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1998-221 O IN CENO AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFES- SIONAL SERVICES AGREEMENT WITH CARTER & BURGESS, INC FOR DESIGN OF EAGLE DRIVE AND COLLINS STREET DRAINAGE IMPROVEMENTS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the City Manager is hereby authorized to execute a Professional Services Agreement with Carter & Burgess, Inc for professional engmeenng services for design of Eagle Dnve and Collins Street drmnage improvements, in substantially the form of the Agreement attached hereto and incorporated herein by reference SECTION II. That the expenditure of funds as provided in the attached Agreement is hereby anthonzed SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the/./~ t~.rt day of~, 1998 J~__~ILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY PROFESSIONAL SERVICES AGREEMENT FOR DESIGN OF EAGLE DRIVE AND COLLINS STREET DRAINAGE IMPROVEMENTS STATE OF TEXAS § COUNTY OF DENTON § ., THIS AGREEME. NT is made and entered into as of the ~ day of ~ 19 ~ , by and between the City of Denton, Texas, a Texas mumclpal corporgtlon, with its principal office at 215 East McKlnney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Carter and Burgess, Inc, with its corporate office at 7950 Elmbrook, Dallas, Texas, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representataves WITNESSETH, that in consideration of the covenants and agreements herein contmned, the parties hereto do mutually agree as follows EMPLOYMENT OF CONSULTANT The OWNER hereby contracts w~th the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection w~th the ProJect as stated in the sections to follow, w~th diligence and in accordance with the highest professional standards, customarily obtmned for such services in the State of Texas The professional services set out herem are in connection w~th the following described project The ProJect shall include, without hnntat~on, construction documents for drmnage system along Maple between Locust and Myrtle, along Myrtle between Eagle Drive and Maple, along Eagle Drive between Myrtle and just west of Cleveland Along Cleveland between Eagle Drive and Collins Street, along Collins Street between Cleveland and Bemard to outfall of the detention Pond on the east side of the Arbors Apartments SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner To perform all those services set forth in CONSULTANT's exhibits which is attached hereto and made a part hereof as Extublt "A" as if wntten word for word herein 97233300 DENTON2 DOC ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, ff authorized by thc OWNER, which arelnot included an the above-described Basic Services, are described as follows A D~mng the course of the ProJect, as requested by OWNER, the CONSULTANT will be aVmlable to accompany OWNER's personnel when meetxng w~th the Texas Natural R~source Conservatton Commlssxon, U S Environmental Protectxon Agency, or other regulatory agancles The CONSULTANT will assxst OWNER's personnel on an as-needed basxs m prepanng compliance schedules, progress reports, and prowdmg general techmcal support for the OWNER's comphance efforts B Assxstmg OWNER or contractor m the defense or prosecution of htlgat~on ~n connectaon with or m addition to those servxces contemplated by tbas Agreement Such servmes, xf any, sllall be furmshed by CONSULTANT on a fee basis negotmted by the respective parties outside of and ~n addition to thts Agreement C Samphng, testing, or analys~s beyond that specffically included ~n Basic Services D Preparing copies of computer reded drafting (CAD) electromc data bases, drawings, or files for the OWNER's use ~n a future CAD system E P~epanng appheat~ons and supporting documents for govemmant grants, loans, or planmng advances and provadang data for detmled apphcat~ons F Appeanng before regulatory aganc~es or courts as an expert witness ~n any btlgatlon w~th ttgrd partaes or condeumat~on proceedings arising from the development or construction of the ProJect, including the preparataon of englneenng data and reports for assistance to the OWNER G P~ovtdmg geotechmcal investigations for the s~te, ancludmg sod borings, related analyses, and reeommendattons PERIOD OF SERVICE Th~s Agreement shall become effective upon executmn of thas Agreement by the OWNER and the CONSULTANT and upon issue ora not~ce to proceed by the OWNER, and shall remmn m force for the period whtch may reasonably be reqmred for the completion of the ProJect, mcludang Add~tmnal Services, if any, and any reqmred extensions approved by the OWNER Tlus Agreement may be sooner terminated m accordance w~th the provisions hereof T~me ~s of the essence art tlus Agreement The CONSULTANT shall make all reasonable efforts to complete the 97233300 Page 2 services set forth herem as expechtlously as possible and to meet the schedule established by the OWNER, aetmg through ~ts City Manager or his designee COMPENSATION COMPENSATION TERMS 1 "D~rect Non-Labor Expense" ~s defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and eqmpment, travel, commumcatlons, subsistence, and