1998-108 NO
AN ORDINANCE OF THE CITY OF DENTON TEXAS AUTHORIZING THE CITY MANAGER
TO EXECUTE A PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF
DENTON AND BINKLEY AND BARFIELD, INC FOR THE ENGINEERING DESIGN OF
MODIFICATIONS TO CENTRAL FIRE STATION TRUCK BAY FLOOR, CONCRETE
DRIVEWAYS AND SOUTH RETAINING WALL IN THE AMOUNT OF $31,200, PROVIDING
FOR THEIEXPENDITURE OF FUN-DS THEREFOR, AND PROVIDING FOR AN EFFECTIVE
DATE (PROPOSAL # 2151 - CENTRAL FIRE STATION TRUCK BAY MODIFICATION -
BINKLEY AND BARFIELD, INC IN THE AMOUNT OF $31,200 000)
WHEREAS, Chapter 2254 of the Texas Government Code, known as the Professional
Services Procurement Act, provides that a C~ty may not select a prowder of professional servmes
on the baals of competitive bids but on the basis of demonstrated competence and qualification and
for a fair and reasonable price, and
WHEREAS, the professional fees under the proposed contract are consistent with and not
tugher than the recommended praetsces and fees pubhshed by the apphcable professional aasomatlon
and do not exceed an maximum pmwded by law, and
WI-IEREAS, the City Council has promded in the C~ty Budget for the appmpnation of funds
to be used for the purchase of the sennees set forth m the proposed contract, NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
~ That the City Manager is hereby authorized to execute on behalf of the C~ty
of Denton, Texas, a professional services contract, substantially the same as the contract which ~s
attached hereto and made a part hereof for all purposes, that provides services relating to Engineering
Design aa defined m Proposal # 2151 Central Fire Stataon Track Bay Modfficatlon with Bmkley and
Barfield, Inc in the amount of $31,200 00
~ That the award ofttus contract is on the basis of demonstrated competence
and quahficatmns of the provider of professional servmes under this contract and the ahihty of such
provider to perform the needed servmes for a fmr and reasonable price
~ That tins ordinance shall become effective nnmechately upon ~ts passage and
approval
PASSED AND APPROVED thls the ~/~dayof ~t~-/~/ ,1998
JACK~I~ER, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
PROPOSAL2151 PROFES,qlONAL SERVICE ORDINANCE
PROFESSIONAL SERVICES AGREEMENT
FOR ENGINEERING SERVICES
STATE OF TEXAS §
COUNTY OF DENTON §
THIS AGREEMENT ts made and entered into as of the 2]_ day of
APRIL , 19 98 , by and between the C~ty of Denton, Texas, a Texas mun~mpal
corporation, w~th ~ts pnnc~pal office at 215 East McKtnney Street, Denton, Denton County,
Texas 76201, hereinafter called "CITY" and BINKLEY & BARFIELD, INC, w~th tts corporate
office at 12860 Hfllcrest Road, State 222, Dallas, TX 75230-1519, heretnafcer called
"ENGINEER," acting hereto, by and through their duly authorized representattves
WITNESSETH, that m conslderatmn of the covenants and agreements hereto contmned,
the part, es hereto do mutually agree as follows
ARTICLE I
EMPLOYMENT OF ENGINEER
The CITY hereby contracts wtth the ENGINEER, as an tndependent contractor, and thc
ENGINEER hereby agrees to perform the services herein tn connection w~th the ProJect as stated
~n the sectmns to follow, w~th diligence and m accordance wtth the h~ghest professtonal
standards customarily obtmned for such servmes in the State of Texas The professmnal servmcs
set out here~n are m connectmn voth the following described project
The ProJect shall ~nclude, vothout hmttat~on, the preparatmn of construction plans,
specfficattons, details, and specml prowsmns for the replacement of the Downtown F~re Statton
Truck Bay Floor, Driveway, and South Reta~mng wall located m the Ctty of Denton, Denton
County, Texas, herematler called the "PROJECT"
ARTICLE II
SCOPE OF SERVICES
The ENGINEER shall perform the followm§ servmes m a professional manner
A The ENGINEER shall perform all those services as necessary and as described tn
"Exlub~t A", wtuch ~s attached hereto and made a part hereof as tf written word for word
herem
B ENGINEER shall perform all those servxces set forth tn md~vtdual task orders wtuch
shall be attached to th~s Agreement and made a part hereof for all purposes as separate
agreements
C If there ~s any conflict between the terms of th~s Agreement and the exhibits attached to
th~s Agreement, the terms and condtt~ons of thts Agreement will control over the terms
and cond~ttons of the attached extubtts or task orders
ADDITIONAL SERVICES
Additional services to be performed by the ENGINEER, if authonzed by the CITY,
wl~ch ars not included in the above-d~scnbed Basic Services, are described as follows
A During the course of the Project, as requested by CITY, the ENGINEER will be avmlable
to accompany CITY's personnel when meetmg w~th the Texas Natural Resource
Conservation Commission, U S Environmental Protection Agency, or other regulatory
