CP&Y Engineering Services for Landfill-5349-Award/Ordinance/Pricing (2)THE STATE OF TEXAS )
)
COUNTY OF DENTON )
PROFESSIONAL SERVICES AGR EEME NT FOR ENGINE ERING FIRM
FILE 5349
5C 111 I THIS AGREEMENT i s made and entered into as of the~ day of atc(!ii~ , 2013,
by and between the C ity of Denton, Texas, a Texas municipal corporation, with its principal
office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called
"Owner" and the firm ofCP&Y, Inc. (hereafter "CP&Y), with its corporate office at 1820 Regal
Row, Suite 200, Dallas, Texas 75235, hereinafter called "Design Professional," acting herein, by
and through their duly authorized representative s and officers.
In consideration of the covenants, promises and the agreements herein contained, the parties
hereto do mutuall y AGR EE as follows:
SECTION 1
EMPLOYMENT OF ENGINEERING AND DESIGN PROFESSIONAL
The Owner hereby contracts with the Design Professional, a licensed Texas engineering
firm, and planning consultant, as an independent contractor. The Design Professional hereby
agrees to perform the services as described herein and in the Design Professional's Proposal
dated August 15, 2013, limited to those task s described therein in Exhibit A-"Proposal for
Professional Services -General Engineering Services;" and the General Conditions made a part
hereof, and other attachments to this Agreement that are referenced herein, in connection with
the Projects.
SECTION2
TERM OF AGREEMENT
Time is of the essence in this Agreement. Design Professional shall begin work
immediately upon the issuance of a notice to proceed from the Owner and shall complete all
wo rk in a timely mann er in accordance with the time allotted for each task as established by the
General Manager , Solid Waste Department and the Design Professional. All tasks are to be
completed within the sc hedules established by the General Manager, Solid Waste Department
and the Design Profess iona l, unless the time for completion has been extended by the General
Manager, Solid Waste Department.
SECTION3
COMPENSATION
The Owner shall compensate the Design Profe ss ional as follows:
PSA 5349
Page 1
3.1 BASIC SERVICES .
3 .1.1 For Basic Services the total compensation including reimbursable expenses shall be
not to exceed $150,000 based on the hourly rates for services shown in Exhibit ''A"
and Section 3.2.1. Design Professional services shall be invoiced to the Owner
monthly.
3.1.2 Progress payments shall be paid to the Design Professional monthly for the Basic
Services invoiced and satisfactorily completed.
3.2 ADDITIONAL SERVICES.
3.2. 1 Compensation for professional services is as follows per Exhibit "A" (through
December 31, 2014 ), and to be re-negotiated thereafter:
Principal
Senior Associate Engineer
Senior Engineer
Project Engineer
Engineer in Training
Drafterffechnician
ClericaVAdministrative
$185-230 per hour
$170-215 per hour
$135-180 per hour
$95-150 per hour
$75-I 15 per hour
$55-95 per hour
$35-65 per hour
3.2.2 Compensation for Additional Services of consultants, including any additional
structural, mechanical and electrical engineering services shall be based on a
multiple of 1.0 times the amounts billed to the Design Professional for such
additional services.
3.3 REIMBURSABLE EXPENSES. Reimbursable Expenses shall be a multiple of 1.0 times the
expenses incmred by the Design Professional, the Design Professional's employees and
consultants in the interest of the Project as defined in the General Conditions.
SECTION4
ENTIRE AGREEMENT
This Agreement includes this executed agreement and the following documents all of which
are attached hereto and made a part hereof by reference as if fully set forth herein:
1 . City of Denton General Conditions to Agreement for Architectural or Engineering
Services.
2 . Exhibit ''A"-Proposal for Professional Services-General Engineering Services-
Fiscal Year 2014 (Letter to Vance Kemler, General Manager, Solid Waste
Department dated August 15, 2013)
PSA 5349
Page2
These documents make up the "Agreement documents" and what is called for by one shall be as
binding as if called for by all. ln 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 to
this Professional Services Agreement for Engineering Firm, then to the Agreement documents in
the order in which they are listed above.
