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7292-002 - Contract Executed Docusign Transmittal Coversheet File Name Purchasing Contact Contract Expiration DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 7292-002 Westgate Drive Traffic Study PSA n/a Cori Power City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 1 of 17 CITY OF DENTON, TEXAS STANDARD AGREEMENT FOR ENGINEERING RELATED PROFESSIONAL SERVICES This AGREEMENT is between the City of Denton, a Texas home-rule municipality ("CITY"), and Kimley-Horn and Associates, Inc., with its corporate office at 421 Fayetteville Street, Suite 600, Raleigh, NC 27601 and authorized to do business in Texas, ("ENGINEER"), for a PROJECT generally described as: Westgate Drive Traffic Study (the "PROJECT"). SECTION 1 Scope of Services A. The CITY hereby agrees to retain the ENGINEER, and the ENGINEER hereby agrees to perform, professional engineering services set forth in the Scope of Services attached hereto as Attachment A. These services shall be performed in connection with the PROJECT. B. Additional services, if any, will be requested in writing by the CITY. CITY shall not pay for any work performed by ENGINEER or its consultants, subcontractors and/or suppliers that has not been ordered in advance and in writing. It is specifically agreed that ENGINEER shall not be compensated for any additional work resulting from oral orders of any person. SECTION 2 Compensation and Term of Agreement A. The ENGINEER shall be compensated for all services provided pursuant to this AGREEMENT in an amount not to exceed $15,000 in the manner and in accordance with the fee schedule as set forth in Attachment B. Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment A. B. Unless otherwise terminated pursuant to Section 6. D. herein, this AGREEMENT shall be for a term beginning upon the effective date, as described below, and shall continue for a period which may reasonably be required for the completion of the PROJECT, until the expiration of the funds, or completion of the PROJECT and acceptance by the CITY, whichever occurs first. ENGINEER shall proceed diligently with the PROJECT to completion as described in the PROJECT schedule as set forth in Attachment D. SECTION 3 Terms of Payment Payments to the ENGINEER will be made as follows: DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 2 of 17 A. Invoice and Payment (1) The Engineer shall provide the City sufficient documentation, including but not limited to meeting the requirements set forth in the PROJECT schedule as set forth in Attachment D to reasonably substantiate the invoices. (2) The ENGINEER will issue monthly invoices for all work performed under this AGREEMENT. Invoices for the uncontested performance of the particular services are due and payable within 30 days of receipt by City. (3) Upon completion of services enumerated in Section 1, the final payment of any balance for the uncontested performance of the services will be due within 30 days of receipt of the final invoice. (4) In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. (5) If the CITY fails to make payment in full to ENGINEER for billings contested in good faith within 60 days of the amount due, the ENGINEER may, after giving 7 days' written notice to CITY, suspend services under this AGREEMENT until paid in full. In the event of suspension of services, the ENGINEER shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. SECTION 4 Obligations of the Engineer Amendments to Section 4, if any, are included in Attachment C. A. General The ENGINEER will serve as the CITY's professional engineering representative under this AGREEMENT, providing professional engineering consultation and advice and furnishing customary services incidental thereto. B. Standard of Care The ENGINEER shall perform its services: (1) with the professional skill and care ordinarily provided by competent engineers practicing in the same or similar locality and under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 3 of 17 care of a competent engineer. C. Subsurface Investigations (1) The ENGINEER shall advise the CITY with regard to the necessity for subcontract work such as special surveys, tests, test borings, or other subsurface investigations in connection with design and engineering work to be performed hereunder. The ENGINEER shall also advise the CITY concerning the results of same. Such surveys, tests, and investigations shall be furnished by the CITY, unless otherwise specified in Attachment A. (2) In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect the total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the ENGINEER. D. Preparation of Engineering Drawings The ENGINEER will provide to the CITY the original drawings of all plans in ink on reproducible mylar sheets and electronic files in .pdf format, or as otherwise approved by CITY, which shall become the property of the CITY. CITY may use such drawings in any manner it desires; provided, however, that the ENGINEER shall not be liable for the use of such drawings for any project other than the PROJECT described herein. E. Engineer's Personnel at Construction Site (1) The presence or duties of the ENGINEER's personnel at a construction site, whether as on-site representatives or otherwise, do not make the ENGINEER or its personnel in any way responsible for those duties that belong to the CITY and/or the CITY's construction contractors or other entities, and do not relieve the construction contractors or any other