Loading...
HomeMy WebLinkAbout1998-136ORDINANCE NO 96 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH CARTER & BURGESS, INC FOR UNICORN LAKE ENGINEERING SERVICES, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it in the public interest to hire Carter & Burgess, Inc to provide professional engineering services to provide a topographic survey, hydrological analysis and design services for Unicorn Lake, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Manager is hereby authorized to execute a Professional Services Agreement with Carter & Burgess, Inc for professional engineering services for Unicorn Lake, in substantially the form of the Agreement attached hereto and incorporated herein by reference SECTION II. That the expenditure of fiends as provided in the attached Agreement is hereby authorized SECTION III. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the NO day of _ w _, 1998 JA ILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY 111Y 0r�L! & .lL...h�� lIL ,i�I APPROVED AS TO LEGAL FORM m burgess ordinance dur PROFESSIONAL SERVICES AGREEMENT FOR UNICORN LAKE ENGINEERING SERVICES STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made and entered into as of the 2"d day of April, 1998, by and between the City 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 Carter & Burgess, Inc, with its corporate office at 7950 Elmbrook, Dallas, Texas 75247, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized repre- sentatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the highest pro- fessional standards customarily obtained for such services in the State of Texas The profes- sional services set out herein are in connection with the following described project The Project shall include, without limitation, to provide a topographic survey, hydrologi- cal and hydraulic analysis and design services for the spillway, and dam design and grading plan for Unicorn Lake ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A To perform all those services set forth in CONSULTANT's Scope of Services dated Feb- ruary 25, 1998, which proposal is attached hereto and made a part hereof as Exhibit "A" as if written word for word herein B CONSULTANT shall perform all those services set forth in individual task orders which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements C If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders ARTICLE III ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above -described Basic Services, are described as fol- lows A During the course of the Project, as requested by OWNER, the CONSULTANT will be available to accompany OWNER's personnel when meeting with the Texas Natural Re- source Conservation Commission, U S Environmental Protection Agency, or other regulatory agencies The CONSULTANT will assist OWNER's personnel on an as - needed basis in preparing compliance schedules, progress reports, and providing general technical support for the OWNER's compliance efforts B Assisting OWNER or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement C Sampling, testing, or analysis beyond that specifically included in Basic Services D Preparing copies of computer aided drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system E Preparing applications and supporting documents for goverment grants, loans, or plan- ning advances and providing data for detailed applications F Appeanng before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings ansmg from the development or construction of the Project, including the preparation of engineering data and reports for assistance to the OWNER G Providing geotechmcal investigations for the site, including soil bonngs, related analyses, and recommendations H Preparation of nght-of-way and easement documents for the project site Obtaining a Clean Water Act Section 404 Permit Submittals to the TNRCC for a water rights permit Page 2 K Payment of submittal and review fees to the Federal Emergency Management Agency (FEMA) L Obtaining permits from any other regulatory agency except FEMA ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for the period winch may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence in this Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee ARTICLE V COMPENSATION A COMPENSATION TERMS "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of geotechmcal services 2 "Direct Non -Labor Expense" is defined as that expense for any assignment in- curred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar inciden- tal expenses in connection with that assignment B BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "B" which is attached hereto and made a part of this Agreement as if written word for word herein, a total fee, including reim- bursement for direct non -labor expenses not to exceed $50,000 00 Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee, however, under no circumstances shall any monthly statement for services ex- ceed the value of the work performed at the time a statement is rendered The OWNER may withhold the final five percent (5%) of the contract amount until completion of the Project Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is Page 3 not submitted in compliance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional pay- ments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "B " Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection B hereof Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for serv- ices and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said sixtieth (60`h) day, and, in addition, the CON- SULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation " ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULT- ANT or any subcontractors or subconsultants ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement The CON- SULTANT is entitled to retain copies of all such documents The documents prepared and f ir- nished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense In the Page 4 event the OWNER uses any of the information or materials developed pursuant to this Agree- ment in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right ansmg from employee status ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT 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 in- curred by the OWNER, and including, without limitation, damages for bodily and personal in- jury, death and property damage, resulting from the negligent acts or omissions of the CON- SULTANT or its officers, shareholders, agents, or employees in the execution, operation, or per- formance of this Agreement Nothing to this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby ex- pressly reserved ARTICLE X INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas, by the State Insurance Commission or any successor agency that has a rating with Best Rate Carvers of at least an A- or above A Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with prop- erty damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate B Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage lim- its of not less than $100,000 for each accident Page 5 C Worker's Compensation Insurance in accordance with statutory requirements, and Em- ployers' Liability Insurance with limits of not less than $100,000 for each accident D Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate E The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dis- pute to arbitration or other means of alternate dispute resolution, such as mediation No arbitra- tion or alternate dispute resolution ansing out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's ap- proval ARTICLE XII TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party B This Agreement may be terminated in whole or in part in the event of either party sub- stantially failing to fulfill its obligations under this Agreement