agencies The ENGINEER will assist CITY's personnel on an as-needed basis in
propanng compliance schedules, progress reports, and providing general techmcal
support for the CITY's comphanee efforts
B Assisting CITY or contractor m the defense or prosecution of htlgat~on m connection
with or m addmon to those serwees contemplated by this Agreement Such services, ~f
any, shall be furmshed by ENGINEER on a fee basis negotiated by the respectave parties
outside of and m addmon to flus Agreement
C Sampling, testing, or analysis beyond that specifically ~neluded m Bas~e Services
D Prepanng copies of computer reded drafting (CAD) eleetrome data bases, drawings, or
files for the CITY's use in a future CAD system
E Prepanng applications and supporting documents for government grants, loans, or
planmng advances and prowdmg data for detmled appheations
F Appeanng before regulatory agencies or courts as an expert w~tness m any litigation w~th
tbard parties or condemnation proceedings arising from the development or construction
of the ProJect, including the preparation of engmeenng data and reports for assistance to
the CITY
G Prowchng geotechmcal ~nvestlgatlons for the site, including soil bonngs, related analyses,
and re~ommendations
H Those services descnbed in Exhibit "A" as special services and wbach are already
approved by the City and also included m the compensation of services
ARTICLE IV
PERIOD OF SERVICE
Tbas Agreement shall become effective upon execution of flus Agreement by the CITY
and the ENGINEER and upon assue of a notate to proceed by the CITY, and shall remain m
force for the period wbaeh may reasonably be required for the completion of the Project,
Page 2
including Adchtlonal Services, if any, and any required extensions approved by the CITY The
proposed schedule for the work is described in Exhibit "B", attached hereto and made a part
hereof as ffwntten word for word This Agreement may be sooner terminated in accordance with
the provisions hereof Time is of the essence in flus Agreement The ENGINEER shall make all
reasonable efforts to complete the services set forth herein as expeditiously as possible and to
meet the schedule established by the CITY, acting through its City Manager or his designee
CITY agrees to provide the information set forth in Exinbit "D', attached hereto and made a part
hereof as ffwntten word for word before the commencement of the engineer's services
COMPENSATION
A BILLING AND PAYMENT For and in consideration of the professional services to be
performed by the ENGINEER harem, the CITY agrees to pay, based on the cost estimate
detail at a lump sum rate shown in Exinbtt "C" winch is attached hereto and made a part
of flus Agreement as if written word for word herein, a total fee, including reimbursement
for chrect non-labor expenses not to exceed $31,200 00
Partial payments to the ENGINEER will be made on the bas~s of det~uled monthly
statements rendered to and approved by the CITY through its City Manager or Ms
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 CITY
may withhold the final five percent (5%) of the contract amount until completxon of Ins
S~lCeS
Nothmg cunt~ned m ~ns Ar~cle shall require thc CITY to pay for any work winch ~s
unsatisfactory, as reasonably determined by the City Manager or h~s designee, or winch is
not submitted in compliance w~th the terms of this Agreement The CITY shall not bc
required to make any payments to the ENGINEER when the ENGINEER ~s in default
under tins Agreement
It is specifically understood and agreed that the ENGINEER shall not be authorized to
undertake any work pursuant to this Agreement winch would require additional payments
by the CITY for any charge, expense, or reimbursement above the maximum not to
exceed fee as stated, without first having obtmned written authorization from the CITY
The ENGINEER shall not proceed to perform the servmes listed in Article HI
"Additional Services," without obtalmng prior written authorization from the CITY
B ADDITIONAL SERVICES For additional services authorized in writing by the CITY
in Article III, the ENGINEER shall be pad based on a rate to be agreed upon by the
part,es Payments for additional services shall be due and payable upon subm~ssion by
the ENGINEER, and shall be m accordance with subsection A hereof Statements shall
not be submitted more frequently than monthly
C PAYMENT If the CITY fails to make payments due the ENGINEER for services and
expenses within sixty (60) days attar receipt of the ENGINEER's undisputed statement
Page 3
thereof, the mounts due the ENGINEER will be increased by the rate of one percent
(1%) per month from the smd saxtieth (60*) day, and, m addlUon, the ENGINEER may,
after gtvmg seven (7) days' written noUce to the CITY, suspend services under t!us
