HomeMy WebLinkAboutOctober 28, 2014 Agendato�ut!AItli
DENTON
Tuesday, October 28, 2014
City of Denton
Meeting Agenda
City Council
11:30 AM
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Work Session Room
After determining that a quorum is present, the City Council of the City of Denton, Texas will convene
in a Work Session on Tuesday, October 28, 2014 at 11:30 a.m. in the Council Work Session Room at
City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered:
1. Closed Meetinu:
A. ID 14 -0677 Consultation with Attorneys - Under Texas Government Code, Section 551.071.
Consult with and provide direction to City's attorneys regarding legal
issues and
strategies associated with Gas Well Ordinance regulation of gas well drilling
and
production within the City Limits and the extraterritorial jurisdiction,
including:
Constitutional limitations, statutory limitations upon municipal regulatory
authority;
statutory preemption and vested rights; impacts of federal and state
law and
regulations; impacts of gas well drilling upon protected uses and
vice - versa;
moratorium on drilling and production; other concerns about municipal
regulatory
authority or matters relating to enforcement of the Gas Well Ordinance;
settlement
matters concerning gas well drilling in the City; surface development
issues
involving surface and mineral estates; and legal matters associated with
a citizen's
initiative regarding hydraulic fracturing where a public discussion of these
legal
matters would conflict with the duty of the City's attorneys under
the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas.
B. ID 14 -0714 Consultation with Attorneys - Under Texas Government Code, Section 551.071.
Consult with and provide direction to the City's attorneys regarding legal issues
associated with the Denton Development Code, Subchapter 15, relating to Signs and
Advertising Devices where a public discussion of these legal matters would conflict
with the duty of the City's attorneys under the Texas Disciplinary Rules of
Professional Conduct of the State Bar of Texas.
Following the completion of the Closed Meeting, the City Council will convene in a Work Session at
which the following item will be considered:
2. Work Session Reports
A. ID 14 -0715 Receive a report, hold a discussion, and provide staff with direction regarding the
Denton Development Code, Subchapter 15, relating to Signs and Advertising
Devices and possible amendments thereto.
Following the completion of the Work Session, the City Council will convene in an Open Meeting to
consider the following item:
City ofDenton Page I Printed on 1012412014
City Council Meeting Agenda October 28, 2014
3. Items for Individual Consideration
A. ID 14 -0708 Consider adoption of an ordinance approving an amendment to the proposed
hotel /convention center professional services agreement for architect or engineer,
Exhibit "F" of Contract No. 5447 and was attached to Ordinance No. 2013 -334;
providing a savings clause; and providing an effective date.
Attachments: Exhibit 1 - Ordinance and Amendment to Convention Center Agreement
Exhibit 2 - Exhibit F - PSA Architect or Engineer 12 -10 -13 FINAL
4. Concludinu Items
A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City
Council or the public with specific factual information or recitation of policy, or accept a proposal
to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the
Texas Open Meetings Act, provide reports about items of community interest regarding which no
action will be taken, to include: expressions of thanks, congratulations, or condolence; information
regarding holiday schedules; an honorary or salutary recognition of a public official, public
employee, or other citizen; a reminder about an upcoming event organized or sponsored by the
governing body; information regarding a social, ceremonial, or community event organized or
sponsored by an entity other than the governing body that was attended or is scheduled to be
attended by a member of the governing body or an official or employee of the municipality; or an
announcement involving an imminent threat to the public health and safety of people in the
municipality that has arisen after the posting of the agenda.
B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open
Meetings Act.
NOTE: The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open
Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, including
without limitation, Sections 551.071 - 551.086 of the Texas Open Meetings Act.
CERTIFICATE
I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of
Denton, Texas, on the day of , 2014 at o'clock (a.m.) (p.m.)
CITY SECRETARY
NOTE: THE CITY OF DENTON CITY COUNCIL WORK SESSION ROOM IS ACCESSIBLE IN
ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL
PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED
AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE
CITY SECRETARY'S OFFICE AT 349 -8309 OR USE TELECOMMUNICATIONS DEVICES FOR
THE DEAF (TDD) BY CALLING 1- 800 - RELAY -TX SO THAT A SIGN LANGUAGE
INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE.
City ofDenton Page 2 Printed on 1012412014
City Hall
City of Denton 215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
DEN'FON
File #: ID 14 -0677, Version: 1
Legislation Text
Agenda Information Sheet
SUBJECT
Consultation with Attorneys - Under Texas Government Code, Section 551.071.
Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Gas
Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial
jurisdiction, including: Constitutional limitations, statutory limitations upon municipal regulatory authority;
statutory preemption and vested rights; impacts of federal and state law and regulations; impacts of gas well
drilling upon protected uses and vice - versa; moratorium on drilling and production; other concerns about
municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance; settlement
matters concerning gas well drilling in the City; surface development issues involving surface and mineral
estates; and legal matters associated with a citizen's initiative regarding hydraulic fracturing where a public
discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas.
City of Denton Page 1 of 1 Printed on 10/24/2014
City Hall
City of Denton 215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
DEN'FON
File #: ID 14 -0714, Version: 1
Legislation Text
Agenda Information Sheet
SUBJECT
Consultation with Attorneys - Under Texas Government Code, Section 551.071.
Consult with and provide direction to the City's attorneys regarding legal issues associated with the Denton
Development Code, Subchapter 15, relating to Signs and Advertising Devices where a public discussion of
these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of
Professional Conduct of the State Bar of Texas.
