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HomeMy WebLinkAbout1998-258ORDINANCE NO AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING AND SURVEYING SERVICES RELATED TO THE RELOCATION OF WATER AND WASTEWATER UTILITIES ALONG US HIGHWAY 77 FROM INTERSTATE HIGHWAY 35 TO US HIGHWAY 380, IN DENTON, TEXAS, WITH RUST ENVIRONMENT & INFRASTRUCTURE, INC, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council desires to engage Rust Environment & Infrastructure, Inc, for a not�to-exceed amount of Three Hundred Eight Thousand Three Hundred Ninety Five Dollars ($308,395 00) to provide professional services to the City for engineering design, easement survey, and easement document preparation pertaining to the relocation of water and wastewater utilities along U S Highway 77 from Interstate Highway 35 to U S Highway 380, in Denton, Texas, and WHEREAS, the City Council deems that it is in the public interest to enter into a Professional Services Agreement with Rust Environment & Infrastructure, Inc for the above - referenced professional services, 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 Rust Environment & Infrastructure, Inc, for engineering and surveying services, pertaining to the relocation of water and wastewater utilities along U S Highway 77 from Interstate Highway 35 to U S Highway 380, in Denton, Texas, in substantially the form of the attached Agreement which is incorporated herewith by reference SECTION II That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized SECTION III That this ordinance shall become effective immediately upon its passage and approval ��++ PASSED AND APPROVED this the � day of 51998 ATTEST JENNIFER WALTERS, CITY SECRETARY BY lt� axh&'4 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY�VIJ F \shared\dept\LGL\Our Documents\Ordinances\98\Rust Environment Ord doe PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING AND SURVEYING SERVICES PERTAINING TO THE RELOCATION OF WATER AND WASTEWATER UTILITIES ALONG U.S. HIGHWAY 77 FROM INTERSTATE HIGHWAY 35 TO U S. HIGHWAY 380 IN DENTON, TEXAS STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the 5e day of !fJ 1998, by and between the City of Denton, Texas, a Texas municipal corpor tion, with its principal office at 215 East McKinney Street, Denton, Texas 76201, hereinafter called "OWNER", and Rust Environment & Infrastructure Inc , with its offices at 1420 West Mockingbird Lane, Suite 300, Dallas, Texas 75247, hereinafter called "CONSULTANT", OWNER and CONSULTANT are acting herein, by and through their duly - authorized officers and representatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services described and provided for herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas The professional services set out herein are in connection with the following described project (hereinafter the "Project") The Project shall include, without limitation, Engineering Design, Easement Survey and Easement Document preparation services incident to the relocation of Water and Wastewater Utilities along U S Highway 77 and new 20-inch and 16-inch water lines from Interstate Highway l35 to U S Highway 380, in Denton, Denton County, Texas ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A To perform all those Basic Services set forth in CONSULTANT's proposal for the Project dated and submitted August 18, 1998, which proposal is attached hereto and incorporated herewith by reference as Exhibit "A" B If there is any conflict between the terms of this Agreement and the Exhibit attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached Exhibit or any 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 Basic Services set forth in Article II hereinabove, are described as follows 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 Resource 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 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 applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications E Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties or in condemnation proceedings arising from the development or construction of the Project, including the preparation of engineering data and reports for the OWNER, to assist OWNER in those proceedings F Lift Station analysis and design G Providing geotechnical investigations for the construction site, including soil borings, related analyses, and recommendations H Court appearance(s) by the Engineer for easement and right of way acquisition I Negotiations for easement acquisition J Making additional presentations not otherwise provided for hereunder Page 2 ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issuance of a notice to proceed by the OWNER, and shall remain in force for the period which 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 1 "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in the employment of others from outside firms, for services in the nature of professional engineering 2 "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation, travel, communications, subsistence, lodging away from home, and similar incidental expenses reasonably incurred 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 the hourly rates set forth in the spreadsheet attached as the final page of Exhibit "A", which is attached hereto and incorporated herewith by reference, a fee of not to exceed $308,395 00 which is comprised of (1) A fee of $184,645 00 for items 1 through 36 and items 51 through 53, including reimbursement for direct non -labor expenses, and (2) A fee of $990 00 for easement survey services per parcel of real property, respecting items 37 through 42, for up to 125 parcels, for a further sum not to exceed $123,750 00 CONSULTANT shall bill expenses at cost plus 10% CONSULTANT shall bill any subcontractors' or subconsultants' fees at actual cost plus 10% Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered by CONSULTANT to OWNER, and approved by OWNER through its City Manager or his designee However, under