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1998-136AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH CARTER & BURGESS, INC FOR UNICORN LAKE ENGINEERING SERVICES, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the C~ty Council deems it ~n the pubhc interest to hire Carter & Burgess, Inc to provide professional engmeenng services to prowde a topographic survey, hydrological analysis and design services for Unicom Lake, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the C~ty Manager Is hereby authorized to execute a Professional Servmes Agreement with Carter & Burgess, Inc for professional englneenng services for Umcom Lake, in substantially the form of the Agreement attached hereto and incorporated here~n by reference SECTION II. That the expenditure of funds as prowded m the attached Agreement is hereby authorized SECTION III. That thru orchnance shall become effective immediately upon ~ts passage and approval PASSED AND APPROVED thls the/~ day of ,/~t~ ,1998 ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM ~'~ HERBERT L PROUTY, C~ PROFESSIONAL SERVICES AGREEMENT FOR UNICORN LAKE ENGINEERING SERVICES STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT ~s made and enterext rote as of the 2na day of April, 1998, by and between the C~ty of Denton, Texas, a Texas mumc~pal corporation, with ~ts pnnc~pal office at 215 East McKanney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Carter & Burgess, Inc, w~th ~ts corporate office at 7950 Elmbrook, Dallas, Texas 75247, heremaRor called "CONSULTANT," acting hereto, by and through their duly anthonzed repre- sentatives WITNESSETH, that ~n consideration of the covenants and agreements hereto contained, the part, es hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The O',~fNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services hereto m connection w~th the Project as stated m the sections to follow, w~th dlhgence and m accordance w~th the baghest pro- fess~onal standards customarily obtoaned for such services ~n the State of Texas The profes- sional serwces set out here~n are m connection w~th the following described project The Project shall include, w~thout hmltatlon, to prowde a topographic survey, hydrolog~- cal and hydrauhc analys~s and design services for the spdlway, and dam design and grading plan for Umcom Lake ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services ~n a professional manner A To perform all those sermces set forth m CONSULTANT's Scope of Services dated Feb- mary 25, 1998, whtch proposal ~s attached hereto and made a part hereof as Exhibit "A" as ~fwntten word for word hereto B CONSULTANT shall perform all those services set forth ~n ~nd~vldual task orders which shall be attached to th~s Agreement and made a part hereof for all purposes as separate agreements C If there is any conflmt between the terms of thxs Agreement and the extub~ts attached to this Agreement, the terms and conditions of thxs Agreement will control over the terms and condmons of the attached exhibits or task orders ARTICLE III ADDITIONAL SERVICES Addatmnal services to be performed by the CONSULTANT, ff authorized by the OWNER, wfuch are not included m the above-described Basra Services, are described as fol- lows A Dunng the course of the ProJect, as requested by OWNER, the CONSULTANT will be available to accompany OWNER's personnel when meeting w~th the Texas Natural Re- source ConservaUon Commission, U S Enwronmental Protection Agency, or other regulatory agencies The CONSULTANT will assist OWNER's personnel on an as- needed bas~s m prepanng comphanee schedules, progress reports, and prowdmg general techmcal support for the OWNER's comphance efforts B Assxstlng OWNER or contractor in the defense or prosecution of llt~gat~on m connectmn with or m addition to those services contemplated by th~s Agreement Such services, xf any, shall be furmshed by CONSULTANT on a fee basxs negotxated by the respective parties outsxde of and m addxtxon to th~s Agreement C Sampling, testing, or analysis beyond that specifically included m Basle Servmes D Prepanng cop~es of computer a~ded drafting (CAD) electromc data bases, drawings, or files for the OWNER's use xn a future CAD system E Prepanng apphcatxons and supporting documents for government grants, loans, or plan- ning advances and prowdmg data for detmled apphcatmns F Appeanng before regulatory agenexes or courts as an expert wxtness ~n any ht~gat~on w~th tbard part, es or eondemnatmn proceedings arising from the development or construction of the Project, including the preperatlon of engineering data and reports for assxstance to the OWNER G Provlthng geotechmcal anvestxgatxons for the s~te, ~ncludxng soft bonngs, related analyses, and recommendations H Preparalaon of right-of-way and easement documents for the project sxte I Obtannng a Clean Water Act Section 404 Pernnt J Submittals to the TNRCC for a water rights permit Page 2 K Payment of submittal and review fees to the Federal Emergency Management Agency (FEMA) L Obtmnmg permits from any other regulatory agency except FEMA ARTICLE IV PERIOD OF SERVICE Tins Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a not,ce to proceed by the OWNER, and shall remmn m force for the period wbaeh may reasonably be required for the completion of the Project, including Addmonal Services, if any, and any required extensions approved by the OWNER This Agreement may be sooner termmated ~n accordance with the prowmons hereof Time is of the essence in thru Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth hereto as expeditiously as possible and to meet the schedule established by the OWNER, acting through its C~ty Manager or his designee ARTICLE V COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" is