under this Agreement, CONSULTANT shall meuntam the following insurance w~th an insurance company hcensed to do business m the State of Texas by the State Insurance Board or any successor agency, that has a rating with A M Best Rate Careers of at least an "A-" or above A Commercial General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 m 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 Employer's Liability Insurance with limits of not less than $100,000 for each accident D Professional Liability Insurance with hmlts of not less than $500,000 annual aggregate E CONSULTANT shall furmsh insurance certificates or insurance pohc~es to the OWNER to evidence such insurance coverage The Commercial General L~ablhty and the Automobile Liability insurance policies shall name the OWNER as an additional insured on all such policies to the extent that is legally possible, and shall contain a provision that such insurance ^,Mo.~o,,,c~w~o.,L~,~yaob~r~,S^~o. Page 5 of 11 shall not be cancelled or modified without at least thirty (30) days pnor wntten notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation of coverage, deliver copies of any such substitute pollc~as, furmslung at least the same policy hmlts and coverage to OWNER ARTIC. T,F, XIT ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under ttus Agreement by submitting the thspute to arb~trat4on or other means of alternate dispute resolution such as medmt~on No arbitration or alternate &spute resolution arising out of or relating to, th~s Agreement involving one party's disagreement may include the other party to the disagreement w~thout the other's approval ARTICI .F. XIII TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty (30) days advance written notice to the other party B This Agreement may alternatively be terminated tn whole or m part in the event of either party substantmlly fathng to fulfill its obligations under th~s Agreement No such termination will be effected unless the other party ~s given (1) written notice (delivered by certified mml, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance or other reason(s), and not less than thirty (30) calendar days to cure the fmlm'e, and (2) an opportumty for consultation with the tenmnatlng party prior to termination C If tins Agreement is terminated prior to completion of the services to be prowded hereunder, CONSULTANT shall immediately cease all services upon receipt of the written notice of termination from OWNER, and shall render a final bill for services to the OWNER within twenty (20) days after the date of tenmnatlon The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses pnor to notice of termination being received by CONSULTANT, ~n accordance with Article V of tlus Agreement Should the OWNER subsequently contract with a new consultant for the continuation of sermces on the Project, CONSULTANT shall cooperate m pmwd~ng information to the OWNER and to the new consultant If applicable, OWNER shall allow CONSULTANT a reasonable ttme to transition and to mm over the Project to a new consultant CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to tins Agreement to the OWNER on or before the date of termination, but may mmntmn copies of such documents for its files ARTIST .~ RESPONSIBILITY FOR CLAIMS AND LIABILITIES A 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 subconsultants for the accuracy and competency of their designs or other work performed pursuant to this Agreement, nor shall such approval by the OWNER be deemed as an assumptton of such responslblhty by the OWNER for any defect in the design or other work prepared by the ^,Mo,,*.,~.w,,~.L,~o~y.ob,~,~^~ Page 6 of 11 CONSULTANT, ~ts pnnctpals, officers, employees, agents, subcontractors, and subconsultants B CONSULTANT, as part of the Servtces, may furmsh, recommend, or tdent~fy to OWNER certmn thtrd party software As CONSULTANT ~s not the author, manufacturer, or developer of such software, CONSULTANT does not gtve any warranty, express or tmphed of thtrd party software, and shall not be hable for any defects m such software, but wtll pass the manufacturer's warranty to the OWNER C CONSULTANT warrants that as to Software developed under thts Agreement that (0 the Software will perform substantmlly ~n accordance with written materials promded w~th the Software for a period ofg0 days fi.om the date fi.om the date that ~t ~s mcetved by OWNER and (n) the medta on whmh the Software ~s d~stnbuted shall be free fi.om defects tn materials and workmanstup for a period of 90 days fi.om the date that ~t ~s received by the OWNER CONSULTANT'S entire habd~ty and CONSULTANT'S exclusive remedy under th~s hmlted warranty wall be, at CONSULTANT'S option, e~ther 0) the return of the price pard for the Software or (n) repair or replacement of the Software or the medta that ts retumed by CONSULTANT Tlus hmtted warranty ~s vmd ff the fmlure of the Sothvare or med~a ts due to acctdent, abuse, m~sapphcat~on or unauthorized modification Any replacement Software or medta wtll be warranted for the remmnder of the ongtnal warranty period or 30 days, whtchever ts longer D TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS CONSULTANT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CLIENT'S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE 'WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER SOFTWARE THAT CLIENT SELECTS FOR ITS USE, OR THAT DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED CONSULTANT FURTHER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF USE OF THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIALS WITH RESPECT TO THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CONSULTANT SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE OWNER UNDER SUCH CIRCUMSTANCES ARTTCT ,~ YV NOTICES All notmes, commumcattons, and repons reqmred or permitted under thts Agreement shall be personally dehvered to, or telecopted to, or mmled to the respecttve parttes by depostt~ng same tn the Umted States mml at the addresses shown below, postage prepatd, certtfied mad, tatum recetpt requested, unless otherwise spemfied hereto Page 7 of 11 To CONSULTANT To OWNER Montgomery Watson Americas, Inc City of Denton, Texas Wayne Hunter, Business Umt Manager Michael W Jez, C~ty Manager 7557 Rambler Road, State 1050 215 East McI~nney Dallas, Texas 75231 Denton, Texas 76201 Fax (214) 360-9929 Fax (940) 349-8596 