Agreement until the ENGINEER has been prod m full all amounts due for services,
expenses, and charges, pmwded, however, notfung herein shall reqmre the CITY to pay
the late charge of one percent (1%) set forth herein ff the CITY reasonably detenmnes
that the work is unsatisfactory, in accordance w~th flus A~t~cle V, "Compensatmn"
OBSERVATION AND REVIEW OF THE WORK
The ENGINEER will exercise reasonable care and due diligence in dlscovenng and
promptly reporting to the CITY any defects or deficiencies in the work of the ENGINEER or any
subcontractors
OWNERSHIP OF DOCUMENTS
All documents prepared or furmshed by the ENGINEER (and ENGINEER's
subcontractors) pursuant to this Agreement are ~nsWaments of service, and shall become the
property of the ENGINEER upon the termmatmn of flus Agreement The CITY is entitled to
retain copies of all such documents The documents prepared and furnished by the ENGINEER
are intended only to be applicable to th~s Project, and CITY's use of these documents an other
projects shall be at CITY's sole risk and expense In thc event the CITY uses any of the
mformaUon or materials developed pursuant to this Agreement in another project or for other
purposes than specified herein, ENGINEER ~s released from any and all habfllty relating to their
use in that project
INDEPENDENT CONTRACTOR
ENGINEER shall prowde services to CITY as an independent contractor, not as an
employee of the CITY ENGINEER shall not have or claim any right arising from employee
status
INDEMNITY AGREEMENT
The ENGINEER shall ~ndemmfy and save and hold harmless the CITY and its officers,
agents, and employees from and ag/unst any and all hablhty, claims, demands, damages, losses,
and expenses, including, but not hm~ted to court costs and reasonable attorney fees recurred by
the CITY, and including, without hm~taUon, damages for bodily and personal injury, death and
property damage, resulting from the neghgent acts or omissions of the ENGINEER or as
officers, shareholders, agents, or employees ~n the execution, operation, or performance of th~s
Agreement
Page 4
Nothing in this Agreement shall be construed to create a habd~ty to any person who Is not
a party to thts Agreement, and notlung herein shall waive any of the parttes' defenses, both at
law or eqmty, to any claim, cause of actton, or litigation filed by anyone not a party to th~s
Agreement, including the defense of governmental lmmumty, which defenses are hereby
expressly reserved
INSURANCE
Dunng the performance of the services under this Agreement, ENGINEER shall malntmn
the following insurance wtth an insurance company licensed to do business m the State of Texas
by the State Insurance Comrmsston or any successor agency that has a rating with Best Rate
Carriers of at least an A- or above
A Comprehensive General Llabthty Insurance with bodily injury limits of not less than
$500,000 for each occurrence and not less than $500,000 m the aggregate, and wtth
property damage hmlts of not less than $t00,000 for each occurrence and not less than
$100,000 m the aggregate
B Automobile Lmbfltty Insurance with bodily injury limits of not less than $500,000 for
each person and not less than $500,000 for each accident, and wtth property damage
hmlts of not less than $100,000 for each accident
C Worker's Compensation Insurance in accordance wtth statutory requirements, and
Employers' Ltabthty Insurance with hmtts of not less than $100,000 for each accident
D Professtonal Llablhty Insurance wtth hmlts of not less than $1,000,000 annual aggregate
E The ENGINEER shall fumtsh tnsurance certfficates or insurance pollmes at the CITY's
request to emdenee such coverages The insurance policies shall name the CITY as an
addtttonal insured on all such policies, and shall contain a provlmon that such insurance
shall not be canceled or modffied without thtrty (30) days' prior written notme to CITY
and ENGINEER In such event, the ENGINEER shall, prior to the effective date of the
change or cancellation, serve substttute pohctes furnishing the same coverage
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The pames may agree to settle any dtsputes under thts Agreement by submitting the
dispute to arbttratton or other means of alternate dispute resolution, such as medtatton No
arbitration or alternate dispute resolutton arising out of or relattng to this Agreement, mvolmng
one party's thsagreement, may include the other party to the disagreement w~thout the other's
approval
Page 5
TERMINATION OF AGREEMENT
A Notwithstanding any other prowslon of tins Agreement, either party may temunate by
giving thirty (30) days' advance written notice to the other party
B This Agreement may be terminated in whole or in part in the event of either party