City of Denton Page 1 of 1 Printed on 10/24/2014
City Hall
City of Denton 215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
DENT' IN
File #: ID 14 -0715, Version: 1
DEPARTMENT:
CM/ ACM:
Date:
Legal
Anita Burgess
October 28, 2014
Legislation Text
Agenda Information Sheet
SUBJECT
Receive a report, hold a discussion, and provide staff with direction regarding the Denton Development Code,
Subchapter 15, relating to Signs and Advertising Devices and possible amendments thereto.
BACKGROUND
City staff has identified certain provisions in the sign ordinance which may need modification.
The identified provisions are intended to provide non - substantive clarifications to facilitate enforcement,
including provisions related to portable signs, temporary signs, wind device signs, vehicle signs, and private
traffic control.
These changes were reviewed and approved by the previous Council at their meeting on December 3, 2013.
RECOMMENDATION
City staff requests City Council direction.
Respectfully submitted:
Anita Burgess
City Attorney
City of Denton Page 1 of 1 Printed on 10/24/2014
City Hall
City of Denton 215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
D EN'FON
File #: ID 14 -0708, Version: 1
Legislation Text
Agenda Information Sheet
DEPARTMENT: City Manager's Office
CM/ ACM: Jon Fortune
Date: October 28, 2014
SUBJECT
Consider adoption of an ordinance approving an amendment to the proposed hotel/convention center
professional services agreement for architect or engineer, Exhibit "F" of Contract No. 5447 and was attached to
Ordinance No. 2013 -334; providing a savings clause; and providing an effective date.
BACKGROUND
At the October 14th and 21st City Council Meetings, staff presented the latest information regarding the
convention center project. Specifically, staff discussed several of the more significant and costly construction
bid alternate choices for consideration: The foundation and roof type. The City Council indicated their
preference for an engineered /structural slab along with a more robust two -ply roof option. These choices
brought the construction estimates including the capitalized interest up to approximately $28.9 million, which
(at the time) was just above the amount indicated by O'Reilly Hotel Partners Denton (OHPD) that they were
comfortable supporting. The City Council also asked staff to seek additional information from (OPHD) about
their willingness to continue the project with or without the Denton Independent School District (DISD) or
County participation in the TIRZ.
Since then, staff has received written confirmation from OHPD about their willingness to move forward with
the project with or without participation from DISD and the County in the Tax Increment Reinvestment Zone
(TIRZ). They also agreed to support the project that includes the City's slab and roof preference that will result
in a total bond sale amount of approximately $28.9 million including capitalized interest and closing costs.
Staff also discussed with the City Council the need to begin a portion of the next design phase to help keep the
project on schedule and at current budget estimates. The City has a current professional service agreement with
O'Reilly Hospitality Management (OHM) to provide initial design services that were capped at $200,000. This
agreement was approved in December 2013 along with the Master Development Agreement. Staff is
recommending an amendment to the professional service agreement of an additional $75,000 to continue the
work on design for civil drawings with the goal of being able to start limited construction by the end of the year
upon the City's Council's final approval of the project and adopting an ordinance to sell the bonds to fund
construction. The attached ordinance provides that amendment language which has been accepted by OHM.
Staff is in the process of updating the Master Development Agreements and obtaining all remaining pieces of
information necessary for the City Council to consider at your November 11 City Council Meeting. This is the
City of Denton Page 1 of 2 Printed on 10/24/2014
File #: ID 14 -0708, Version: 1
date that has been targeted for City Council approval of the guaranteed maximum price construction contract
and the issuance of a notice of intent to sell bonds.
FYHIRTTC
Exhibit 1 - Ordinance and Amendment
Exhibit 2 - Professional Service Agreement for Architect or Engineer (Exhibit F of the Master Development
Agreement)
Respectfully submitted:
Jon Fortune
Assistant City Manager
Prepared by:
Jon Fortune
Assistant City Manager
City of Denton Page 2 of 2 Printed on 10/24/2014
SALegak0ur to Convention Center Agreement.doc
ORDINANCE NO,
AN ORDINANCE APPROVING AN AMENDMENT TO THE' PROPOSED
HOTEL/C,ONVENTION CENTEIR PROFFSSIONAL SERVICES AC RET"MENT FOR
ARC ITEC"j" OR ENGINEt,"R, EXHIBIT "F" OF CONTRACT O. 5447 AND WAS
ATTACHED T'0 ORDINANCE NO. 2013-334; PROVIDING A SAVINGS CLAt �SF, AND
I
PROVII)ING AN Ef, FECTIVE DATE.
WHEREAS, on December 10, 2013, the City Council of the City of Denton approved
Ordinance No. 2013-334, which included Exhibit "I"', Professional Services Agreement -
Architect or L`.ngineer, for Contract No. 5447; and
WHEREAS, it has come to the attention of the City of Denton, the an amendment be
made to Section V. B. of Exhibit "I"', Professional Set-vices Agreement Architect or Engineer.,
for Contract No. 5447; NOW,THE'REFORL"
THE COUNCIII.., OFTI ('TTY OF DENTON HFRFIBY ORDAINS:
ST C' I. The I indings and recitations contained in the preamble of this ordinance are
incorporated herein by reference and found to be tree.
SECTION 2. The City Manager is Hereby authorized by the City Council to execute the
Amendment, which is attached hereto as L..Xhibit "A" and incorporated herein, and is hereby
authorized for expenditure of` unds as provided in the attached Agreement.
SECTION 3. Save and except as amended hereby, all the remaining sections, paragraphs,
sentences, clauses, and phrases of the Exhibit 'T"', Professional Services Agreement — Architect
-1 -334, shall remain in. full
or Engineer, for Contract No. 5447, attached to Ordinance No. 2013
force and effect.
SEICTION 4. ']'his ordinance shall becorne effective inimediately upon its passage and
approval.