No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of ter- mination, in accordance with Article V "Compensation " Should the OWNER subse- quently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use Page 6 ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsi- bility and, liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for 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 CONSULTANT, its employees, subcontractors, agents, and consultants ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein Mailed notices shall be deemed communicated as of three (3) days' mailing To CONSULTANT Burt Weathersbee, P E Carter & Burgess, Inc 7950 Elmbrook Dallas, Texas 75247 To OWNER City of Denton Jerry Clark, P E 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of ten pages and two exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent junsdic- tion to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforce- able provision which comes as close as possible to expressing the intention of the stricken provi- sion Page 7 ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regula- tions, and ordinances applicable to the work covered hereunder as they may now read or herein- after be amended ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap ARTICLE XIX PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all person- nel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arse during the term of this Agreement B All services required hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not trans- fer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding ansmg between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in wnt- mg and duly executed, and the parties further agree that the provisions of this section will not be waived unless as set forth herein Page 8 ARTICLE XXII MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement Exhibit A — Scope of Services, Exhibit B — Professional Service Rate Structure B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any di- rectly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to this Agreement CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in com- pliance with this section OWNER shall give CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas This Agreement shall be construed in accordance with the laws of the State of Texas D For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Burt Weathersbee and Alex Martinez However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein E CONSULTANT shall commence, cant' on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with re- lated work being carried on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's dis- posal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provi- sions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement G The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be exe- cuted by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of 19 Page 9 ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY WITNESS 01A F uh..&depttLOL\Ow DoeumenbtConirwu\9g\ e & burgeee doe CITY OF DENTON, TEXAS T D BENAVIDES, CITY MANAGER CARTER BURGESS, INC Page 10 Exhibit "A" Scope of Services Task No 1 Topographic Survey - Prepare topographic survey of lake bottom taking elevations of top of silt and hard bottom on a 100 foot grid Additional elevations will betaken to approximately 200 feet upland of the existing normal pool elevation Task No 2 Hydrologic and Hydraulic (H&H) Analysis - HEC-1 hydrologic model will be prepared for existing and proposed conditions HEC-RAS hydraulic model will be prepared for existing and proposed conditions from the lake upstream to where the elevations converge with the FEMA FIS study This H&H analysis will establish design criteria of storage volume required, normal pool elevation and spillway structure for up to two (2) lake configurations Exhibits will be prepared to illustrate drainage area map, existing floodplain and proposed floodplain around the lake Task No 3 Preliminary design - Spillway and dam design and grading plan will be developed Carter & Burgess will assist the City in coordinating with adjacent property owners in establishing acceptable design parameters with regard to size and shape of lake A preliminary estimate of probable cost will be prepared Task No 4 Final Design -Upon City approval of preliminary design, construction documents will be prepared This will consist of plans, specifications and estimate of probable cost Included in the plans will be • Cover sheet • Quantity sheet • Dredging/grading plan sheet • Spillway plan and elevation sheet • Detail sheet Task No 5 Letter of Man Revision (LOMR) - After lake construction has been completed, Carter & Burgess will submit documentation to the Federal Emergency Management Agency (FEMA) in support of a LOMR for the lake and upstream creek The LOMR submittal will include the lake construction and projects that have occurred upstream of the lake Carter & Burgess will rely on information developed by engineers and landowners of upstream properties to be included in the LOMR submittal No cross sections will be taken of the upstream creek areas 98320008 LAC Task No 6 Geotechnical Invest a ion - Carter & Burgess will subcontract the services of a competent geotechnical engineering and testing firm to perform geotechnical investigation of the proposed spillway and dam area The purpose of this task will be to obtain geotechmcal parameters for design of the spillway and dam embankment No contamination analysis will be performed as a part of this task Task No 7 Coordination With University of North Texas - Carter & Burgess will provide a wetlands expert to coordinate with staff from the University of North Texas in designing wetland and water quality features into the Umcom Lake construction The design of the wetland and water quality features are to be accomplished by staff from the University of North Texas The extent of Carter & Burgess' involvement on this task will be to provide oversight and guidance in the sizing, function and features of such a wetland area After the design has been prepared and agreed upon with the City and North Texas, Carter & Burgess will add the wetland feature(s) to the construction plans Fee Task No 1 - Topographic Survey Lump Sum $5,100 00 Task No 2 - H&H Analysis Lump Sum $9,400 00 Task No 3 - Preliminary Design Lump Sum $10,500 00 Task No 4 - Final Design Lump Sum $10,600 00 Task No 5 - LOMR Preparation Lump Sum $5,400 00 Task No 6 - Geotechnical Investigation Lump Sum $6,000 00 Task No 7 - Coordination with University of North Texas Time and Materials $3,500.00 TOTAL $53,500 00 The above fees are for work described in the scope of services Any other services or major change in scope of work, such as preparation of right of way or easement documents, obtaining Clean Water Act Section 404 permit from the U S Army Corps of Engineers, submittals to the TNRCC for water rights permits, or any other permits or submittals to regulatory agencies, will be considered additional services and additional compensation shall be negotiated at the time those services are requested In some instances, fees for LOMR review by FEMA can be waived for public projects This scope of services does not include payment of submittal review fees to regulatory agencies 98320008 LAC EXHIBIT "B" PROFESSIONAL SERVICES RATE STRUCTURE Principal Project Manager Project Engineer Office Surveyor Registered Surveyor Technician Field Party (3 man) Field Party (2 man) $100 00/hour to $150 00/hour $80 00/hour to $100 00/hour $65 00/hour to $90 00/hour $50 00/hour to $60 00/hour $72 00/hour to $105 00/hour $45 00/hour to $75 00/hour $95 00/hour to $100 00/hour $70 00/hour to $80 00/hour 983200084AC ! | | k | | | � zW 2k � §I.- u� co ` ww_ § (L >, @. , 0 u« B§ § a / ) o \ ` /t ( � ;§ ! R f2 '�■tm £2 } 7g2�■ee « s ■ ° ■ 2 � ; | E=Iw\mo »o§ �=uu0,� a U. §