lodging away from home, and s~nular ~nc~dental expenses m counectaon w~th that assignment BILLING AND PAYMENT For and m consideration of the professional services to be performed by the CONSULTANT hare~n, the OWNER agrees to pay, based on the Imp sum shown ~n Exbab~t "A which ~s attached hereto and made a part of tlus Agreement as ff written word for word hereto, a total fee, including reimbursement for dtrect non-labor expenses not to exceed $89,742 00 Parttal payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through ~ts C~ty Manager or h~s designee, however, under no c~rcumstances shall any monthly statement for servmes exceed the value of the work performed at the tune a statement ~s rendered The OWNER may wtthhold the final five percent (5%) of the contract mount until completion of the Project NOtlmng contmned ~n tlus Article shall reqmre the OWNER to pay for any work which is unsatisfactory, as reasonably determmed by the C~ty Manager or h~s designee, or whmh is not stlbm~tted m comphance with the terms of tlus Agreement The OWNER shall not be reqmred to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement It, ~s specffically understood and agreed that the CONSULTANT shall not be authorized to tU~hedertake any work pursuant to th~s Agreement wtuch would reqmre additional payments by OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, w~thout first havmg obtamed written authorization from the OWNER The CONSULTANT shall not proceed to perform the services listed in Amcle III "Additional Services," wathout obtmmng prior written authorization from the OWNER ADDITIONAL SERVICES For adcht~onal services authorized ~n writing by the OWNER m Article III, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly r~te shown m Exhab~t "B" Payments for addatlonal services shall be due and payable upon subnuss~on by the CONSULTANT, and shall be ~n accordance w~th subsection B hereof Statements shall not be submitted more frequently than monthly 97233300 Page 3 A PAYMENT If the OWNER falls to make payments due the CONSULTANT for servaces and expenses watban saxty (60) days after receapt of the CONSULTANT's undisputed statement thereof, the mounts due the CONSULTANT will be ancreased by the rate of one percent (1%) per month from the said saxtleth (60th) day, and, ~n addition, the CONSULTANT may, after g~vmg seven (7) days' written notme to the OWNER, suspend servmes under thts Agreement untal the CONSULTANT has been paid ~n full all amounts due for servmes, expenses, and charges, provided, however, notlung hereto shall reqmre the OWNER to pay the late charge of one percent (1%) set forth here~n if the OWNER reasonably determines that the work ~s unsatasfactory, in accordance w~th thas Artacle V, "Compensataon" OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercase reasonable care and due dd~gence m d~scovenng and promptly reporting to the OWNER any defects or defimenmes m the work of the CONSULTANT or any subcontractors or subconsultants OWNERSHIP OF DOCUMENTS All documents prepared or furmshed by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to flus Agreement are ~nstmments of servme, and shall become the property of the OWNER upon the termanatlon of this Agreement The CONSULTANT ~s entatled to retain copies of all such documents The documents prepared and furnished by the CONSULTANT are antended only to be apphcable to th~s ProJect, and OWNER's use of these documents an other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the mformataon or materials developed pursuant to this Agreement ~n another project or for other purposes than specified hereto, CONSULTANT is released from any and all hablhty relating to their use ~n that project INDEPENDENT CONTRACTOR CONSULTANT shall provade servaces to OWNER as an ~ndependent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right arising from employee status 97233300 Page 4 INDEMNITY AGREEMENT Thc CONSULTANT shall ~ndemmfy and save and hold harmless the OWNER and ~ts officers, agents, and employees from and against any and all habthty, clmms, demands, damages, losses, and expenses, including, but not hm~ted to court costs and reasonable attorney fees recurred by the OWNER, and including, w~thout hm~tat~on, damages for bodily and personal injury, death and property damage, resulting from the neghgent acts or om~sslons of the CONSULTANT or ~ts officers, shareholders, agents, or employees in the execution, operation, or performance of th~s Agreement NOtbang ~n th~s Agreement shall be construed to create a habthty to any person who Is not a party to tbas Agreement, and notbang hereto shall wmve any of the parties' defenses, both at law or equity, to any elatm, cause of action, or htlgat~on filed by anyone not a party to this Agreement, including the defense of governmental mamumty, which defenses are hereby expressly reserved INSURANCE Dunng the performance of the services under tbas Agreement, CONSULTANT shall mmntam the following insurance w~th an insurance company hcensed to do business in the State of Texas by the State Insurance Commlss~on or any successor agency that has a rating