PAS SED AND APPROVED this the day 2014,
CI I R I S W A] "I'S, MANOR
AT'rEST:
JENNIFER WALT'ERS, CITY SEC.R.L.,'TARY
an
APPROVE[) AS 'TO LEGAL FORM:
ANITA BURGESS, CITY A'TTORNEY'
BY:
sAegal\our docu i n ents",con tracts\ Wcon vcn tj on center - first aniendnicrit,doe
EXHIBIT "A"
STATE" OF TEXAS §
COUNTY OF DENTON
FIRST AMENDMENTTO
PROFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
EXHIBIT "F" OF CONTRACT NO. 5447
JTIIS FIRST AMEN DM EN`fTOTHAT CONTRACT approved by Denton City Council
on December 10, 2013, Ordinance No. 2013-334, which included Exhibit Professional
Services Agreement — Architect or Engineer, for Contract No. 5447, made and entered into the
l0t1' day of December, 2013, by and between 'I'irn O'Reilly, Manager of'O'Rcilly I-Jospitality,
Management, 11C, ('01IM") 2808 S. Ingram Mill., Bldg. A-104, Springfield, MO 65804, and
the City of Denton ("City"), Texas, a Texas Municipal Corporation, 215 East McKinney,
Edenton, Texas 76201.
WITNE'SSE"I'l-I
SECTION I. Paragraph B. ref Section V. "Compensation" is hereby amended to read as
follows:
SECTION V
COMPENSATION
B BILLING AND PAYMI"N'T": Ior and in consideration of the professional services to be
performed by the Design Professional herein, the Owner agrees to pay for the completion
of the 35% '
Design Development Phase as defined in the Master Development
Agreement (Phase I as defined below, and a portion of Phase 11 as defined below Ior
maximum fee not to exceed $275,000. After expiration of the Feasibility Deadline and
Financing Viability Deadline, and upon election of all Parties to proceed with the project
as defined in the Master Development Agreement, the Design Prol'essional shall continue
with the final design of the project, completing the remaining 6501/0 of the design lor the
project, as required in the Master Development Agreement.
J 'he Owner shall compensate the Design Professional lbr all services during the Design
Development phase as follows:
BASIC SERVICES
Phase I - Fee for Initial 35% Completion of Design work shall not exceed: S200,000.
Phase It - Fee for I"inal 100`r'
Completion of Design work shall not initially exceed $75,00
with balance to be the remainder to be determined upon election to proceed
Phase 1.11 - Fee for Construction Procurement assistance (deternimed upon election to
proceed).
Olegakcm (locuiiieiits\c«ritt• acts\14\coii%,ciiti(7ii center - first amuidnientdoc
SECTION 2. Save and except as amended hereby, all the remaining sections,
paragraphs, sentences, Clauses, and phrases of' the Exhibit "I"', Professional Services Agreement
— Architect or Engineer, for Contract No. 5447, attached to Ordinance No. 2013-334, shall
remain in full force and effect,
IN WITNESS WHEREOF, the City of' Denton, Texas has caused this First Amendment
to be executed by its duly authorized City Manager; and 011M has executed on this the
day of 2014,
ATTEST:
JIHINNIFER WALTERS, CITY SU.'RETARY
BY:
APPROVED AS -TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNt"Y
B Y:
WITNESS:
BY:
Page 2
( I
, ITY 0 F 1) FN'FON
BY:----
GEORGE C. CAMPBETI,
CITY MANA(JF.R
DESIGN FIRM:
O'REILLY I IOSPFI 'ALITY
MANAGLI'MEXF, I.
BY:
TIM URE'ILLY, MANAGFIR
PROFFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
Exhibit F of Contract #
STATE OF TEXAS §
COUNTY OF DENTON §
THIS AGREEMENT is made and entered into as of the day of
, 20 , 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 O'Reilly Hospitality Management with its corporate office at
hereinafter called "Design Professional," acting herein, by and through their
duly authorized representatives.
In consideration of the covenants and agreements herein contained, the parties hereto do mutually
agree as follows:
SECTION I
EMPLOYMENT OF DESIGN PROFESSIONAL
The Owner hereby contracts with the Design Professional, in accordance with the provisions of
Texas Government Code 2269.205, and Chapter 1051 and 1001 of the Texas Occupations Code to
prepare the construction documents for the project. Additionally, the Design services shall be under the
supervision of a licensed Texas architect or engineer, as an independent contractor. The Design
Professional hereby agrees to perform all services as described under Article III Design Development
Activities of the Master Development Agreement entered into as of , 2013 by and
between the City of Denton, Texas, the University of North Texas, O'Reilly Hotel Partners Denton,
and O'Reilly Hospitality Management herein defined as the "Master Development Agreement." This
agreement shall also serve as Exhibit G of the Master Development Agreement.
SECTION II
SCOPE OF SERVICES
The Design Professional shall perform the following services in a professional manner:
A. The Design Professional shall perform all those services as necessary and as described in the
Master Development Agreement.
Phase I - Initial 35% Progress Set for Design Development — Design Professional will
conduct a series of meetings with the owner as required by the Master Development
Agreement. The meetings will begin with reviewing the owner's project goals and
Page 1
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
requirements. Then the program will be refined and a preliminary floor plan and site plan will
be produced. Design Professional will meet with the City of Denton to understand the
constraints and parameters, such as city codes, zoning and platting, affecting the proposed sites.