defined as expenses ~ncurred by the CONSULTANT m employment of others in outrode firms for services m the nature of geotechmcal services 2 "Direct Non-Labor Expense" is defined as that expense for any assignment ~n- curred by the CONSULTANT for supplies, transportation and eqmpment, travel, commumcatlons, subsistence, and lodging away from home, and similar inciden- tal expenses in connection w~th that assignment B BILLING AND PAYMENT For and m consideration of the professional services to be performed by the CONSULTANT herem, the OWNER agrees to pay, based on the cost estimate detml at an hourly rate shown m Exlublt "B" which ~s attached hereto and made a part of tins Agreement as if written word for word herein, a total fee, including reim- bursement for d~rect non-labor expenses not to exceed $50,000 00 Partial payments to the CONSULTANT will be made on the basis of detmled monthly statements rendered to and approved by the OWNER through its City Manager or h~s des~gnec, however, under no elrcnmstances shall any monthly statement for services ex- ceed the value of the work performed at the t~me a statement is rendered The OWNER may w~thhold the final five percent (5%) of the contract amount until completion of the ProJect Nothing eont~uned in th~s Article shall rexlulre the OWNER to pay for any work which ~s tmsatisfaetory, as reasonably determined by the C~ty Manager or h~s designee, or which ~s Page 3 not submitted m compliance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under thts Agreement It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement wluch would require additional pay- ments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authonzatton from the OWNER The CONSULTANT shall not proceed to perform the services listed in Article III "AddltloBal Services," without obtalmng prior written anthonzataon from the OWNER C ADDITIONAL SERVICES For additional services authorized in writing by the OWNER m Article III, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "B" Payments for additional services shall be due and payable upon sublmsslon by the CONSULTANT, and shall be in accordance with subsection B hereof Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for serv- ices and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the stud sixtieth (60th) day, and, in adchtlon, the CON- SULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for servmes, expenses, and charges, provided, however, nothing herein shall reqmre the OWNER to pay the late charge of one percent 0%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation" ARTICLE Vl OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in dlscovenn§ and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULT- ANT or any subcontractors or subconsultants ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furmshed by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement The CON- SULTANT is entitled to retmn copies of all such documents The documents prepared and fur- rushed by the CONSULTANT are intended only to be applicable to this ProJect, and OWNER's use of these documents m other projects shall be at OWNER's sole risk and expense In the Page 4 event the OWNER uses any of the reformation or materials developed pursuant to this Agree- ment m another project or for other purposes than specified hereto, CONSULTANT is released from any and all liability relating to their use m that project INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right arising from employee status INDEMNITY AGREEMENT The CONSULTANT shall mdemmfy and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, clmms, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees re- curred by the OWNER, and including, without hm~tatlon, damages for bodily and personal jury, death and property damage, resulttng from the negligent acts or omissions of the CON- SULTANT or its officers, shareholders, agents, or employees m the execution, operation, or per- formance of ttus Agreement Nothing m this Agreement shall be construed to create a hablhty to any person who is not a party to ttus Agreement, and nottung herein shall wmve any of the parties' defenses, both at law or eqmty, to any clmm, cause of action, or litigation filed by anyone not a party to this Agreement, mcluchng the defense of governmental immunity, which defenses are hereby ex- pressly reserved ARTICLE X INSURANCE Dunng the performance of the services under this Agreement, CONSULTANT shall mmntam the following insurance with an insurance company licensed to do business an the State of Texas, by the State Insurance Commission or any successor agency that has a rating with Best Rate Careers of at least an A- or above A Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with prop- erty damage hmlts of not less than $100,000 for each occurrence and not less than $100,000 an the aggregate B Automobile Liability Insurance with bodily injury hmlts of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage lam- its of not less than $100,000 for each accident Page 5 c Worker's Compensation Insurance in accordance wlth statutory requirements, and Em- ployers' Llabthty Insurance w~th limits of not less than $100,000 for each accident D Professional Llablhty Insurance with limits of not less than $1,000,000 annual aggregate E The CONSULTANT shall furnish insurance certificates or insurance pollcms at the OWNER's request to evidence such coverages The insurance pollmes shall name the OWNER as an additional insured on all such pohcles, and shall contmn a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effeettve date of the change or cancellation, serve substitute pollcms furmshlng the same coverage ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The part,es