w~th Best Rate Careers of at least an A- or above Comprehensive Genera]. L~abihty Insurance w~th bodily injury hmlts of not less than $500,000 for each occurrence and not less than $500,000 m the aggregate, and w~th property damage hm~ts of not less than $100,000 for each occurrence and not less than $100,000 m the aggregate Automobile Lmbfl~ty Insurance vnth bodily injury hm~ts of not less than $500,000 for each person and not less than $500,000 for each accident, and w~th property damage hm~ts of not less than $100,0001 for each accident Worker's Compensa~aon Insurance m accordance v~th statutory requirements, and Employers' Ltabthty Insurance w~th hm~ts of not less than $100,000 for each accident Professional Lmbthty Insurance vnth hm~ts of not less than $1,000,000 annual aggregate The CONSULTANT shall furmsh insurance certificates or insurance pohc~es at the OWNER's request tO ewdence such coverages The insurance pohc~es shall name the OWNER as an addmonal ~nsured on all such pohcles, and shall contmn a provision that such insurance shall not be canceled or mod~fied~ w~thout thu-ty (30) days' prior written not~ce to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substttute policies furmsbang the same coverage 97233300 Page 5 ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under flus Agreement by submitting the &spute to arbitration or other means of alternate chspute resolution, such as mechatlon 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 w~thout the other's approval TERMINATION OF AGREEMENT Notwlthstanchng any other provision of flus Agreement, either party may terrmnate by giving thirty (30), days' advance written notice to the other party Tlus Agreement may be terminated in whole or in part in the event of either party substantially fmhng to fulfill its obhgat~ons under flus Agreement No such termination will be affected unless the other party is given (1) written noUce (delivered by certified mall, return receipt requested) of intent to terminate ,and settang forth the reasons specifying the non-performance, and not less than thlrty (30) calendar days to cure the failure, and (2) an oppormmty for consultataon with the terminating party prior to termination If the Agreement is terminated prior to completaon of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER wathm thirty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termmataon incurred prior to the date of termination, in accordance with Article V "Compensation" Should the OWNER subsequently cuntxact wth a new consultant for the contanuatlon of services on the ProJect, CONSULTANT shall cooperate in provldang information The CONSULTANT shall turn over all documents prepared or furmshed by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termmataon, but may maintain copies of such documents for its use RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work, nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants 97233300 Page 6 NOTICES All notices, commumcatlons, and reports reqmred or penmtted under flus Agreement shall be personally delivered or mtuled to the respective parties by depositing same in the United States mml to the address shown below, cemfied mml, return receipt requested, unless otherwise specified herein Mmled notices shall be deemed commumcated as of three (3) days' mmhng To CONSULTANT To OWNER Carter & Burgess, Inc City of Denton Alex Martmez, P E Jerry Clark, P E ProJect Manager Director of Engineering and 7950 Elmbrook Dr Transportation Dept Dallas, Texas 75247-4951 City Hall West 221 N Elm Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mmhng ENTIRE AGREEMENT This Agreement, consisting of 10 pages and 2 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, commumcattons, and agreements whmh may have been made in connection with the subject matter hereof 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 ~:ause the remainder to be invalid or unenforceable In such event, the parties shall reform this Agreement to replace such smcken provision with a valid and enforceable provision wbach comes as close as possible to expressing the intention of the stricken provision 97233300 Page 7 COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended DISCRIMINATION PROHIBITED In performing the services requared hereunder, the CONSULTANT shall not dxscnmmate agasnst any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap PERSONNEL A The CONSULTANT represents that it has or will secure, at ItS own expense, all personnel reqmred to perform all the services requtred under th~s Agreement Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER CONSULTANT shall ~nform the OWNER of any conflict of interest or potential conflict of interest that may arise dunng the term of flus Agreement B All services reqtured hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged ~n work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services ASSIGNABILITY The CONSULTANT shall not assign any interest ~n flus Agreement, and shall not transfer any interest 111 this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER MODIFICATION No waiver or