During this phase the Schematic documents are developed to facilitate the construction
procurement phase. In this phase the mechanical, electrical, plumbing, and structural systems
are refined. Additionally, architectural details are produced. Design Professional will produce
an approximate 35% completed Design Development Package for the Owner's review and
approval, which shall be sufficient in obtaining construction services for the project. After
approval from the Owner, the 35% Construction Documents will be produced and provide to
Owner to facilitate procurement of the construction services. Services in this phase are defined
in AIA Document BI 01, 3.3.1 and 3.3.3. The Design Professional will also complete a
construction cost estimate as part of this phase of the Design. Upon approval of the Owner, the
Design Professional will submit the construction set for permit.
Note: After expiration of the Feasibility Deadline and Financing Viability Deadline, and upon
election of all Parties to proceed with the project as defined in the Master Development
Agreement, the Design Professional shall continue with the final design of the project,
completing the remaining 65% of the design for the project, as required in the Master
Development Agreement, and defined further as Phase 11 of Design project.
Phase II — Final 100% Progress Set for Design Development - During this phase the
Schematic documents are fully developed to facilitate construction of the project. In this phase
the mechanical, electrical, plumbing, and structural systems are 100% refined. Additionally,
architectural details are produced. Design Professional will produce a 100% completed Design
Development Package for the Owner's review and approval. Design Professional shall submit a
completed coding and zoning research report to the Owner. After approval from the Owner, the
100% Progress Set Documents for Design will be produced and provide to Owner to facilitate
the construction services. Services in this phase are defined in AIA Document BI 01, 3.3.1 and
3.3.3. Upon approval of the Owner, the Design Professional will submit the construction set for
final permitting.
Phase III — Construction Procurement Phase — During this phase the Design Professional
shall provide assistance to the Owner in providing potential respondents for the construction
services, attendance at any pre- solicitation meetings, answering any questions from potential
respondents, assistance in preparing addenda for potential changes to the project, and provide
assistance with the evaluation process of the respondents.
Phase IV — Construction Administration Phase — During this phase the Design Professional
will attend weekly meetings during construction, produce Field Observation reports, review
submittals, produce responses to Request for Information's, and respond in a professional
manner as needed during the construction process. Services in this phase are defined in AIA
Document BI01, 3.6 and in AIA Document A201 -2007.
B. If there is any conflict between the terms of this Agreement and the exhibits attached to this
Agreement, the terms and conditions of the Master Development Agreement will control over
the terms and conditions of the any attached exhibits.
Page 2
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
SECTION III
ADDITIONAL SERVICES
Additional services to be performed by the Design Professional, if authorized by the Owner, which are
not included in the above - described Basic Services, are described as follows:
A. During the course of the Project, as requested by Owner, the Design Professional will be
available to accompany Owner's personnel when meeting with the Texas Commission on
Environmental Quality, U.S. Environmental Protection Agency, or other regulatory agencies.
The Design Professional 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 Design Professional 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 government grants, loans, or planning
advances and providing data for detailed applications.
F. Appearing before regulatory agencies or courts as an expert witness in any litigation with third
parties or condemnation proceedings arising from the development or construction of the
Project, including the preparation of engineering data and reports for assistance to the Owner.
G. Providing geotechnical investigations for the site, including soil borings, related analyses, and
recommendations.
H. The Design Professional shall assist the Owner in reviewing proposed construction changes to
the original design, denying or approving of proposed changes, communicating with the Owner
of such approvals or denials, and ensuring compliance with Attachment I to the Master
Development Agreement # (Payment Applications and Payments to Contractors).
The Design Professional shall assist the Owner with the evaluation of the respondents (General
Contractors) to the solicitation for the construction of the Convention Center, in an advisory
capacity. The Owner shall procure the construction services of a general contractor or trade
contractor in accordance with the provisions of Texas Government Code 2269.206.
Other services within the scope of this project as requested by the Owner.
Page 3
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
SECTION IV
PERIOD OF SERVICE
This Agreement shall become effective upon execution of this Agreement by the Owner and
the Design Professional and upon issue 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 Design Professional 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.
SECTION V
COMPENSATION
A. COMPENSATION TERMS:
1. "Subcontract Expense" is defined as expenses incurred by the Design Professional in
employment of others in outside firms for services of Design Development Activities
under the Master Development Agreement.
2. "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by
the Design Professional for supplies, transportation and equipment, travel,
communications, subsistence, and lodging away from home, and similar incidental
expenses in connection with that assignment.
B. BILLING AND PAYMENT: For and in consideration of the professional services to be
performed by the Design Professional herein, the Owner agrees to pay for the completion of the
35% Design Development Phase as defined in the Master Development Agreement for
maximum fee not to exceed $200,000. After expiration of the Feasibility Deadline and
Financing Viability Deadline, and upon election of all Parties to proceed with the project as
defined in the Master Development Agreement, the Design Professional shall continue with the
final design of the project, completing the remaining 65% of the design for the project, as
required in the Master Development Agreement.
The Owner shall compensate the Design Professional for all services during the Design
Development Phase as follows:
BASIC SERVICES
Phase I - Fee for Initial 35% Completion of Design work shall not exceed: $200,000.
Phase II - Fee for Final 100% Completion of Design work (determined upon election to proceed).
Phase III - Fee for Construction Procurement assistance (determined upon election to proceed).
Page 4
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
Phase IV - Fee for Construction Administration (determined upon election to proceed).
As stipulated in Exhibit E to the Master Development Agreement, the Construction Manager
Agent Services shall equal 3% of the total project costs, (defined as all hard and soft costs for
the design, construction, and development of the Convention Center). The not -to- exceed fee for
the CMA services shall be exclusive of other Subcontract Expense required for the design,
development, inspection, procurement and installation of FF &E and construction of the
Convention Center. The not -to- exceed CMA fee will be fully determined upon final design of
the project, and determination of the Final Convention Center Budget following the award of
the construction contract for the Convention Center.