may agree to settle any disputes under this Agreement by submitting the dis- pute to arbitration or other means of alternate dispute resolution, such as mediation No arbitra- tion or alternate dispute resolution 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 ap- proval ARTICLE XlI TERMINATION OF AGREEMENT A Notw~thstanding any other provmlon of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party B Tins Agreement may be ternunated in whole or in part in the event of either party sub- stantaally failing to fulfill its obhgatlons under this Agreement No such termination will be affected unless the other party is given (1) written notice (delivered by certified mall, return receipt requested) of lntant to terminate and setting forth the reasons specifying the non-performance, and not less than tlurty (30) calendar days to cure the fmlure, and (2) an opportumty for consultation with the termlnatmg party prior to termination C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER wlttun tlurty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satmfactonly performed and for reimbursable expenses to termination incurred prior to the date of ter- mination, m accordance w~th Article V "Compensation" Should the OWNER subse- quently contract with a new consultant for the continuation of services on the ProJect, CONSULTANT shall cooperate m providing information The CONSULTANT shall turn over all documents prepared or furmshed by CONSULTANT pursuant to fins Agreement to the OWNER on or before the date of terrmnation, but may mmntaln copies of such documents for its use Page 6 RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not consUtutc, nor be deemed a release of the responsl- bfl~ty and,habfl~ty of the CONSULTANT, ~ts employees, assocmtes, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work, nor shall such approval be deemed to be an assumpUon of such responsibility by the OWNER for any defect m the design or other work prepared by the CONSULTANT, ~ts employees, subcontractors, agents, and consultants ARTICLE XIV NOTICES All noUces, commumcatlons, and reports required or permitted under th~s Agreement shall be personally dehvered or marled to the respectave part,es by deposmng same m the Umted States mml to the address shown below, certified mall, return receipt requested, unless otherwise specified hereto Mmled noUces shall be deemed communicated as of three (3) days' mmhng To CONSULTANT To OWNER Burt Weathersbee, P E City of Denton Carter & Burgess, Inc Jerry Clark, P E 7950 Elmbrook 215 East McKanney Dallas, Texas 75247 Denton, Texas 76201 All noUces shall be deemed effecUve upon receipt by the party to whom such noUee as gxven, or w~thm three (3) days' moahng ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of ten pages and two exhibits, consUtutes the complete and final express~un of the agreement of the part, es, and ~s intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representataons, negoUatlons, d~scusswns, commumcatlons, and agreements wl~ch may have been made ~n connection w~th the subject matter hereof ARTICLE XVI SEVERABILITY If any prowslon of th~s Agreement is found or deemed by a court of competent junsdlc- t~on to be mvahd or unenforceable, it shall be considered severable from the remainder of th~s Agreement and shall not cause the rem0ander to be mvahd or unenforceable In such event, the parties shall reform th~s Agreement to replace such stricken provision w~th a valid and enforce- able prowslon wlueh comes as close as possible to expressing the ~ntent~on of the stricken prow- slon Page 7 COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regula- tions, and ordmances applicable to the work covered hereunder as they may now read or herem- after be amended DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, rehgmn, sex, national ongm or ancestry, age, or physical handicap PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all person- nel reqmred to perform all the services required under flus Agreement Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER CONSULTANT shall reform the OWNER of any conflict of interest or potential conflict of interest that may arise dunng the term of flus Agreement B All services reqmred hereunder wall be performed by the CONSULTANT or under its supervision All personnel engaged an work shall be quahfied, and shall be authorized and permitted under state and local laws to perform such services ASSIGNABILITY The CONSULTANT shall not assign any interest an flus Agreement, and shall not trans- fer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or llmltaUon herein contained shall be vahd unless in wntmg and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received m evidence in any proceeding ansmg between the parties hereto out of or affectmg this Agreement, or the rights or obhgataons of the parties hereunder, and unless such waiver or modification as in writ- lng and duly executed, and the parties further agree that the provisions of this section will not be waived unless as set forth herein Page 8 MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement Exbablt A - Scope of Services, Exhibit B - Professional Service Rate Structure B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any rectly pertmant books, documents, papers, and records of the CONSULTANT involving transactions relating to flus Agreement CONSULTANT agrees that OWNER shall have access dunng normal workang hours to all necessary CONSULTANT faethtles and shall be provided adequate and appropriate working space in order to conduct audits in eom- phance with this section OWNER shall give CONSULTANT reasonable advance notice of mtended audits C Venue of any suit or cause of action under this Agreement