This Agreement is signed by the parties hereto effective as of the date first above written.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPRO D AS T · LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
PSA 5349
"OWNER"
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
B · 0 GE C. CAMPBELL
CITY MANAGER
''DESIGN PROFESSIONAL"
CP&Y, INC.
A Texas Corporation
By:
William E. Carroll, P .E.
Senior Vice President
Page3
Signature on File
Signature on File
Signature on File
Signature on File
WITNESS :
By:
PSA 5349 Page 4
Signature on File
CITY OF D E NTON
GENERAL CON DITIONS
TO
AGR EE MENT FOR ARCHITECT U RAL OR ENGINEERING SERVICES
ARTICLE I. ARCHITECT OR ENGINEER'S RESPONSIBILITIES
1.l The Arc hitect or Engineer's services consis t of those services for the Project (as defined in the agreement (the "Agreement'') and prop osal (the
"Proposal ") to which these General Conditions are attached) perfonned by the Architect or Engineer (herein afte r called the "'Design Professi ona l ") or
Design Profess ional's employees and consultants as enumerated in Article s 2 and 3 of these General Conditions as modified by the Agreement and Proposal
(the "Serv ices ").
1 .2 The Design Professional will perform all Services as an independent contracto r to the prevailing professional standards consist en t with the level of care
and skill ordinari ly exercised by member s of the same profession currently prac t icing in the same loca l ity u nder si milar conditions, including reasonable,
informed judgments and prompt timely a<..tions (the "Degree of Care ''). The Services shall be performed as expeditiously as is consistent with the Degree of
Car e necessary for th e orderly progress of the Project. U p on reque.-.t of the Owner, the Design P rofessional s hall su bmi t for the Owner's approval a
schedule for the petformance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of t im e required for
the Owner's review and tor approval of su bmissions by authorities having jurisdiction over the Project. Time limits establish ed by this schedule and
approved by the Owner shall not, except for reasonab le cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall
be mutually accep table to both parties.
ARTICLE 2 SCOPE OF BASIC SERVICES
2.1 BA S I C SERVICES DEFINED The Design Professional's Basic Services consist of those describ ed in Sections 2.2 through 2.6 of these General
Conditions and include without limitation normal structural, civil, mechanical and electrical engineering services and any oth er engineering services
necessary to produce a complete and accurate set of Construction Do cumen t s, as described by an d required in Section 2.4. The B asic Services may be
modified by the Agreement.
2.2 SC HEMA TIC DESIGN PHASE
2.2.1 The Design Profession al, in consu ltation with the Owner , shall d eve lop a written program for the Project to ascertain Owner's ntleds and to
estab li sh the requirements for the Project.
2.2.2 The Design Profession al shall provide a preliminary evaluation of the Owner's program , oon struc tion schedule and constructi on budget
requiremen ts, each in terms of the other, subject to the limitation s se t forth in S ubsection 5.2.1.
2 .2.3 Tite Design Pro fessional shall review with the Owner alternative approaches to design and construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requiremen ts, the Design Professional shall prepare, for
approYdl by the Owner , Schematic Design D ocuments consisting of drdwings and other documents illustrating the scale and r elation&lip of Project
components. The Schematic Desi gn shall contempl ate compliance with a ll applicable laws, statutes, ordinances, codes and regulations.
2.2.5 The Design Professio nal sha ll submit to the Owner a prelimin ary detailed estimate of Construt-tion Cost based on current area, volume or
othe r unit costs and which indic ates t h e cos t of each category of w ork involved in constructing the Proj ect and establishes an elapsed tim e factor for
t h e period of time from the com mencemen t to the completion of construction.
2.3 D ES I G N DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments authoriLed by the Owner in the p r ogram, schedule or construction
budget, the Design Professional sha ll prepare for approval by the Owner, Des i gn Develop men t Documen ts consisting of drawings and other
documents to fix aod describe the s i7.e and character of the Project as to arch it ectura~ structura~ mechanica l and electrical systems, materials and
such other elements as ma y be appro priate, which shall comply w i th all applicable laws, statutes, ordinances, codes and regulations.
Notwith s tanding Owner's approval of the documents, De sign Professional represents that the Documents and specifications will be sufficient and
adequate to fulfill the purpo ses of the Project.