entity of their obligations, duties, and responsibilities, including, but not limited to, all construction methods, means, techniques, sequences, and procedures necessary for coordinating and completing all portions of the construction work in accordance with the AGREEMENT Documents and any health or safety precautions required by such construction work. The ENGINEER and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. (2) Except to the extent of specific site visits expressly detailed and set forth in Attachment A, the ENGINEER or its personnel shall have no obligation or responsibility to visit the construction site to become familiar with the progress DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 4 of 17 or quality of the completed work on the PROJECT or to determine, in general, if the work on the PROJECT is being performed in a manner indicating that the PROJECT, when completed, will be in accordance with the AGREEMENT Documents, nor shall anything in the AGREEMENT Documents or this AGREEMENT between CITY and ENGINEER be construed as requiring ENGINEER to make exhaustive or continuous on-site inspections to discover latent defects in the work or otherwise check the quality or quantity of the work on the PROJECT. If the ENGINEER makes on-site observation(s) of a deviation from the AGREEMENT Documents, the ENGINEER shall inform the CITY. (3) When professional certification of performance or characteristics of materials, systems or equipment is reasonably required to perform the services set forth in the Scope of Services, the ENGINEER shall be entitled to rely upon such certification to establish materials, systems or equipment and performance criteria to be required in the AGREEMENT Documents. F. Opinions of Probable Cost, Financial Considerations, and Schedules (1) The ENGINEER shall provide opinions of probable costs based on the current available information at the time of preparation, in accordance with Attachment A. (2) In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the PROJECT, the ENGINEER has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures and market conditions; time or quality of performance by third parties; quality, type, management, or direction of operating personnel; and other economic and operational factors that may materially affect the ultimate PROJECT cost or schedule. Therefore, the ENGINEER makes no warranty that the CITY's actual PROJECT costs, financial aspects, economic feasibility, or schedules will not vary from the ENGINEER's opinions, analyses, projections, or estimates. G. Construction Progress Payments Recommendations by the ENGINEER to the CITY for periodic construction progress payments to the construction contractor will be based on the ENGINEER's knowledge, information, and belief from selective sampling and observation that the work has progressed to the point indicated. Such recommendations do not represent that continuous or detailed examinations have been made by the ENGINEER to ascertain that the construction contractor has completed the work in exact accordance with the AGREEMENT Documents; that the final work will be acceptable in all respects; that the ENGINEER has made an examination to ascertain how or for what purpose the construction contractor has used the moneys paid; that title to any of the work, materials, DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 5 of 17 or equipment has passed to the CITY free and clear of liens, claims, security interests, or encumbrances; or that there are not other matters at issue between the CITY and the construction contractor that affect the amount that should be paid. H. Record Drawings Record drawings, if required, will be prepared, in part, on the basis of information compiled and furnished by others, and may not always represent the exact location, type of various components, or exact manner in which the PROJECT was finally constructed. The ENGINEER is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. I. Right to Audit (1) ENGINEER agrees that the CITY shall, until the expiration of five (5) years after final payment under this AGREEMENT, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of the ENGINEER involving transactions relating to this AGREEMENT. ENGINEER agrees that the CITY 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. The CITY shall give ENGINEER reasonable advance notice of intended audits. (2) ENGINEER further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant agrees that the CITY shall, until the expiration of five (5) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this section together with subsection (3) hereof. CITY shall give subconsultant reasonable advance notice of intended audits. (3) ENGINEER and subconsultant agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse ENGINEER for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 6 of 17 J. INSURANCE (1) ENGINEER’S INSURANCE a. Commercial General Liability – the ENGINEER shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000.00 per each occurrence with a $2,000,000.00 aggregate. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this PROJECT or location. i. The CITY shall be included as an additional insured with all rights of defense under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self- insurance programs afforded to the CITY. The Commercial General Liability insurance policy shall have no exclusions or endorsements that would alter or nullify: premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained within the policy, unless the CITY specifically approves such exclusions in writing. ii. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with this AGREEMENT. b. Business Auto – the ENGINEER shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of “any auto”, including owned, hired, and non-owned autos, when said vehicle is used in the course of the PROJECT. If the engineer owns no vehicles, coverage for hired or non-owned is acceptable. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by ENGINEER pursuant to this AGREEMENT or under any applicable auto physical damage coverage. c. Workers’ Compensation – ENGINEER shall maintain workers compensation and employers liability insurance and, if necessary, DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 7 of 17 commercial umbrella liability insurance with a limit of not less than $100,000.00 each accident for bodily injury by accident or $100,000.00 each employee for bodily injury by disease, with $500,000.00 policy limit. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer’s liability or commercial umbrella insurance obtained by ENGINEER pursuant to this AGREEMENT. d. Professional Liability – ENGINEER shall maintain professional liability, a claims-made policy, with a minimum of $1,000,000.00 per claim and aggregate. The policy shall contain a retroactive date prior to the date of the AGREEMENT or the first date of services to be performed, whichever is earlier. Coverage shall be maintained for a period of 5 years following the completion of the AGREEMENT. An annual certificate of insurance specifically referencing this PROJECT shall be submitted to the CITY for each year following completion of the AGREEMENT. (2) GENERAL INSURANCE REQUIREMENTS a. Certificates of insurance evidencing that the ENGINEER has obtained all required insurance shall be attached to this AGREEMENT prior to its execution. b. Applicable policies shall be endorsed to name the CITY an Additional Insured thereon, subject to any defense provided by the policy, as its interests may appear. The term CITY shall include its employees, officers, officials, agents, and volunteers as respects the contracted services. c. Certificate(s) of insurance shall document that insurance coverage specified in this AGREEMENT are provided under applicable policies documented thereon. d. Any failure on part of the CITY to attach the required insurance documentation hereto shall not constitute a waiver of the insurance requirements. e. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the respective Department Director (by name), City of Denton, 901 Texas Street, Denton, Texas 76209. f. Insurers for all policies must be authorized to do business in the State of DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 8 of 17 Texas and have a minimum rating of A:V or greater, in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. g. Any deductible or self insured retention in excess of $25,000.00 that would change or alter the requirements herein is subject to approval by the CITY in writing, if coverage is not provided on a first-dollar basis. The CITY, at it sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to the CITY. h. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. i. The CITY shall be entitled, upon its request and without incurring expense, to review the ENGINEER's insurance policies including endorsements thereto and, at the CITY's discretion; the ENGINEER may be required to provide proof of insurance premium payments. j. Lines of coverage, other than Professional Liability, underwritten on a claims-made basis, shall contain a retroactive date coincident with or prior to the date of the AGREEMENT. The certificate of insurance shall state both the retroactive date and that the coverage is claims-made. k. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. l. The CITY shall not be responsible for the direct payment of any insurance premiums required by this AGREEMENT. m. Sub consultants and subcontractors to/of the ENGINEER shall be required by the ENGINEER to maintain the same or reasonably equivalent insurance coverage as required for the ENGINEER. When sub consultants/subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a certificate of insurance. K. Independent Consultant The ENGINEER agrees to perform all services as an independent consultant and not as a subcontractor, agent, or employee of the CITY. The doctrine of respondeat superior shall not apply. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 9 of 17 L. Disclosure The ENGINEER acknowledges to the CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed PROJECT and business relationships with abutting property cities. The ENGINEER further acknowledges that it will make disclosure in writing of any conflicts of interest that develop subsequent to the signing of this AGREEMENT and prior to final payment under the AGREEMENT. M. Asbestos or Hazardous Substances (1) If asbestos or hazardous substances in any form are encountered or suspected, the ENGINEER will stop its own work in the affected portions of the PROJECT to permit testing and evaluation. (2) If asbestos or other hazardous substances are suspected, the CITY may request the ENGINEER to assist in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. N. Permitting Authorities - Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which the ENGINEER should have been aware of at the time this AGREEMENT was executed, the ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards criteria which are published after the date of this AGREEMENT which the ENGINEER could not have been reasonably aware of, the ENGINEER shall notify the CITY of such changes and an adjustment in compensation will be made through an amendment to this AGREEMENT. O. Schedule ENGINEER shall manage the PROJECT in accordance with the schedule developed per Attachment D to this AGREEMENT. P. Equal Opportunity (1) Equal Employment Opportunity: ENGINEER and ENGINEER’s agents shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this AGREEMENT. (2) Americans with Disabilities Act (ADA) Compliance: ENGINEER and DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 10 of 17 ENGINEER’s agents shall not engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. SECTION 5 Obligations of the City Amendments to Section 5, if any, are included in Attachment C. A. City-Furnished Data ENGINEER may rely upon the accuracy, timeliness, and completeness of the information provided by the CITY. B. Access to Facilities and Property The CITY will make its facilities accessible to the ENGINEER as required for the ENGINEER's performance of its services. The CITY will perform, at no cost to the ENGINEER, such tests of equipment, machinery, pipelines, and other components of the CITY's facilities as may be required in connection with the ENGINEER's services. The CITY will be responsible for all acts of the CITY's personnel. C. Advertisements, Permits, and Access Unless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange, and pay for all advertisements for bids; permits and licenses required by local, state, or federal authorities; and land, easements, rights-of-way, and access necessary for the ENGINEER's services or PROJECT construction. D. Timely Review The CITY will examine the ENGINEER's studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with the PROJECT schedule prepared in accordance with Attachment D. E. Prompt Notice The CITY will give prompt written notice to the ENGINEER whenever CITY observes or becomes aware of any development that affects the scope or timing of the ENGINEER's services or of any defect in the work of the ENGINEER or construction contractors. F. Asbestos or Hazardous Substances Release. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 11 of 17 (1) CITY acknowledges ENGINEER will perform part of the work at CITY's facilities that may contain hazardous materials, including asbestos containing materials, or conditions, and that ENGINEER had no prior role in the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of City, City hereby releases ENGINEER from any damage or liability related to the presence of such materials. (2) The release required above shall not apply in the event the discharge, release or escape of hazardous substances, contaminants, or asbestos is a result of ENGINEER’s negligence or if ENGINEER brings such hazardous substance, contaminant or asbestos onto the PROJECT. G. Contractor Indemnification and Claims The CITY agrees to include in all construction contracts the provisions of Article IV.E. regarding the ENGINEER's Personnel at Construction Site, and provisions providing for contractor indemnification of the CITY and the ENGINEER for contractor's negligence. H. Contractor Claims and Third-Party Beneficiaries (1) The CITY agrees to include the following clause in all contracts with construction contractors and equipment or materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain no direct action against the ENGINEER, its officers, employees, and subcontractors, for any claim arising out of, in connection with, or resulting from the engineering services performed. Only the CITY will be the beneficiary of any undertaking by the ENGINEER." (2) This AGREEMENT gives no rights or benefits to anyone other than the CITY and the ENGINEER and there are no third-party beneficiaries. (3) The CITY will include in each agreement it enters into with any other entity or person regarding the PROJECT a provision that such entity or person shall have no third-party beneficiary rights under this AGREEMENT. (4) Nothing contained in this Section H. shall be construed as a waiver of any right the CITY has to bring a claim against ENGINEER. I. CITY's Insurance (1) The CITY may maintain property insurance on certain pre-existing structures associated with the PROJECT. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 12 of 17 (2) The CITY may secure Builders Risk/Installation insurance at the replacement cost value of the PROJECT. The CITY may provide ENGINEER a copy of the policy or documentation of such on a certificate of insurance. J. Litigation Assistance The Scope of Services does not include costs of the ENGINEER for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the CITY. In the event CITY requests such services of the ENGINEER, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties. K. Changes The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the ENGINEER's cost of or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate CITY approval. SECTION 6 General Legal Provisions Amendments to Section 6, if any, are included in Attachment C. A. Authorization to Proceed ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the ENGINEER, whether in hard copy or in electronic form, are instruments of service for this PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by the CITY or by others acting through or on behalf of the CITY of any such instruments of service without the written permission of the ENGINEER will be at the CITY's sole risk. The CITY shall own the final designs, drawings, specifications and documents. C. Force Majeure The ENGINEER is not responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the ENGINEER that prevent ENGINEER’s performance of its obligations hereunder. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 13 of 17 D. Termination (1) This AGREEMENT may be terminated: a. by the City for its convenience upon 30 days' written notice to ENGINEER. b. by either the CITY or the ENGINEER for cause if either party fails substantially to perform through no fault of the other and the nonperforming party does not commence correction of such nonperformance within 5 days’ written notice or thereafter fails to diligently complete the correction. (2) If this AGREEMENT is terminated for the convenience of the City, the ENGINEER will be paid for termination expenses as follows: a. Cost of reproduction of partial or complete studies, plans, specifications or other forms of ENGINEER'S work product; b. Out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; c. The time requirements for the ENGINEER'S personnel to document the work underway at the time of the CITY'S termination for convenience so that the work effort is suitable for long time storage. (3) Prior to proceeding with termination services, the ENGINEER will submit to the CITY an itemized statement of all termination expenses. The CITY'S approval will be obtained in writing prior to proceeding with termination services. E. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the services of the ENGINEER for the convenience of the CITY. In the event of such suspension, delay, or interruption, an equitable adjustment in the PROJECT's schedule, commitment and cost of the ENGINEER's personnel and subcontractors, and ENGINEER's compensation will be made. F. Indemnification IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE SECTION 271.904, THE ENGINEER SHALL INDEMNIFY OR HOLD HARMLESS THE CITY AGAINST LIABILITY FOR ANY DAMAGE COMMITTED BY THE ENGINEER OR ENGINEER’S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE ENGINEER EXERCISES CONTROL TO THE EXTENT THAT THE DAMAGE IS CAUSED BY OR RESULTING FROM AN ACT OF NEGLIGENCE, INTENTIONAL DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 14 of 17 TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER. CITY IS ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES IN PROPORTION TO THE ENGINEER’S LIABILITY. G. Assignment Neither party shall assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Jurisdiction The law of the State of Texas shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. The venue for any litigation related to this AGREEMENT shall be Denton County, Texas. I. Severability and Survival If any of the provisions contained in this AGREEMENT are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Sections 5.F., 6.B., 6.D., 6.F., 6.H., and 6.I. shall survive termination of this AGREEMENT for any cause. J. Observe and Comply ENGINEER shall at all times observe and comply with all federal and State laws and regulations and with all City ordinances and regulations which in any way affect this AGREEMENT and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. ENGINEER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ALL OF ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS OR LIABILITY ARISING OUT OF THE VIOLATION OF ANY SUCH ORDER, LAW, ORDINANCE, OR REGULATION, WHETHER IT BE BY ITSELF OR ITS EMPLOYEES. K. Immigration Nationality Act ENGINEER shall verify the identity and employment eligibility of its employees who perform work under this AGREEMENT, including completing the Employment Eligibility Verification Form (I-9). Upon request by CITY, ENGINEER shall provide CITY with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this AGREEMENT. ENGINEER shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any ENGINEER employee who is not legally eligible to perform DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 15 of 17 such services. ENGINEER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ENGINEER, ENGINEER’S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. CITY, upon written notice to ENGINEER, shall have the right to immediately terminate this AGREEMENT for violations of this provision by ENGINEER. L. Prohibition On Contracts With Companies Boycotting Israel ENGINEER acknowledges that in accordance with Chapter 2270 of the Texas Government Code, CITY is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this AGREEMENT, ENGINEER certifies that ENGINEER’S signature provides written verification to the CITY that ENGINEER: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the AGREEMENT. Failure to meet or maintain the requirements under this provision will be considered a material breach. M. Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Section 2252 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this AGREEMENT, ENGINEER certifies that ENGINEER’S signature provides written verification to the CITY that ENGINEER, pursuant to Chapter 2252, is not ineligible to enter into this AGREEMENT and will not become ineligible to receive payments under this AGREEMENT by doing business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. N. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation as defined in the City’s Ethic Ordinance 18-757 and in the City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City’s Conflict of Interest Questionnaire. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 16 of 17 O. Agreement Documents This AGREEMENT, including its attachments and schedules, constitutes the entire AGREEMENT, which supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. This AGREEMENT may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. The following attachments and schedules are hereby made a part of this AGREEMENT: Attachment A - Scope of Services Attachment B - Compensation Attachment C - Amendments to Standard Agreement for Engineering Services Attachment D - Project Schedule These documents make up the AGREEMENT documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the AGREEMENT documents, the inconsistency or conflict shall be resolved by giving precedence first to the written AGREEMENT then to the AGREEMENT documents in the order in which they are listed above. Duly executed by each party’s designated representative to be effective on the date subscribed by the City Manager. BY: CITY OF DENTON, TEXAS BY: ENGINEER Authorized Agent Date: _______________________ Kimley-Horn and Associates, Inc. Scott R Arnold, P.E. Vice President Date: ____________________________ THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _________________________ _________________________ Signature Department _________________________ Date: ____________________ Title DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 Director of Capital Projects/City Engineer Capital Projects/Engineering 7/1/2021 7/1/20217/1/2021 City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 17 of 17 DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 ATTACHMENT ADESIGN SERVICES FOR WESTGATE DRIVE TRAFFIC STUDY City of Denton, Texas Attachment A Page 1 of 2 ATTACHMENT "A" Scope for Engineering Design Related Services for: Westgate Drive Traffic Study The ENGINEER will perform its services pursuant to the requirements delineated below. Services under this attachment include engineering services for the Westgate Drive Traffic Study. Project Understanding ENGINEER will provide engineering services for the Westgate Drive Traffic Study. The ENGINEER will recommend improvements to existing vehicular, pedestrian and bicycle infrastructure with the study area. ENGINEER’s scope of services is as follows: §Task 1 – Westgate Drive Traffic Study Task 1 Westgate Drive Traffic Study ENGINEER will provide a technical memorandum to the CITY evaluating the need for the Westgate/Bronco roadway extension, Westgate connection to the north, pedestrian/bike connectivity, and overall connectivity in regards to the Mobility Plan for the area bounded by IH- 35, W Windsor Drive, N Bonnie Brae Street, and US 77/Loop 288. The following sub tasks will be performed: A.The ENGINEER will analyze traffic data provided by the CITY to develop existing year (2021) baseline volumes along W Windsor Drive, N Bonnie Brae Street, and Westgate/Bronco. Turning movement counts at the W Windsor Drive and Westgate Drive intersection will also be included. No addition data collection will be conducted. B.The ENGINEER will analyze future development information provided by the CITY to project volumes at the three (3) roadways, one (1) existing Westgate Drive intersection, and one (1) future Westgate Drive intersection mentioned above for the study years of 2026 and 2040. C.The ENGINEER will summarize the traffic volume data for the Existing (2021), 2026, and 2040 study scenarios in an exhibit. Both Build and No Build roadway network options will be provided. D.The ENGINEER will perform thoroughfare capacity analyses based on volume to capacity ratios for the Existing (2021), 2026, and 2040 study scenarios at the three (3) roadways mentioned above. The future analysis years will consider No Build and Build scenarios, which will assume the cross sections as provided in the Mobility Plan. E.The ENGINEER will perform intersection capacity analyses using Synchro software for the Existing (2021), 2026, and 2040 study scenarios at one (1) existing Westgate Drive intersection, and one (1) future Westgate Drive intersection. The future analysis years DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 ATTACHMENT ADESIGN SERVICES FOR WESTGATE DRIVE TRAFFIC STUDY City of Denton, Texas Attachment A Page 2 of 2 will consider No Build and Build scenarios, which will assume the cross sections as provided in the Mobility Plan. F.The ENGINEER will consider the Mobility Plan to evaluate pedestrian and bike connectivity. G.The ENGINEER will submit a technical memorandum summarizing the findings of the study to the CITY for review. H.The ENGINEER will address one (1) round of comments and provide a final technical memorandum to the CITY. Deliverables: A.One (1) electronic copy of the final Westgate Drive Traffic Study to the CITY. Additional Services not included in the existing Scope of Services CITY and ENGINEER agree that the following services are beyond the Scope of Services described in the tasks above. However, ENGINEER can provide these services, if needed, upon the CITY’s written request. Any additional amounts paid to the ENGINEER as a result of any material change to the Scope of the Project shall be agreed upon in writing by both parties before the services are performed. These additional services include the following: A.Design services related to any recommended improvements B.Preparation of 30%, 60%, 90% and final plans C.Topographic survey D.Meetings with the CITY E.Additional development considerations F.Additional network