ADDITIONAL SERVICES
For additional services authorized in writing by the Owner in Section III, the Design
Professional shall be paid based on the Schedule of Charges at an hourly rate as stated below.
Payments for additional services shall be due and payable upon submission by the Design
Professional, and shall be in accordance with Article V hereof. Statements shall not be
submitted more frequently than monthly.
Compensation for Additional Services is as follows:
Rate for Additional Services shall not exceed: $ 175 per hour
REIMBURSABLE EXPENSES
Reimbursable Expenses shall be compensated for expenses (travel, copies, etc.) related to the
Convention Center design project, and shall not exceed a total of $15,000. Invoices for
reimbursable expenses shall be submitted to the Owner in a timely manner.
Partial payments to the Design Professional 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 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 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 not
submitted in compliance with the terms of this Agreement. The Owner shall not be required to
make any payments to the Design Professional when the Design Professional is in default under
this Agreement.
It is specifically understood and agreed that the Design Professional 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 maximum not to exceed fee as
stated, without first having obtained written authorization from the Owner. The Design
Professional shall not proceed to perform the services listed in Section III "Additional
Services," without obtaining prior written authorization from the Owner.
Page 5
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
C. PAYMENT: If the Owner fails to make payments due the Design Professional for services and
expenses within thirty (30) days after receipt of the Design Professional's undisputed statement
thereof, the amounts due the Design Professional will be increased by the rate of one percent
(1 %) per month from the said thirtieth (30th) day or the rate established within Texas
Government Code 2251 (Prompt Payment Act), and, in addition, the Design Professional may,
after giving seven (7) days' written notice to the Owner, suspend services under this Agreement
until the Design Professional has been paid in full all amounts due for services, expenses, and
charges, provided, however, nothing herein shall require the Owner to pay any late charges set
forth herein if the Owner reasonably determines that the work is unsatisfactory, in accordance
with this Section V, "Compensation."
Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E
McKinney St, Denton, TX, 76201 -4299. A pro -forma invoice shall also be sent to the Project
Manager. It is the intention of the City of Denton to make payment on completed orders within
thirty days after receipt of invoice or items; whichever is later, unless unusual circumstances
arise. Invoices must be fully documented as to labor, materials, and equipment provided,
if applicable, and must reference the City of Denton Purchase Order Number in order to
be processed. No payments shall be made on invoices not listing a Purchase Order
Number.
Upon contract award, suppliers are encouraged to receive payments through direct deposit.
SECTION VI
OBSERVATION AND REVIEW OF THE WORK
The Design Professional will exercise reasonable care and due diligence in discovering and promptly
reporting to the Owner any defects or deficiencies in the work of the Design Professional or any
subcontractors or sub - Design Professionals.
SECTION VII
OWNERSHIP OF DOCUMENTS
All documents prepared or furnished by the Design Professional (and Design Professional's
subcontractors or sub - Design Professionals) pursuant to this Agreement are instruments of service, and
shall become the property of the Owner upon the termination of this Agreement. The Design
Professional is entitled to retain copies of all such documents. The documents prepared and furnished
by the Design Professional 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, Design Professional is released from any and all liability relating
to their use in that project.
SECTION VIII
INDEPENDENT CONTRACTOR
Page 6
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
Design Professional shall provide services to Owner as an independent contractor, not as an employee
of the Owner. Design Professional shall not have or claim any right arising from employee status.
SECTION IX
INSURANCE
During the performance of the services under this Agreement, Design Professional shall maintain the
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 Carriers of at least an
A or above, and in accordance with Article 10 of the City of Denton General Conditions for
Agreement for Architectural and Engineering Services.
SECTION X
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties may agree 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 party's disagreement may
include the other party to the disagreement without the other's approval.
SECTION XI
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
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 sub- Design
Professionals 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 Design Professional, its employees, subcontractors, agents, and Design
Professionals.
SECTION XII
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 Design Professional:
Tim O'Reilly
2808 S. Ingram Mill., Bldg. A -104
Springfield, MO 65804
To Owner:
City of Denton
George Campbell, City Manager
215 East McKinney
Denton, Texas 76201
purchasin(cr�,cityofdenton.com
Page 7
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within
three (3) days' mailing.
SECTION XIII
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 stricken provision.
SECTION XIV
PERSONNEL
A. The Design Professional represents that it has or will secure, at its own expense, all personnel
required to perform all the services required under this Agreement. Such personnel shall not be
employees or officers of, nor have any contractual relations with the Owner. Design
Professional shall inform the Owner of any conflict of interest or potential conflict of interest
that may arise during the term of this Agreement.
B. All services required hereunder will be performed by the Design Professional 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.
SECTION XV
ASSIGNABILITY
This agreement shall be binding upon and ensure to the benefit of the City and the Design Professional
and their respective successors and assigns, provided however, that no right or interest in the
agreement shall be assigned and no obligation shall be delegated or transfer of any interest by the
Design Professional (whether by assignment, novation, or otherwise) without the prior written consent
of the Owner.
Any attempted assignment or delegation by the Design Professional shall be void unless made in
conformity with this Section. The Agreement is not intended to confer rights or benefits on any person,
firm or entity not a party hereto; it being the intention of the parties that there are no third party
beneficiaries to the Contract.
SECTION XVI
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
Page 8
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
arising 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 writing and duly executed; and the
parties further agree that the provisions of this section will not be waived unless as set forth herein.