modification of flus Agreement or of any covenant, condition, or hmltatlon herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any wmver or modification shall be offered or received an evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the part,es hereunder, and unless such wmver or modification is in wnung and duly executed, and the parties further agree that the provisions &flus section will not be waived unless as set forth herein 97233300 Page 8 MISCELLANEOUS A The following extub~ts are attached to and made a part of htus Agreement Exhibit A - Eagle Drive / Colhns Street Plan Preparation for Drainage Improvements Scope of Work and Compensation Ext~blt B - Professional Services Rate Sa'ucture 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 &reetly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to th~s Agreement CONSULTANT agrees that OWNER shall have access dunng normal worlang hours to all necessary CONSULTANT facilities and shall be provided adequate and approprmte working space in order to conduct audits in compliance w~th this section OWNER shall give CONSULTANT reasonable advance not~ce of intended audits C Venue of any suit or cause of action under th~s Agreement shall he exclusively in Denton County, Texas This Agreement shall be construed in accord~mce 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 from the Carter & Burgess Dallas office However, nothing here~n shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required hereto E CONSULTANT shall commence, carry on, and complete any and all projects with all apphcable d~spateh, m a sound, economical, and efficient manner and in accordance w~th the prows~ons hereof In accomphsbang the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work revolved Is properly coordinated w~th related work being earned on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, maludlng previous reports, any other data relative to the Pro.~eet, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon pubhc and private property as reqtured for the CONSULTANT to perform services under this Agreement The captions of tbas Agreement are for ~nformational purposes only, and shall not In any way affect the substanUve terms or conditions of tbas Agreement 97233300 Page 9 ~ ~SS HE.OF, ~e C1W of Denton, Texas Ms caused t~s Agreement to be executed by its duly an~onzed Cx~ Manager, and CONSULTANT has executed ~s A~eement ~o. ugh ~ts d~y au~0nzed ~demgned officer on ~s ~e 4~--~ day of ,192 CITY OF DENTON, TE~S TED BENAVIDES, CITY MANAGER ATTEST JE~IFER WALTERS, CITY SEC~TARY HE~ERT L PROUTY, CITY ATTO~EY CONSULT~ PHIL DEATON, P E, SR VICE P~SIDENT WITNESS ALEX~V]AI~~ 97233300 Page 10 EXHIBIT A EAGLE DRIVE / COLLINS STREET PLAN PREPARATION FOR DRAINAGE IMPROVEMENTS SCOPE OF WORK AND COMPENSATION SCOPE A Design Survey Perform design survey along proposed alignment of storm sewer along Maple Street, Myrtle Street, Cleveland Street and Collins Street Design survey includes se~ng project control, locating horizontal and vertical locat~on of wslble ,mprovements such as curbs, gutters, driveways, utility manholes, ~nlets, valves, meters, trees 6" cahpers and larger, s~dewalks, power poles, light poles, traffic s~gnals, and sufficient property comers to construct a best fit ROW for das~gn purposes B Base Mapping Prepare base map at l-tach equals 20 feet scale using the destgn survey data C Prehm~nary Design Refine drainage are map, inlet s~zmg and nmoffcalculat~ons trom prewous study Develop horizontal and verttcal layout for proposed storm sewer system with the downstream outfall located at Locust and concrete hned channel, tributary of Stream PEC- 4 The storm sewer system will be located along Maple between Locust and Myrtle, along Myrtle between Eagle Drive and Maple, along Eagle Drive between Myrtle and just west of Cleveland, along Cleveland between Eagle Drive and Colhns Street along Colhns Street between Cleveland and Bernard to the outfall of the detention pond on the east side of the Arbors Apartments A map is attached at the end ofth~s Exhibit showing proposed storm sewer system D Final Design Prepare Documents Statable for bxddlng to include 1 Cover Sheet 2 General Notes & Quant~taes 3 Drainage Area Map & Calculations 4 Storm Sewer Plan & Profiles 5 Detmls 6 Suggested Sequence of Work and Traffic Control Plan 7 Specfficatlons 97233300 C02 E R~cord Drawings 1 Prepare record drawings using contractor's mark-ups on changes to construction drawings during construction F Deliverables 1 Prehmmary Design - 2 sets of bluehnes 2 Construction Documents - I set of mylars and 1 set of original spemficatlons 3 Record Drawangs - 1 set ofmylars Lump Sum Fee $89,742 00 A Design Survey 1 5 weeks B Base,Mapping 1 0 weeks C Prehmmary Design 4 0 weeks D Final Design 6 0 weeks TOTAL 12 5 weeks Above schedule ~s exclusive of C~ty Rewew t~me 97233300 C02 EXHIBIT "B" PROFESSIONAL SERVICES RATE STRUCTURE Pnnc~pal $100 00/hotuc 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 Techmcmn $45 00/hour to $75 00/hour F~eld Party (3 man) $95 00/hour to $100 00/hour Fxeld Party (2 man) $70 00/hour to $80 00/hour