2.3.2 The Design Professional s h a ll adv ise the Owner of any adjustments to the preliminary estimat e of Co nstmction Cost in a further Detailed
Staten 1ent as desctibed in Section 2.2.5.
2.4 CONSTRUCTION DOCUMENTS PHASE
2A .l Based on the approved Design Development Documents and any further adjustments i n the scope or quality of t h e Project or in the
construction budget authorized by the Owner, the D esign Prof essional shall prepare, for approval by the Owner, Construction Do<..'Uffients
consisting of Drawings a n d Specifications setting forth in deta il requirements for t h e construction of the Project, which shall comply with all
app li cable l a\vs, s t atutes, ordi n ances, codes and regulations.
PS A 5349
Page 5
2.4.2 l11e Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or
procurement torms, the Conditions of the contract, and the form of Agreement between the Owner and contnu.:tor.
2.4.3 The Design Professional slJaJI advise the Owner of any adjustment~ to previous preliminary estimates of Construction Cost indicated by
changes in requirements or general market oonditions.
2.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents rtx~uired for the approval
of governmental authorities having jurisdiction over the Project.
2.5 CONSTRUCTION CONTRACT PROCUREMENT
2.5.1 The Design Professional, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of
Construction Cost, shall assist the Owner in procuring a consttuction contract for the Project through any procurement method that is legally
applicable to the Project including without limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the
Design Professional, the award of the construction contract is in the sole discretion of the Owner.
2.5.2 lf the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed
Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and
expense, will revise the Construction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that
the total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable
Construction Costs.
2.6 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the
award of the Contract for Construction and terminate.~ at the issuance to the Owner of the final Certificate for Payment, w1lcss extended under the
tenns of Subsection 8.3.2.
2.6.2 The Design Professional slJall provide detailed administration of the Contract for Construction as set forth below. For design professionalss
the administration shall also he in accordance with AlA document A201, General Conditions of the Contract for Construction, current as of the
date of the Agreement as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers
the administration shall also be in accordance with the Standard Specifications tor Public Works Construction by the North Central Texas Council
of Governments, cutrent as of the date of the Agreement, unless othmvise provided in the Agreement.
2.6.3 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended
without written agreement of the Owner and Design Professional.
1.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (I) during construction, and (2) at the
Owner's direction from time to time during the correction, or warranty period described in the Contract tor Construction. The Design Professional
shall have authority to act on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless othc;:rwise
modified by written instrument.
2.6.5 The Design Professional shall observe the construction site at le&;t one time a week, while construl-1ion is in progress, and as reasonably
necessary while construction is not in progress, to become familiar with the progress and quality of the work completed and to determine if the
work is being pcrtbnned in a manner indicating that the work when completed will be in accordance with the Contract Documents. Design
Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on-site observations the Design Professional
shall keep the Owner informed of the prog~"ess and quality of the work, and shall exercise the Degree of Care and diligence in discovering and
promptly reporting to the Owner any observable deftx-1s or deficiencies in the work of Contractor or any subcontractors. The Design Professional
represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any
defective designs or specifications furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, U!;e of or
payment for all or any part of the Design Professional's Services hereunder or of the Project it!;eif shall in no way alter the Design Professional's
obligations or the Ownet's rights hereunder.
1.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques,
sequences or procedures, or for safety precautions and progranJs in connection with the work. The Design Professional shall not be responsible for
the Contractor's schedules or failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result
from Design Professional's negligent acts or omissions. The Design Professional ~hall not have control over or charge of acts or omissions of the
Conn-actor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work.
2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress.
PSA 5349
Page 6
2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Own~:r
and Contractor shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be
through the Design Professional.
2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractor's Applications for Payment, the
Design Professional shall review and certify the amounts due the Contractor.
1.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional 's obser-
vatiom; at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the work has
progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are
subje1..1 to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Design
Profe.~sional. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the
amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (I) reviewed
construction means, metl1ods, techniques, sequences or procedut~. or (2) ascertained how or for what purpose the Contractor has used money
previously paid on account of the Contract Sum.
1.6.11 The Design Professional shall have the responsibility and authotity to reject work which does not confonn to tlte Contract Documents.
Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design
Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract
Documents, whether or not such Work is fabricated, installed or completed. Howevt:r, neither this authority of the Design Professional nor a
decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to
the Contra1..1or, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work.
2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings,
Product Data and Samples for the purpose of (I) determining compliance with applicable laws, statutes, onlinances and codes; and (2) detennining
whether or not the work, when completed, will be in compliance witlt the requirements of the Contract Documents. The Design Professional shall
act with such reasonable promptness to cause no delay in the work or in the consn'Ucrion of the Own~:r or of separate contractors, while allowing
sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the
purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for
installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the
extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions or, unless
othenvise specifically stated by the Design Professional, of con~truction means, methods, techniques, sequences or procedures. The Design
Professional's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional
certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Design Protessional shall
be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the
Contra1..1 Documents.
1.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if
deemed necessaty by the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Ownet's approval and execution in accordance
with the Contract Documents, and may authorize minor changes in tlte work not involving an adjustment in the Contract Sum or an extension of the
Conn'8Ct Time which are not inconsistent with the intent of the Contract Documents.
2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final
Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion. The Design Professional will receive and
review written guarantees and related documents required by the Contract for Construction to he assembled by the Contra.ctor and shall issue a final
certificate for Payment upon compliance with the requirements of the Contract Documents.
2.6.15 The Design Professional shall interpret and provide reconunendations on matters concerning pertonnance of the Owner and Contractor
under the requirements of the Contract Documents on wtitten request of either the Owner or Contractor. The Design Professional's response to
such reque.~ts shall be made with reasonable promptness and within any time limits agreed upon.
1.6.16 Interpretations and decisions of the Design Professional shall be consib1ent with the intent of and reasonably inferable thnn the Contract
Documents and shall be in writing or in the tonn of drawings. When making such interpretations and initial decisions, the Design Professional
shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so
rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence.
2.6.17 The Design Professional shall rend~:r wt·ittcn decisions within a reasonable time on all claims, disputes or other matters in que.~tion between
the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents.
1.6.18 The Design Professional (I) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner
for all damages caused by the defective designs the Design Professional prepare.~; and (3} by acknowledging payment by the Owner of any tees
due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations
thereunder.
PSA 5349
Page 7
2.6.19 TI1e Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Constt11ction
Documents during the Construction Phase.
ARTICLE 3 ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not included in Basic Service~ unless so identified in the A.,oreement or Proposal, and they shall be
paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2
and 3.4 shall only be provided if authorized or confinned in writing by the Owner. (f st:rvices described under Contingent Additional Services in
Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing
and shall not commence such additional service~ until it receives written approval from the 0\VIter to proceed. If the Owner indicates in writing
that all or part of such Contingent Additional Services are not required, the Design Professional shall have no obligation to provide those services.
Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the
negligence or fault of Design Professional.
3.1 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1 If more extensive repre~entation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or
more Project Representatives to assist in canying out such additional on-site responsibilities.
3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be com-
pensated therefor as agreed by the Owner and Design Professional.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are:
I. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments
in the Owner's program or Project budget;
2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or
3. due to changes required as a result of the Owner's failure to render decision in a timely manner .
3.3.2 Providing services requirtxl because of significant changes in the Project including, but not limited to, size, quality, complexity, or the
Owner's schedule, except tor services required under Subsection 2.5.2.
3.3.3 Preparing Drawings, Specification~ and other documentation and supporting data, and providing other services in connection with Change
Orders and Con~trut..1ion Change Directives.
3.3.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required
in connection with the replacement of such work.
3.3.5 Providing services made necessary by the default of the Contractor, by major defe(,1~ or deficiencies in the work of the Contractor, or by
failure of performance of either the Owner or Contractor under the Contract for Construction.
3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work.
3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is
party thereto.
3.3.8 Providing services in addition to those required by Article 2 for prepating documents for alternate, separate or sequential bids or providing
services in connection 'vith bidding or construction prior to the completion of the Construction Documents Phase.
3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services de~cdbed in this
Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be perfmmed by
the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation
due the Design Protessional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design
Professional's obligations under this Sub~ection 3.3.9.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing financial feasibility or other special studies.