SECTION XVII
MISCELLANEOUS
A. The following exhibits are attached to and made a part of this Agreement: None
B. The Owner shall have the right to audit and make copies of the books, records and
computations pertaining to this agreement. The Design Professional shall retain such books,
records, documents and other evidence pertaining to this agreement during the contract period
and five years thereafter, except if an audit is in progress or audit findings are yet unresolved,
in which case records shall be kept until all audit tasks are completed and resolved. These
books, records, documents and other evidence shall be available, within 10 business days of
written request. Further, the Design Professional shall also require all Subcontractors, material
suppliers, and other payees to retain all books, records, documents and other evidence
pertaining to this agreement, and to allow the Owner similar access to those documents. All
books and records will be made available within a 50 mile radius of the City of Denton. The
cost of the audit will be borne by the Owner unless the audit reveals an overpayment of 1% or
greater of the fee for basic services under this agreement. If an overpayment of 1% or greater
occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Design
Professional which must be payable within five business days of receipt of an invoice. Failure
to comply with the provisions of this section shall be a material breach of this contract and shall
constitute, in the Owner's sole discretion, grounds for termination thereof. Each of the terms
"books ", "records ", "documents" and "other evidence ", as used above, shall be construed to
include drafts and electronic files, even if such drafts or electronic files are subsequently used
to generate or prepare a final printed document.
C. For the purpose of this Agreement, the key persons who will perform most of the work
hereunder shall be . However, nothing herein shall limit
Design Professional from using other qualified and competent members of its firm to perform
the services required herein.
D. Design Professional shall commence, carry 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, Design Professional shall take such steps as
are appropriate to ensure that the work involved is properly coordinated with related work
being carried on by the Owner.
E. The Owner shall assist the Design Professional by placing at the Design Professional'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
Design Professional to enter in or upon public and private property as required for the Design
Professional to perform services under this Agreement.
SECTION XVIII
Page 9
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
GOVERNING LAW
The validity of the Agreement and any of its terms and provisions, as well as the rights and duties of
the Parties, shall be governed by the laws of the State of Texas; and venue for any action concerning
this Agreement shall be in the State District Court of Denton County, Texas.
SECTION XIX
ENTIRE AGREEMENT
This Agreement, including the City of Denton General Conditions to Agreement for Architectural or
Engineering Services, 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. This
Agreement, consisting of pages 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:
I . City of Denton General Conditions to Agreement for Architectural or Engineering Services.
2. Attachments A through B. Attachment A — City of Denton Conflict of Interest Form,
Attachment B — City of Denton Substitute W -9 Form.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
CITY OF DENTON
M.
GEORGE C. CAMPBELL
CITY MANAGER
DESIGN FIRM
Firm's Officer /Representative
(Signature)
Page 10
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
WITNESS:
Page 11
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10
Documents\Exhibit F Design Services Convention Center Project 12 -10 -13 FINAL.docx
CITY OF DENTON
GENERAL CONDITIONS
TO
AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES
ARTICLE L ARCHPI'ECT OR ENGINEER'S RESPONSIBILITIES
1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal ") to which these
General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional'') or Design Professional's employees and Design
Professionals as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services').
1.2 The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skill ordinarily
exercised by members of the same profession currently practicing in the saine locality under similar conditions, including reasonable, informed judgments and prompt timely
actions (the "Degree of Care "). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project.
Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project
proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project.
Time hunts established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any
adjustments to this schedule shall be mutually acceptable to both parties.
ARTICLE 2 SCOPE OF BASIC SERVICES
2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described 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 other engineering services necessary to produce a complete and accurate set of
Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Design Professional, in consultation with the Owner, shall develop a written prograin for the Project to ascertain Owner's needs and to establish the
requirements for the Project.
2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's prograin, construction schedule and construction budget requirements, each in
terms of the other, subject to the limitations set forth in Subsection 5.2.1.
2.2.3 The Design Professional shall review with the Owner alternative approaches to design and construction of the Project.
2.2.4 Based on the mutually agreed -upon prograin, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner,
Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall
contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations.
2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and
which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the
cormmencernent to the completion of construction.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the prograin, schedule or construction budget, the Design
Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and
character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as maybe appropriate, which shall comply
with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owner's approval of the documents, Design Professional represents that the
Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project.
2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described
in Section 2.2.5.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget
authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting
forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations.
2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the
Conditions of the contract, and the form of Agreement between the Owner and contractor.
2.4.3 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements
or general market conditions.
2.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required 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 construction contract for the Project through any procurement method that is legally applicable to the Project including without
Page 12
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAL.docx
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 If 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 - ADIVIINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement cormirences with the award of the Contract
for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2.
2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionals the administration
shall also be in accordance with AIA document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement as maybe
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 for Public Works Construction by the North Central Texas Council of Governments, current as of the date of the Agreement, unless otherwise
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.
2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from
time to time during the correction, or warranty period described in the Contract for 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 otherwise modified by written instrument.
2.6.5 The Design Professional shall observe the construction site at least one time a week, while construction 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 detennine if the work is being perfonned 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 infonned of the progress and quality of the work, and shall
exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects 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, use of or
payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the
Owner's rights hereunder.
2.6.6 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 programs 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 omis-
sions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, 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.
2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor
shall cormnunicate through the Design Professional. Cormnunications by and with the Design Professional's Design Professionals 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.
2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional's observations 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 subject to minor deviations from the Contract Documents cor-
rectable prior to completion and to specific qualifications expressed by the Design Professional. 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 (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor
has used money previously paid on account of the Contract Sum.
2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not confonn to the 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. However, 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 Contractor, 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 (1) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when
completed, will be in compliance with 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 construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to
pennit 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 perfonnance of equipment or systerns designed by the Contractor, all of which rernain 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 otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences or procedures. The Design Professional's
Page 13
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAE.docx
approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of perfonnance characteristics
of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the
materials, systems or equipment will meet the performance criteria required by the Contract Documents.