no circumstances shall any monthly statement for services exceed 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 satisfactory completion of the Project Page 3 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 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 payments by the OWNER for any charge, expense, or reimbursement above the fees as stated heremabove, 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 pursuant to Article III hereinabove, CONSULTANT shall be paid based upon the Schedule of Charges at the appropriate hourly rate(s) as shown in Exhibit "A", attached hereto Payments for additional services shall be due and payable upon submission by the CONSULTANT with CONSULTANT'S regular monthly statement as provided for above Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for services 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") day, and, in addition, the CONSULTANT 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 then 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 of CONSULTANT 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 CONSULTANT or any of CONSULTANT'S 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 Page 4 CONSULTANT is entitled to retain copies of all such documents The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the information or materials developed pursuant to this Agreement 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 arising from employee status ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, 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's fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT, its officers, agents, employees, subcontractors or subconsultants in the execution, operation, or performance of this Agreement Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the 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 expressly reserved ARTICLE X INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency, that has a rating with A M Best Rate Carriers of at least "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 property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate Page 5 B Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident C Worker's Compensation Insurance in accordance with statutory requirements, and Employers' 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 to the OWNER to evidence such coverage The insurance certificates and policies shall name the OWNER as an additional insured on all such policies to the extent possible, 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, deliver to OWNER substitute insurance certificates or policies furnishing the same coverage ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree, but are not required to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one parry's disagreement, may include the other party to the disagreement without the other party's approval ARTICLE XII TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate this Agreement 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 substantially failing to fulfill its obligations under this Agreement No such termination will be effected unless the other party is given (1) Written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the default, error, omission or non-performance, and not less than thirty (30) calendar days to cure the failure, and (2) An opportunity for consultation with the terminating parry 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 Page 6 termination, in accordance with Article V "Compensation," heremabove Should the OWNER subsequently 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 own use ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, agents, subcontractors, and subconsultants, for the accuracy and competency of their designs or other work, 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 officers, employees, agents, subcontractors, and subconsultants ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered, or shall be mailed to the respective parties by depositing same in the United States mail to the addresses shown below, by means of certified mail, return receipt requested, unless otherwise specified herein To CONSULTANT Rust Environment & Infrastructure Inc Rodney E Zielke, Vice -President 1420 West Mockingbird Lane, Suite 300 Dallas, Texas 75247 given To OWNER City of Denton, Texas Howard Martin, Jr Assistant City Manager of Utilities 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of eleven (11) pages and one (1) exhibit, constitutes the completes and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement Page 7 ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the parties hereto respecting the stricken provision ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT 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 be hereafter 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 personnel required to perform all the professional services required under this Agreement Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest known to Consultant, that may arise during the term of this Agreement B All services required hereunder will be performed by the CONSULTANT or under its direct supervision All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services Page 8 ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER 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 arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing and duly executed by the parties The parties further agree that the provisions of this Article will not be waived unless as set forth herein ARTICLE XXII MISCELLANEOUS A The following Exhibit is attached to and incorporated herewith by reference, and made a part of this Agreement Exhibit "A" --- Project Proposal 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 directly 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 compliance 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 governed by and 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 