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Page 8
3.4.2 Providing planning surveys, site evaluations or comparative studie.~ of prospective sites.
3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having
jurisdiction over the Project.
3.4.4 Providing services relative to future facilities, systems and equipment.
3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof.
3.4.6 Providing services to verifY the accuracy of drawings or other information furnished by the Owner.
3.4.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required
in connection with consttUction perfmmed and equipment supplied by the Owner.
3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor.
3.4.9 Providing analyses of operating and maintenance costs.
3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities.
3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and
maintenance manuals, training personnel for operation and maintenance and consultation during operation.
3.4.13 Providing interior design and similar services required for or in comtection with the selection, procurement or installation of furniture,
furnishings and related equipment.
3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the tina! Certificate for Payment and expiration of
the Warranty period of the Contract for Construction.
3.4.15 Providing services of consultants tor other than architectural, civil, structural, mechanical and electrical engineering pOttions of the Project
provided as a part of Basic Setvices.
3.4.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted
architectural practice.
3.4.17 Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work
made during construction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional.
3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this
Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be pertormed by
the Design Professional as a part of the Basic Savices under the Agreement with no additional compensation above and beyond the compensation
due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Ownt:l' shall not limit the Design
Professional's obligations under this Subsection 3.4.18.
ARTICLE 4 OWNER'S RESPONSffiiLITIES
4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including ( 1) the Owner's objectives, (2)
schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems
and site requirements, as more specifically described in Subsection 2.2.1.
4.2 Tite Owner shall e.~tablish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable
contingencies related to all of these costs.
4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's
obligations under this Agreement.
4A The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authori:~:ed
representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid
unreasonable delay in the orderly and sequential progress of the Design Professional's services.
4.5 Where applicable, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the
Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys,
pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, em:roachments, zoning, dcod
PSA 5349
Page9
restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to exi~ting buildings, other improvements and
trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths.
All the information on the survey shall be referenced to a project benchmark.
4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services are requested by the Design Professional.
Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of
hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating sub-soil conditions, with reports and
appropriate professional recommendations.
4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are
requested by the Design Professional and are not retained by the Design Professional as part of it8 Basic Services or Additional Services.
4.7 When not a part of the Additional Services, the Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests of
hazardous materials, and other laboratory and environmental tests, inspections and repor18 required by law or the Contract Documents.
4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including
auditing services the Owner may require to verify the Conttactor's Applications for Payment or to ascertain how or for what purpose~ the
Contractor has used the money paid by or on behalf of the Owner.
4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished at the Owner's expense,
and the Design Professional shall be entitled to rely upon the accurc~cy and completeness thereof in the absence of any negligence on the part of the
Design Professional.
4.10 11te Ov.mer shall give prompt written notice to the Design Professional if the Owner beoomes aware of any fault or defect in the Project or
nonconformance with the Contract Documents.
4.11 Design Professional shall propose language tor certificates or certifications to be requested of the Design Protessional or Design
Professional's consultants and shall submit such to the Owner for review and approval at least fourteen ( 14) days prior to execution. The Owner
agrees not to request certifications that would require knowledge or service!> beyond the scope of the Agreement.
ARTICLES CONSTRUCTION COST
S.l CONSTRUCTION COST DEFINED
5.1.1 The Constru<..1ion Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design
Professional.
5.1.2 The Construction Cost shall include the cost at current market rates of labor and matetials furnished by the Owner and equipment designed,
~pecified, selected or specially provided tor by the Design Protessional, plus a reasonable allowance for the Contractor's overhead and profit. In
addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the work during
construction.
5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land,
rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4.
5.1 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary e~timates of Construction Cost and detailed estimate~ of Construction Cost prepared
by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is
recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Con-
tractor's methods of determining bid prices, or over competitive bidding or market condition~. Accordingly, the Design Professional cannot and
does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Construction Cost or
evaluation prepared or agreed to by the Design Professional.
5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by tl1e fumishing, proposal or establishment of a
Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established,
the Design Professional shall he permitted to include contingencies for design, bidding and price escalation, to determine what matetials, equip-
ment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of
the Project and to include in the Contract Documents altemate bids to adjust the Construction Cost to the fixed limit. fixed limits, if any, shall be
increased in the amount of an increase in the Contract Sum occuning after execution of the Contract for Construction.