shall lie exclusively m Denton County, Texas This Agreement shall be construed m accordance with the laws of the State of Texas D For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Burr Weathersbee and Alex Martmez However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all appheable dispatch, in a sound, economical, and efficient manner and in accordance with the provxmons hereof In accomphshlng the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with re- lated work being earned on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's dis- posal all avmlable information pertinent to the Project, meludmg previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provi- sions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under th~s Agreement G The captions of this Agreement are for reformational purposes only, and shall not in any way affect the substantive terms or conchtlons of this Agreement IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be exe- cuted by its duly anthonzed City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of , 19 Page 9 CITY OF DENTON, TEXAS TIeD BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY CARTER.~ BURGESS, INC ~T~SS BY Page 10 Exhibit "A" Scope of Services Task No 1 ~ - Prepare topographic survey of lake bottom taking elevations of top of silt and hard bottom on a 100 foot grid Additional elevations will be taken to approximately 200 feet upland of the existing normal pool elevation TaskNo 2 I~Ivdrologm and Hydraulic (H&H~ Analysis - HEC-1 hydrologic model will be prepared for exlstmg and proposed conditions HEC-RAS hydraulic model will be prepared for existing and proposed conditions from the lake upstream to where the elevations converge with the FEMA FIS study This H&H analysis will establish design erlterm of storage volume reqmred, nomaal pool elevation and spillway structure for up to two (2) lake configurauons Exhibits will be prepared to illustrate drainage area map, ex~stlng floodplmn and proposed floodplain mound the lake Task No 3 pr?llmInary design - Spillway and dam design and grading plan will be developed Carter & Burgess will assist the City in coordinating with adjacent property owners in estabhshmg acceptable design parameters with regard to size and shape of lake A prehmmary eremite of probable cost will be prepared Task No 4 Final Design - Upon City approval ofprehminary design, construction documents will be prepared This will consist of plans, specifications and estimate of probable cost Included in the plans will be · Cover sheet · Quantity sheet · Dredging/grading plan sheet · Spillway plan and elevation sheet · Detail sheet Task No 5 Letter of Map Revision CLOMR~ - After lake construction has been completed, Carter & Burgess will submit documentation to the Federal Emergency Management Agency (FEMA) ~n support of a LOMR for the lake and upstream creek The LOMR subnuttal will include the lake construction and projects that have occurred upstream of the lake Carter & Burgess will rely on reformation developed by engineers and landowners of upstream properties to be ~ncluded in the LOMR submittal No cross sections will be taken of the upstream creek areas 98320008LAC Task No 6 Qeotechmeal Invest~gataon - Carter & Burgess wtll subcontract the services of a competent geoteehmcal engineering and testing firm to perform geoteehmcal mvestagataon of the proposed spallway and dam area The purpose oftlus task will be to obtain geoteehmcal parameters for design of the spillway and dam embankment No contamination analysis wall be performed as a part of th~s task Task No 7 Coordination With Umverslty of North Texas - Carter & Burgess w~ll provide a wetlands expert to coordinate with staff from the Umverslty of North Texas m deslgmng wetland and water quahty features into the Umcom Lake construction The design of the wetland and water quahty features are to be accomphshed by staff from the Umverslty of North Texas The extent of Carter & Burgess' involvement on this task wll be to provide oversight and gmdance in the sizing, Rtnctlon and features of such a wetland area After the design has been prepared and agreed upon with the City and North Texas, Carter & Burgess wall add the wetland feature(s) to the construction plans Fee Task No 1 - Topographic Survey Lump Sum $8,100 00 Task No 2 - H&H Analys~s Lump Sum $9,400 00 Task No 3 - Preliminary Design Lump Sum $10,500 00 Task No 4 - Final Design Lump Sum $10,600 00 Task No 5 - LOMR Preparation Lump Sum $5,400 00 Task No 6 - Geotechmcal Investigation Lump Sum $6,000 00 Task No 7 - Coordination wath Umverslty of North Texas T~me and Materials $3.500.00 TOTAL $53,500 O0 The above fees are for work described in the scope of servaces Any other services or major change m scope of work, such as preparation of right of way or easement documents, obtaining Clean Water Act Sect~0n 404 permit from the U S Army Corps of Engineers, submattals to the TNRCC for water rights permits, or any other permits or submattals to regulatory agencaes, wall be considered addlttonal servaces and additional compensatton shall be negotiated at the time those servaces are requested In some instances, fees for LOMR rewew by FEMA can be waived for public projects Thas scope of services does not include payment of submittal revaew fees to regulatory agencaes g8320008LAC EXHIBIT "B" PROFESSIONAL SERVICES RATE STRUCTURE Prtnclpal $100 00/hour to $150 00/hour ProJect Manager $80 00/hour to $100 00/hour Project Engineer $65 00/hour to $90 00/hour Office Surveyor $50 00/hour to $60 00/hour Registered Surveyor $72 00/hour to $105 00/hour Technician $45 00/hour to $75 00/hour Field Party (3 man) $95 00/hour to $100 00/hour Field Party (2 man) $70 00/hour to $80 00/hour 98320008LAC ~ /,_/· o