substantially fmhng to fulfill its obligations under this Agreement No such termlnatmn
will be affected unless the other party is given (1) written notice (delivered by certified
mall, return receipt requested) of intent to terminate and setting forth the reasons
specifying the non-performance, and not less than thirty (30) calendar days to cure the
failure, and (2) an opportumty for consultation with the terminating party prior to
termination
C If the Agreement is terminated prior to completion of the services to be provided
hereunder, ENGINEER shall immediately cease all services and shall render a final bill
for services to the CITY within thirty (30) days aider the date of termination The CITY
shall pay ENGINEER for all services properly rendered and satisfactorily performed and
for reimbursable expenses to terrmnatlon incurred prior to the date of termination, in
accordance with Article V "Compensation' Should the CITY subsequently contract
with a new ENGINEER for the continuation of services on the Project, ENGINEER shall
cooperate m providing information The ENGINEER shall turn over all documents
prepared or furmshed by ENGINEER pursuant to this Agreement to the CITY on or
before the date of termination, but may maintmn copies of such documents for its use
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Appwval by the CITY shall not constitute, nor be deemed a release of the responsibility
and liability of the ENGINEER, its employees, associates, agents, subcontractors, and
subENGINEERs for the accuracy and competency of their designs or other work, nor shall such
approval be deemed to be an assumptaon of such responsibility by the CITY for any defect in the
design ov other work prepared by the ENGINEER, its employees, subcontractors, agents, and
ENGINEERs
NOTICES
All notices, communications, and reports reqvared or permitted under this Agreement
shall be personally delivered or mailed to the respective parties by depositing same in the United
States mall to the address shown below, certified mall, return receipt requested, unless otherwise
specified herein Msaled notices shall be deemed communicated as of three (3) days' maihng
Page 6
To ENGINEER
To CITY
Fred Balster P E
BINKLEY & BARFIELD, INC
12860 Hfllcrest Road, State 222
Dallas, TX 75230-1519
C~ty of Demon
Ross Chadwick, Ftre Chief
217 W Mcganney
Denton, Texas 76201
All notices shall be deemed effective upon receipt by the party to whom such not~ce is
given, or within three (3) days' marling
ENTIRE AGREEMENT
Thts Agreement, consisting of lo pages and ~ exhibits, constitutes the
complete and final expression of the agreement of the parties, and ~s intended as a complete and
exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous
offers, promises, representataons, negotiations, discussions, commumcauons, and agreements
wluch may have been made m connection with the subject matter hereof
SEVERABILITY
If any prowsion of tbas Agreement ~s found or deemed by a court of competent
jurisdiction to be mvalxd or unenforceable, it shall be considered severable from the remmnder of
flus Agreement and shall not cause the remmnder to be ~nval~d or unenforceable In such event,
the parties shall reform ttus Agreement to replace such stricken pmvlslon w~th a vahd and
enforceable prowslon which comes as close as possible to expressing the ~ntention of the stricken
provlslon
COMPLIANCE WITH LAWS
The ENGINEER shall comply w~th all federal, state, and local laws, roles, regulations,
and ordinances applicable to the work covered hereunder as they may now read or hereinafter be
amended
DISCRIMINATION PROHIBITED
In performing the services reqmred hereunder, the ENGINEER shall not discnrmnate
agmnst any person on the bas~s of race, color, rehglon, sex, national ongan or ancestry, age, or
physical hanchcap
Page 7
PERSONNEL
A The ENGINEER represents that at has or will secure, at its own expense, all personnel
reqmred to perform all the servaces reqmred under this Agreement Such personnel shall
not be employees or officers of, or have any contractual relataons wath the CITY
ENGINEER shall reform the CITY of any conflact of Interest or potential conflict of
interest that may arise dunng the term ofthas Agreement
B All services reqmred hereunder wall be performed by the ENGINEER or under ~ts
supervasmn All personnel engaged an work shall be qualffied, and shall be authorized
and penmtted under state and local laws to perform such servaces
ASSIGNABILITY
The ENGINEER shall not assign any anterest in th~s Agreement, and shall not transfer
any interest in flus Agreement (whether by assagnment, novation, or otherwase) without the prior
written consent of the CITY
MODIFICATION
No waaver or modffieat~on of flus Agreement or of any covenant, condition, or hnntatlon