5.2.3 lf the Procurement Phase has not commenced within 90 days aftet· the Design Professional submits the Construction Documents to the
Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction
industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought.
PSA 5349
Page 10
ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS
6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's
service and shall become the property of the Owner upon termination or completion of the Agreement . The Design Professional is entitled to retain copies
of all such documents. Such documents are intended only be applicable to this Project , and Owner 's use of such documents in other proje~is shall be at
Owner's so l e risk and expense. I n the event the Owner uses any of the infonnation or materials developed pur su ant to the Agreement in another project or
for other purposes than are s pecified in the Agreemen t , the Design Professional i s released from any and all liability relating to their use i n that project
6.2 Submission or di s tribution of documents to meet official regulatory requirements or for si m ilar purposes in connection with the Project is not to be
construed as publication i n derogation of the Design Professional's reserved rights.
ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT
7.1 The Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in
accordance with the terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof with or
without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed under the Agreement shall cease
immediately upon Design Professional's receipt of such notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner
for all work it satisfactorily performed prior to the receipt of such notice. No amount shall be due for lost or anticipated profits. All plans, field surveys,
and other data related to the Project shall become property of the Owner upon tem1ination of the Agreement and shall be promptly delivered to the Owner
in a reasonably organized fonn. Should Owner subsequently contract with a new Design Professional for continuation of services on the Project, Design
Professional shall cooperate in providing information.
7.2 If the Project is ~uspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for servict:s satisfactorily
performed prior to notice of such suspension. When the Project is resumed, the Design Profes s ional's compensation shall be equitably adjusted to provide
for expenses incurrc:d in the inteiTtlption and resumption of the Design Professional's services.
7.3 The Agreement may be terminated by the Owner upon not Jess than seven days written notice to the Design Professional in the event that the Project is
permanently abandoned. I f th e Project is abandoned by the Owner for more than 90 con s ecutive day s, the Design Professional or the Owner may terminate
the Agreement by giving written notice.
7.4 Failure of the Owner to make payments to the Design Professional for work sat i sfactorily completed i n accordance with the Agreemen t :~hafl be
co~idered 1>11bstantial n o nperformance and ca us e for termination.
7 .S lf the Owner fail s t o m ake payment to Dt:llign Professional within thirty (30) days of receipt o f a statement for services properly and satisfactorily
performed , the Desi gn Professional may, upon seven days written notice to t he Owner, suspend performance of services u nder the A,;_oreement.
7.6 In the event of termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and
satisfactorily performed prior to termination.
ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL
8.1 DIRECT PERSONNEL EXPENSE
8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the
cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits,
insurance, sick leave, holidays, vacations, pensions and similar contributions and benefit s .
8.2 REIMBURSABL E EXPENSES
8.2.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Design
Professional and Design Professional's employees and consultants in the int~t of the Project , as identified in the following Clauses.
PSA 5349
8.2.1. 1 Expen s e of transportation in connection wi t h the Project; expenses in connection w i th authorized ou t -of-town travel ; l ong-distance
comm u n i cat i on s; and fees pa i d for securing approval of au t horities ha v ing jurisdi~'tio n over the Projec t
8.2. 1.2 Expense of reproductions (except the reproduction o f the sets of d o cuments referenced in Subsection 26.19), postage and handling
of Drawing s , Specifieations and other documents.
8.2.1.3 If authori z ed in advance by the Owner, expense of overtime work requiring higher than regu l ar rates.
8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner .
8.2.1.5 Expense of computer-aided design and drafting equipment time when used in connection with the Project.
Page 11
8.:U .6 Other expenses that arc approved in advance in writing by the Owner .
8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of
service, on the basis set forth in Section 3 of the Agreement and the schedule of work.
8.3.2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of the Design Professional,
compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Section 3 of the
Agreement.
8.3.3 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed,
compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the
schedule set forth in Section 3 of the Agreement based on {l) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent
preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project.
8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
8.4.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days
after the presentation to the Owner of the Design Professional's statement of services rendt:red or expenses incurred.