2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by
the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may
authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract 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 detemiine 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 be assembled by the Contractor 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 recormnendations on matters concerning perfonnance of the Owner and Contractor under the requirements
of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable
promptness and within any time limits agreed upon.
2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall
be in writing or in the fonn of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful perfonnance
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 render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and
Contractor relating to the execution or progress of the work as provided in the Contract Documents.
2.6.18 The Design Professional (1) 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 prepares; and (3) by acknowledging payment by the Owner of any fees 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.
2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Construction 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 Services unless so identified in the Agreement 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. If services 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 cormnence such additional services until it receives written
approval from the Owner 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.
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1 If more extensive representation 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 carrying 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 compensated 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:
1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's
prograin 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 required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except
for services required under Subsection 2.5.2.
3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and
Construction Change Directives.
3.3.4 Providing consultation concerning replacernent of work damaged by fire or other cause during construction, and furnishing services required in connection with
the replacernent of such work.
Page 14
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\flotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAL.docx
3.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of perfonnance
of either the Owner or Contractor under the Contract for Construction.
3.3.6 Providing services in evaluating an extensive number of clanns 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 preparing documents for alternate, separate or sequential bids or providing services in connection
with 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 described in this Article 3 that are
caused or necessitated in whole or in part due to the negligent act or ornission of the Design Professional shall be perfonned 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 Professional for the Basic Services. The
intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing financial feasibility or other special studies.
3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites.
3.4.3 Providing special surveys, enviromnental studies and submissions required for approvals of govemrnental 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 infonnation furnished by the Owner.
3.4.7 Providing coordination of construction perfonned by separate contractors or by the Owner's own forces and coordination of services required in connection with
construction perfonned 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 connection 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 final Certificate for Payment and expiration of the Warranty
period of the Contract for Construction.
3.4.15 Providing services of Design Professionals for other than architectural, civil, structural, mechanical and electrical engineering portions of the Project provided
as a part of Basic Services.
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 con-
struction 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 ornission of the Design Professional shall be perfonned 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 Professional for the Basic Services. The
intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18.
ARTICLE 4 OWNER'S RESPONSIBILITIES
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 speci-
fically described in Subsection 2.2.1.
4.2 The Owner shall establish 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 fumish evidence that financial arrangements have been made to fulfill the Owner's obligations under this
Agreement.
Page 15
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\flotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAL.docx
4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall
render decisions in a finely 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, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations,
dimensions and necessary data pertaining to existing 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 infonnation on the survey shall be referenced to a project benclunark.
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 re-
sistivity 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 Design Professionals 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 its 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 reports 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 Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on
behalf of the Owner.
4.9 The services, infonnation, 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 accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional.
4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconfonnance with
the Contract Documents.
4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's Design
Professionals 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 services beyond the scope of the Agreement.
ARTICLE 5 CONSTRUCTION COST
5.1 CONSTRUCTION COST DEFINED
5.1.1 The Construction 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 materials famished by the Owner and equipment designed, specified, selected or
specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for con-
tingencies 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 Design Professionals, the costs of the land,
rights -of -way, financing or other costs which are the responsibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates 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 Contractor's methods of determining bid prices, or over
competitive bidding or market conditions. 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 the famishing, proposal or establishment of a Project budget, unless
such fixed lunit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be pennitted
to include contingencies for design, bidding and price escalation, to determine what materials, equipment, 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 alternate bids to adjust the
Construction Cost to the fixed limit. Fixed lunits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract
for Construction.
5.2.3 If the Procurement Phase has not cormmenced within 90 days after 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.
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 projects shall be at Owner's sole risk and expense. In the event the
Page 16
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\flotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAL.docx
Owner uses any of the infonnation or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design
Professional is released from any and all liability relating to their use in that project
6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication
in derogation of the Design Professional's reserved rights.
ARTICLE 7 TERMUNATION, SUSPENSION OR ABANDONMENT
7.1 The Design Professional may tenninate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in accordance with the
tenns of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof only with cause and after reasonable prior
written notice to the Design Professional and reasonable opportunity to cure by the Design Professional. All work and labor being perfonned 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 tennination 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 infonnation.
7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to
notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption
and resumption of the Design Professional's services.
7.3 The Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is pennanently
abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, 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 satisfactorily completed in accordance with the Agreement shall be considered substantial non-
perfonnance and cause for tennination.
7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design
Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement.
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 perfonned 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 benefits.
8.2 REIMBURSABLE 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 Design Professionals in the interest of the Project, as identified in the following Clauses.
8.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out -of -town travel; long- distance communications;
and fees paid for securing approval of authorities having jurisdiction over the Project.
8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings,
Specifications and other documents.
8.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular 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.
8.2.1.6 Other expenses that are 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 perfonned within each phase of service, on the
basis set forth in Section 2 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 2 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 2 of the
Agreement based on (1) 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
Page 17
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAL.docx
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 rendered or expenses incurred.
8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or 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 perfonned on the basis of a multiple of Direct Personnel Expense for inspection and
copying during regular business hours for 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.
/_\NYIf10WX1►911Nd101IM1
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 injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers,
shareholders, agents, or employees in the perfonnance 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 law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which
defenses are hereby expressly reserved.
ARTICLE 10 INSURANCE During the perfonnance of the Services under the Agreement, Design Professional shall maintain the following insurance with an
insurance company licensed or authorized to do business in the State of Texas by the State Insurance Cormnission or any successor agency that has a rating with Best
Rate Carriers of at least an A- or above:
10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less 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 $100,000 for each
accident including occupational disease.