considerations G.Additional thoroughfare and intersection capacity analysis H.Additional study years I.Public involvement J.Any items not expressly described in the scope above DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 ATTACHMENT BCOMPENSATION FOR WESTGATE DRIVE TRAFFIC STUDY PROJECT City of Denton, Texas Attachment B Page 1 of 1 ATTACHMENT "B" Compensation for Engineering Design Related Services for: Westgate Drive Traffic Study Total compensation for the ENGINEER contemplated under the terms of this agreement shall be lump sum total not-to-exceed $15,000 for all services including reimbursable expenses. The CITY shall compensate the ENGINEER as follows: The total compensation for Task 1 shall be on a lump sum basis and not to exceed $15,000. Progress payments for shall be paid monthly based on the actual work satisfactorily completed per month. ·Task 1 – Westgate Drive Traffic Study $ 15,000 Sub-total: $ 15,000 Grand Total $15,000 ENGINEER will not exceed the total maximum fee shown without authorization from the CITY. All permitting, application, and similar project fees will be paid directly by the CITY. Payment will be due within 30 days of your receipt of the invoice and should include the invoice number and ENGINEER project number. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 City of Denton, Texas Page 1 of 1 ATTACHMENT “C” CHANGES AND AMENDMENTS TO STANDARD AGREEMENT Design Services for Westgate Drive Traffic Study No modifications to the Standard Agreement are necessary for this project. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 TASK START DATE Project Initiation Notice to Proceed Jun-21 Jun-21 Traffic Study Analyze Existing Data Jun-21 Jul-21 Draft Report Submittal Jul-21 Jul-21 City Review Jul-21 Jul-21 Final Report Submittal Jul-21 Aug-21 Due to the everchanging circumstances surrounding the COVID-19 Virus, situations may arise during the performance of this Agreement that affect availability of resources and staff of ENGINEER, the CITY, other consultants, and public agencies. There could be changes in anticipated delivery times, jurisdictional approvals, and project costs. The ENGINEER will exercise reasonable efforts to overcome the challenges presented by current circumstances, but the ENGINEER will not be liable to the CITY for any delays, expenses, losses, or damages of any kind arising out of the impact of the COVID-19 Virus. Attachment "D" Westgate Drive Traffic Study Kimley-Horn and Associates, Inc. DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 Name of local government officer about whom the information in this section is being disclosed. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. 4 I have no Conflict of Interest to disclose. 5 Signature of vendor doing business with the governmental entity Date DocuSign Envelope ID: FD4C5831-31D1-4779-A508-64149359E516 Kimley-Horn and Associates, Inc. Exhibit CIQ X N/a 7/1/2021 Certificate Of Completion Envelope Id: FD4C583131D14779A50864149359E516 Status: Completed Subject: ***Purchasing Approval*** 7292-002 Westgate Drive Traffic Study PSA Source Envelope: Document Pages: 24 Signatures: 4 Envelope Originator: Certificate Pages: 5 Initials: 1 Cori Power AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 cori.power@cityofdenton.com IP Address: 198.49.140.104 Record Tracking Status: Original 7/1/2021 1:23:39 PM Holder: Cori Power cori.power@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.104 Sent: 7/1/2021 1:28:03 PM Viewed: 7/1/2021 1:28:10 PM Signed: 7/1/2021 1:29:38 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.104 Sent: 7/1/2021 1:29:40 PM Viewed: 7/1/2021 1:38:46 PM Signed: 7/1/2021 1:39:15 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Rebecca Diviney Rebecca.Diviney@cityofdenton.com Director of Capital Projects/City Engineer Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 7/1/2021 1:39:17 PM Viewed: 7/1/2021 2:11:59 PM Signed: 7/1/2021 2:12:56 PM Electronic Record and Signature Disclosure: Accepted: 7/1/2021 2:11:59 PM ID: a33a7d61-b958-42d3-872d-7b45875ef165 Scott Arnold Scott.arnold@kimley-horn.com Vice President Kimley-Horn and Associates, Inc. Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 107.77.206.7 Signed using mobile Sent: 7/1/2021 1:39:17 PM Viewed: 7/1/2021 3:19:57 PM Signed: 7/1/2021 3:20:24 PM Electronic Record and Signature Disclosure: Accepted: 3/27/2020 10:55:11 AM ID: a1f38400-e5cc-4b57-8548-4dd7e031355d Signer Events Signature Timestamp Cori Power cori.power@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.104 Sent: 7/1/2021 3:20:26 PM Viewed: 7/1/2021 4:11:09 PM Signed: 7/1/2021 4:11:34 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Contract Administrator City of Denton Security Level: Email, Account Authentication (None) Sent: 7/1/2021 4:11:36 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Tiffany Styles Tiffany.Styles@cityofdenton.com Security Level: Email, Account Authentication (None) Sent: 7/1/2021 4:11:36 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Chandra Muruganandham Chandrakanth.Muruganandham@cityofdenton.com Security Level: Email, Account Authentication (None) Sent: 7/1/2021 4:11:37 PM Viewed: 7/1/2021 4:35:26 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 7/1/2021 1:28:03 PM Certified Delivered Security Checked 7/1/2021 4:11:09 PM Signing Complete Security Checked 7/1/2021 4:11:34 PM Completed Security Checked 7/1/2021 4:11:37 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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