8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages Of
other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is
responsible.
8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized
representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct
Persotutcl Expense for inspection and copying during regular business hours fot· three years after the date of the final Certificate of Payment, or until any
litigation related to the Project is final, whichever date is later.
ARTICLE 9 INDEMNITY
9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, 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 injul)', death and property damage, resulting from the negligent acts or
omissions of the Design Professional or its officers, shareholders, agents, or employees in the performance of the Agreement.
9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of
the parties· defenses, both at Jaw or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the
detense of governmental immunity, which defenses are hereby expressly reserved.
ARTICLE 10 INSURANCE
During the performance of the Services under the Agreement, Design Professional shall maintain the follov.ting insurance with an insurance company
licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Be.~t
Rate Carriers of at least an A-or above:
10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $I ,000,000 for each occurrence and not Jess than
$2,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $250,000 in the
aggregate.
10.2 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 of not less than $100,000 for each accident.
10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than
$1 00,000 for each accident including occupational disease.
10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate.
lO.S The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this
Article to at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as
an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner. and each policy shall contain a
provision that such insurance shall not be canceled or modit1ed without thirty (30) days· prior written notice to Owner and Design Professional. fn
PSA 5349
Page 12
such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of
insurance meeting the requirements of this Article I 0.
ARTICLE 11 MISCELLANEOUS PROVISIONS
ll.l The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the A.,orec~nent shall lie exclusively in
Denton County, Texas.
11.2 The Owner and Design Professional, respectively, bind themselves, their partllers, successors, assigns and legal representatives to the other party to
this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The
Design Professional shall not assign its interests in the Agreement without the written consent of the Owner.
11.3 The tt:tm Agreement as used herein includes the executed A.,oreement, the Proposal, these General Conditions and other attaclunents referenced in
Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all
p1ior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner
and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachments
referenced in Section 3 of the Agreement shah to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the
provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall be given priority in the following order:
I. The executed Agreement
2. Attachments referenced in Section 3 of the Agreement other than the Proposal
3. These General Provisions
4. The Proposal
11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner
or Design Professional.
11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Project,
including photographs of the exterior and interior, among the Design Professional's promotional and professional materials. The De.~ign Professional's
materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the
specitic information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Design Professional on
the consnuction sign and in the promotional materials for the Project.
11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees,
associates, agents, subcontractors, and subconsultants tor the accuracy and competency of their designs or other work; nor shall such approval be
deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the De.c;ign Professional, its
employees, subcontractors, agents, and consultants.
11.7 All notices, communications, and reports required or pennitted under the Agreement shall be personally delivered or mailed to the respective
parties by depositing same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt
r<Xlucsted, unless otherwise specified herein. All notices shall be deemed efftx-1ive upon receipt by the party to whom such notice is given, or within
three (3) days after mailing.
11.8 If any provision of the 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 the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall
retonn the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the
intention of the stricken provision.
11.9 Tite Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered
hereunder as they may now read or hereinafter be amended during the term of this Agreement.
11.10 In perfonning the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color,
religion, sex, national origin or ancestry, age, or physical handicap.
11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the
Agreement.
PSA 5349
Page 13
CONFLICT OF INTEREST QUESTlON
For vendor or other _t!_erson doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session .
This questionnaire is being filed in accordance with chapter t 76 of the Local Government Code by a person
who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the
person meets requirements under Section l76.006(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 person becomes aware of facts that require the
statement to be filed. See Section 176.006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176.006, Local Government
Code. An offense under this section is a Class C misdemeanor. W Name of person who has a business relationship with local governmental entity.
w 0 Check this box if you are filing an update to a previously filed questionnaire.
FORMCIQ
OFFICE USE ONLY
Date Received
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the ]fh business
day after the date the originally filed questionnaire becomes incomplete or inaccurate.)
3
Name of local government officer with whom filer has an employment or business relationship.
-
Name of Officer
This section. (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer 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
filer of the questionnaire?
D Yes DNo
B. Is the filer of the questionnaire 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?
D Yes DNo
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 10 percent or more?
DYes D No
D. Describe each affiliation or business relationship.
Signature of person doing business with the governmental entity Date
PSA 5349
Page 14