10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate.
10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 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
modified without thirty (30) days' prior written notice to Owner and Design Professional. In 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 10.
/_\ NI1toMDif■ uILTON1111 _VI91193U:Z11110113k1z
11.1 The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County,
Texas.
11.2 The Owner and Design Professional, respectively, bind themselves, their partners, 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 tenn Agreement as used herein includes the executed Agreement, these General Conditions and other attachments referenced in Section 3 of the Agreement which
together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior 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, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to
hannonize the provisions. However, should the provisions of these documents be in conflict so that they cannot be reasonably hannonized, such documents shall be given
priority in the following order:
1. The executed Agreement
2. Attachments referenced in Section 3 of the Agreement
3. These General Provisions
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 Design Professional's materials shall not include the Owner's
Page 18
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAL.docx
confidential or proprietary infonnation if the Owner has previously advised the Design Professional in writing of the specific infonnation considered by the Owner to be confi-
dential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction 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 subDesign Professionals 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 Design Professional, its employees, subcontractors, agents, and Design
Professionals.
11.7 All notices, cormnunications, 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 requested, unless otherwise specified herein.
All notices shall be deemed effective 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 reform 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 The 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 tenn of this Agreement.
11.10 In performing 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 infonnational purposes only, and shall not in anyway affect the substantive tenns or conditions of the Agreement.
11.12 Owner Understands and acknowledges that Design Professional, in implementing its fiduciary responsibilities for the Owner, will delegate many of its duties and
responsibilities herein to the general contractor, outside design professionals and other subcontractors hired by Design Professional to provide various design,
inspection, procurement, installation and related services. Regardless of such delegation, Design Professional will remain absolutely responsible to Owner for the
services required hereunder. Nothing herein shall affect the Design Professional's fiduciary responsibility to the Owner as set forth in Chapter 2269 of the Texas Local
Government Code.
Page 19
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\flotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAL.docx
Attachment A
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session.
OFFICE USE ONLY
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a
Date Received
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 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity
not later than the 7th business day after the date the 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.
Name of person who has a business relationship with local governmental entity.
2
❑ Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business
day after the date 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?
0 Yes 0 No
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?
0 Yes 0 No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer
serves as an officer or director, or holds an Ownership of 10 percent or more?
0 Yes 0 No
D. Describe each affiliation or business relationship.
4
Signature of person doing business with the governmental entity Date
Page 20
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10 DOCUments\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAE.docx
Adopted 06/29/2007
Page 21
\ \CODAD\Departments \City Manager's Office \cmo \Jon Fortune\Hotel & Convention Center \Oreilly\Developers Agreement\December 10 Documents\Exhibit F Design
Services Convention Center Project 12 -10 -13 FINAE.docx
Attachment B
City of Denton Purchasing
901 -B Texas St. Denton, TX 76209
Phone: (940) 349-7100 Fax: (940) 349-7302
www.dentonpurchasing.com
Substitute W -9 Form
The IRS requires all vendors to complete a W -9 Form. The information on this form must be filled out, signed and submitted by a
vendor representative. All information must be completed before a purchase order or payment will be issued.
Name as shown on your income tax return:
Tax ID /Social Security #:
Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I
am waiting for a number to be issued to me), and 2. 1 am not subject to backup withholding because (a) I am exempt from
backup witholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding
as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup
withholding, and 3. 1 am a US citizen or other U.S. person -for fededral tax purposes as defined at the bottom of this page *.
Authorized Signature: Printed Name:
Mailing Address:
Company Name: Email:
Contact Name:
Address:
Website:
Phone Number:
Fax Number:
Check appropriate box for federal tax classification (required):
Individual/ Limited
❑ Sole El Corporation Partnership E] El Liability Other
Proprietor Corporation Please specify:
Must designate C or S
❑ C
Exempt
El
El n ., p
Real Estate Equipment
Business Type: ❑ Rental /Lease (Al) ❑ Rental /Lease (A -9) ❑ Royalties (A -2) ❑
Medical /Health Care (A -6)
Services Only (A- Merchandise- Merchandise &
❑ 7) ❑ Goods Only (A -7) ❑ Services (A -7) ❑ Legal Firm /Attorney (A -C)
Consultant/Prof Proceeds from
Fees (A -7) Real Estate
❑ Purchases (S)
Type of Organization: El Minority
Owned El Female Owned El Non Profit El Historically Underutilized
Business
*Definition of a U.S. Person -For Federal Tax purposes, you are considered a U.S. person if you are: (a) an individual who is a U.S. citizen or
U.S. resident (b) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United
States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined in Regulations Section 301.7701 -7).
COD Page 1 9/23/2011
Attachment B
Vendor Information Not Required for W -9 Form
Remit Address (if different from above)
Company Name:
Contact Name:
Address:
Email:
Phone Number:
Fax Number:
List Products and /or Services Interested in Bidding:
For Internal Use Only
❑ New Vendor
❑ Vendor Change
❑ Refund
Requesting Department:
Department Representative (Printed Name)
Purchasing Signature:
ACH Information - Voluntary
ABA Routing #:
Contact Name:
Bank Account#
Bank Name:
ACH Email:
ACH Email:
Phone Number:
Fax Number:
Vendor Number
Date:
Date:
I (we) authorize the City of Denton to deposit
payments into the checking account listed. The
authority remains in effect until the City of Denton
has received written notification from me of
termination in time to allow reasonable opportunity
to act on it, or until the City of Denton has sent me
written notice of termination of the agreement.
Vendor Signature
Print Name /Title
Date
COD Page 2 9/23/2011