All notices given under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given ARTICT ,~ XVT ENTIRE AGREEMENT This Agreement consisting of eleven (11) pages and two (2) Attachments constitute the complete and final expression of the Agreement of the parties and is mtended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotmtlons, discussions, communications, understandings, and agreements which may have been made in connectmn with the subject matter of this Agreement ARTT~T ,1~. XVTT SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent Junsdmtlon 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 w~th a valid and enforceable provision wluch comes as close as possible to expressing the ongmal ~ntentlons of the parties respecting any such stnckan provision ARTTCT.E XVTTI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, roles, regulatmns, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended AR TIC~I ~F,, XTX 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 ongm or ancestry, age, or physical handicap ARTICI .E ~XX PERSONNEL A CONSULTANT represents that it has or will secure at its own expense all personnel required ^,~o,,,~o,,,c~ ..... ~.ko~.,~b*,.~s^~, Page 8 of 11 to perform all the servmes reqmred under th~s Agreement Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER CONSULTANT shall ~mmedlately ~nform the OWNER ~n writing of any confhct of interest or potentml conflict of interest that CONSULTANT may discover, or which may arise dunng the term oftlus Agreement B All services reqmred hereunder will be performed by CONSULTANT or under ~ts direct supervision All personnel engaged m performing the work prowded for ~n th~s Agreement, shall be quahfied, and shall be authorized and pernntted under state and local laws to perform such services ARTICI ,F, ASSIGNABILITY The CONSULTANT shall not assign any interest ~n tlus Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwtse) w~thout the prior written consent of the OWNER CONSULTANT shall promptly not~fy OWNER ~n writing of any change of its name as well as of any s~gmficant change ~n ~ts corporate structure or ~n ~ts operations AR TT(~I.I~ XYTI MODIFICATION No wmver or mothficat]on of th~s Agreement or of any covenant, condttlon, hnntat~on here~n contained shall be vahd unless in writing and duly executed by the party to be charged therewith No evidence of any wmver or modification shall be offered or received ~n ewdence m any proceeding arising between the parties hereto arising out of, or affecting th~s Agreement, or the rights or obhgat~ons of the part,es hereunder, unless such wmver or modfficatlon ~s ~n writing, duly executed The parties further agree that the provisions of th~s Article w~ll not be wmved unless as herein set forth ARTTCI.~ XXIII MISCELLANEOUS A The following Attachments are attached to, incorporated herewith by reference, and are made a part of th~s Agreement for all purposes pertinent Attachment "A" - "Scope of Services" Attachment "B" - "Schedule of Fees" B CONSULTANT agrees that OWNER shall, until the expiration of four (4) years after the final payment made by OWNER under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the CONSULTANT involving transactions relating to th~s Agreement CONSULTANT agrees that OWNER shall have access dunng normal working hours to all necessary CONSULTANT factht]es and shall be prowded adequate and appropriate working space ~n order to conduct exannnat~ons or andats m compliance w~th tlus Artmle OWNER shall g~ve CONSULTANT reasonable advance notme of all intended examinations or audits C Venue of any stat or cause of action under th~s Agreement shall he exclusively ~n Denton ^,~o,~,~o~,c~w,,,on~.k~.,Ro~s^~ Page 9 of 11 County, Texas This Agreement shall be govemed by and construed in accordance with the laws of the State of Texas D For, purposes of this Agreement, the parties agree that the ProJect Manager shall be Dan'yl Corbln, Pnnclpal, and the key person who will perform and direct most of the work for the Project Team will be led by Pete Landgraf, ProJect Engineer This Agreement has been entered into with the tmderstandlng, expectation, and the OWNER's reliance, that the above- stated employees of CONSULTANT shall perform all or a significant portion of the work on the ProJect Any proposed changes regarding the change of the ProJect Manager or other key personnel, requested by CONSULTANT, respecting one or more of the above-stated employees, shall be subject to the approval of the OWNER, which approval the OWNER shall not unreasonably withhold Nothing hereto shall hmlt CONSULTANT from using other qualified and competent members of its firm to perform the other ~ncldental services reqmred herein, under its supervision or control E CONSULTANT shall commence, carry on, and complete ~ts work on the ProJect w~th all applicable d~spatch, and m a sound, economical, efficient manner, and in accordance with the provisions hereof In accomphshmg the ProJect, CONSULTANT shall take such steps as are appropriate to ensure that the work revolved is properly coordinated with any related work being earned on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all avmlable information pertinent to the ProJect, including previous reports, any other data relative to the ProJect and arranging for the access to, and make all provis~ons for the CONSULTANT to enter in or upon, pubhc and private property as required for the CONSULTANT to perform professional services under this Agreement OWNER and CONSULTANT agree that CONSULTANT is entitled to rely upon information furmshed to ~t by OWNER without the need for further inquiry or investigation into such information G The captions of fins Agreement are for ~nformatlonal purposes only and shall not in any way affect the substantive terms or cond~taons of this Agreement 1N WITNESS WHEREOF, the OWNER, the C~ty of Denton, Texas has executed th~s Agreement in slx (6) original counterparts, by and through its duly-authorized City Manager, and CONSULTANT has executed tlus Agreement by and through its duly-authorized undersigned officer on flus the r'~P~ day of , ¢~~k~ ,2001 "OWNER" CITY OF DENTON, TEXAS A Texas Municipal Corporation BY~jEZ,~vlC ATTEST JENNIFER WALTERS, CITY SECRETARY By , ~//f/x.~ J~A APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY "CONSULTANT" MONTGOMERY WATSON AMERICAS, INC A Cahfomla Corporation ATTEST Pagellofll