herean contained shall be valid unless m writing and duly executed by the party to be charged
therewith, and no evadence of any wmver or modfficat~on shall be offered or received in evidence
an any proceedmg ansmg between the partaes hereto out of or affecting this Agreement, or the
rights or obligatmns of the partaes hereunder, and unless such waiver or modffication is ~n
writing and duly executed, and the pames further agree that the provlsmns ofthas seetaon will not
be waaved unless as set forth hereto
MISCELLANEOUS
A The followmg exhibits are attached to and made a part of flus Agreement (last exhibits)
Exlubat "A" Basra Servmes and Special Servmes
Exlubat "B' Schedule of Completaon
Exlubat "C" Cost Schedule
Exhthat "D' Item to be Funushed by City of Denton
l~xhabat "E' Last of Subcontractors
B ENGINEER agrees that CITY shall, untJ1 the expiration of three (3) years aider the final
payment under thas Agreement, have access to and the right to examane any directly
pertanent books, documents, papers, and records of the ENGINEER mvolwng
transactmns relatmg to flus Agreement ENGINEER agrees that CITY shall have access
dunng normal workang hours to all necessary ENGINEER facflatleS and shall be provaded
P~e8
adequate and appropriate workang space ~n order to conduct audats ~n compliance wath
tins section CITY shall give ENGINEER reasonable advance notme of intended andas
C Venue of any stat or cause of action under thas Agreement shall he exclusavely m Denton
County, Texas Ttus Agreement shall be construed m accordance wath the laws of the
State of Texas
D For the purpose of tbas Agreement, the key persons who wall perform most of the work
hereunder shall be ~mm ~*.~ER. P.E. However, notlung herean shall
hmlt ENGrNEER from using other quahfied and competent members of its firm to
perform the servmes reqmred herean
E ENGINEER shall commence, carry on, and complete any and all projects wath all
apphcable dispatch, m a sound, eeonormcal, and efficient manner and m accordance w~th
the provamons hereof In aecomphsinng the projects, ENGINEER shall take such steps as
are appropriate to ensure that the work involved is properly eoordmated wath related
work being camed on by the CITY
F The CITY shall assist the ENGINEER by placang at the ENGINEER's dmposal all
available mformataon 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 ENGINEER to enter in or upon public and private property as required for the
ENGINEER to perform servaees under tins Agreement
G The captions ofth~s Agreement are for reformational purposes only, and shall not m any
way affect the substanUve terms or condltaons of tins Agreement
IN WITNESS HEREOF, the City of Denton, Texas has caused flus Agreement to be
executed by its duly authorized City Manager, and ENGINI~ER has executed this Agr..eement
through its duly authorized undersigned officer on this the ~'~/~- day of
1998 ' ~_~j~
CITY OF DENTON, TEXAS
T~D BENAVIDES, CITY MANAGER
A'ITgST
JENNIFER WALTERS, CITY SECRETARY
Page 9
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY AXTORNEY
ENGINEER Bxnkle~. 13~fielcl.
l~e-d~afiter, P-E
V~ce-Pres~dent
WITNESS
Page 10
EXHIBIT A
BASIC SERVICES
The scope of services includes civil engmeenng services for the replacement of the
Downtown fire station truck bay floor, replacement of the concrete driveways and
replacement of the south retawang wall for the width of the building Services would
include assistance m the bidding and construction phases The estunated construction
cost of the project is as follows
F~re station floor $ 184,000
Driveway pavement 55,000
Retaining wall ~
Total $ 259,000
SPECIAL SERVICES
1 A topographic survey of the property locating the budding, walls,
driveways, sidewalks and other appurtenances The survey would include
floor and doorway elevations
2 Geo-techmcal investigation includes determmatwn of the depth of rock
and/or foundation material, determination of the expansion capabilities of
the soil, and retain wall design parameters
3 Construction phase services would include periodic site visits dunng
construction, on call consultation with owner and contractor, and checking
contractor pay estunates
EXHIBIT B
The schedule for completion of the design phase is 90 calendar days
EXHIB1T C
BASIC SERVICES LUMP SUM FEES
Braiding floor plans $ 15,000
Driveway plato 5,000
Retaining wall plans 2.000
Total $ 22,000
SPECIAL SERVICES
Topograpluc survey $ 2,500
Geo-techmcal mvesugauon 2,700
Expenses (plotting and pnntmg) 2,000
Constmctwn phase support $ 2.000
Total $ 9,200
Grand Total $ 31,200
EXHIBIT D
Items to be furmshed by the City
1 Horizontal and vertical control data
2 As built plans of the exisung infrastructure
3 Construction inspection
EXHIBIT E
Subcontractor List
IOM, Inc - Survey Services
Terra-Mar, Inc - Geo-techmcal Services