Rod Zielke, P E , Prmcipal—In-Charge and Project Manager, Steve Heniford, P E , Project Engineer, and Larry Smalley, P E , Project Engineer However, nothing herein shall limit CONSULTANT from using other qualified and competent Members of its firm to perform the professional services required herein Page 9 E CONSULTANT shall commence, carry on, and complete any and all work on the Project with all applicable dispatch, in a sound, economical, and efficient manner, and in accordance with the provisions hereof In accomplishing the Project, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work being carved on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions 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, OWNER and CONSULTANT have hereby executed this Agreement in quadruplicate original counterparts, the OWNER acting by and through its duly - authorized City Manager, and thONSULTANT actin by and through its duly -authorized undersigned officer on this the day of �c C��f9ll%i 1998 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY 1p BY "OWNER" CITY OF DENTON, TEXAS BY D BENAVIDES, CITY MANAGER Page 10 "CONSULTANT" RUST ENVIRONMENT & INFRASTRUCTURE, INC BY /fjj04-r RODNEY E IELKE VICE-PRESIDENT ATTEST BY F \SHARED\DEPTILGL\Our Documents\Contracts\98\Rust Agreement doc Page 11 RUST Rust Environment & Infrastructure Inc. 4 Rust InmtnaVenai Corroarr Phone 7..5300867 1420 West Mock nge of Lire a' 0. $31$426 Suite 300 Oaks TX 75247490E August 18, 1998 Mr P S Arora, P E Engineering Admitustrator Denton Municipal Utilities 901-A Texas Street Denton, Texas 76201 Re Proposal for Engineering and Survey ing to Relocate Water and Wastewater Utilities along Highway 77 from I-33 to U S Hwv 380 in Denton Texas Dear Mr Arora Rust E & I appreciates this opportunity to provide the City of Denton with a pnced proposal for the referenced project The proposed utility relocations and 16-inch watermain are summarized by the attached preliminary construction cost estimate which totals S2 311 309 in construction cost The project currently anticipates placing the proposed utilmes clear of the ultimate U S Hwy 77 pavement, within future ROW where possible and in adjacent easements where necessary Based on our current understanding of the project as defined in the above referenced preliminary construction cost estimate and the attached task/fee outline Rust E & I proposes to perform the following scope of work BASIC SERVICES A Design Survevs Rust will recover existing benchmarks and state control and establish secondary control adequate to perform the sun eys required Supplemental topographic survey s will be performed to tie existing utilities and other existing features to the area of the proposed roadway improvements that would affect the proposed utility construction These survey s will supplement aerial mapping files provided by T,DOT In addition topographic survey w111 be performed to support analysis of sanitary sewer alignrncnt studies around Riney Road ai Ououry Mmgn ,earn nark Mr P S Arora, P E August 18, 1998 Page 2 B Preliminary Design Phase The Consultant shall prepare preliminary plans to include the following 1 Proposed alignment 2 Proposed profiles 3 Natural and man-made features affecting design C Final Design Phase I Upon approval of preliminary plans by the City, the Consultant shall prepare final plans (each sheet to be stamped by the Registered Professional Engineer responsible for the work) a Standard City title page with location map b Plan and Profile sheets c Standard sheets d Erosion Control Plans e, Traffic Control Plan 2 The Consultant will furnish to the owner one (1) set of film reproducibles and three (3) sets of blue line prints of the approved plans D Construction Phase Services 1 Prepare construction quantity estimate based on final plans 2 Attend preconstruction meeting 3 Prepare as -built drawings as required Mr P S Arora, P E August 18, 1998 Page 3 II SPECIAL SERVICES A Easement Surveys Easement surveys will be performed on a per parcel basis to determine the limits of easements required for the construction of the project Deed and ownership research will be provided to supplement research already done by the City of Denton in acquirmg ROW parcels Legal descriptions and parcel exhibits will be provided to the City for acquisition by the City It is anticipated that the City will obtain "letters of permission" from affected parcels to access and survey on their property It is currently anticipated that approximately 95t parcels will be affected III ADDITIONAL SERVICES Additional Services are defined as services that are requested by the Owner or required for project completion which fall outside of the scope of Basic Services and Special Services as outlined above Additional Services might include, but are not limited to (1) Lift Station analysis and design, (2) Court appearance by the Engineer for easement and ROW acquisition, and (3) Appraisals for easement acquisition, (4) Legal and Negotiations for easement acquisition, and (5) Other services outside the scope of Basic Services IV COMPENSATION Rust E & I and its subconsultants propose to complete the Basic Services for a fee of S184,645 00 and includes tasks I thm 36 and 51 thru 53 In addition RUST E&I proposes to provide easement surveying services for a per parcel cost of S990 00 for a muumum of 90 parcels as identified in tasks 37 thru 42 These amounts will not be exceeded without prior written authorization by the City of Denton Additional Services, when requested in writing by the City of Denton, will be performed at time plus materials basis as follows (1) Labor to be billed at hourly rates shown, (2) Expenses to be billed at cost plus 10%, and (3) Subconsultants and subcontractors to be billed at actual cost plus 10% Mr P S Arora, P E August 18, 1998 Page 4 Please call me if you have any questions or require additional information Sincerely, V"`1,e,3 Rodney E Zielke, P E Vice President Dallas Division REZ/tlj