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1997-362AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES CONrRACT BETWEEN THE CITY OF DENTON AND CARTER AND BURGESS FOR THE DESIGN OF THE DRAINAGE FOR PHASE I EAGLE DRIVE IN THE AMOUNT OF $38,700 (RFSP #2110A - EAGLE DRIVE PHASE I PROJECT), AND PROVIDING AN EFFECTIVE DATE WHEREAS, Chapter 2254 of the Texa~ Government Code, known as the Professional Services Procurement Act, provides that a City many not select a promder of professional serwces on the basis of competitive bids but on the basis of demonstrated competence and qualification and for a fau: and reasonable pnce, WHEREAS, the professional fees under the proposed contract are consistent with and not higher than the recommended practices and fees pubhshed by the applicable professional association and do not exceed a maximum provided by law, and WHEREAS, the City Council has provided m the City Budget for the appropriation of funds to be used for the purchase of the serwces set forth m the proposed contract, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the City Manager is hereby authorized to execute on behalf of the City of Denton, Texas, as professional services contract, substantially the same as the contract which ls attached hereto and made a part hereof for all purposed, that provides services relating to Engmeenng Semces, as defined m Request for Sealed Proposal #2110A Eagle Drive Phase I ProJect, with Carter and Burgess m the amount of $38,700 00 ~ That the award of th~s contract Is one the basis of demonstrated competence and qualifications of the provided of professional sennces under this contract and the ability of such provider to perform the needed services for a fair and reasonable price SECTION III. That th~s ordInance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the J~I~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 PAVING AND DRAINAGE IMPROVEMENTS PHASE I STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the //~'fJ'~ day of ~_~t4~/]7~fJf , 19 ~'7 , by and between the C~ty of Denton, Texas, a Texas mumc~pal corporatron, wath ~ts pnnc~pal office at 215 East McI~hnney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Carter and Burgess, Inc, wath ~ts corporate office at 7950 Elmbrook, Dallas, Texas, hereinafter called "CONSULTANT," acting hereto, by and through their duly authorized representatives WITNESSETH, that ~n cons~deratron of the covenants and agreements hereto contmned, the parties hereto do mutually agree as follows EMPLOYMENT OF CONSULTANT The OWNER hereby contracts wath the CONSULTANT, as an ~ndependent contractor, and the CONSULTANT hereby agrees to perform the services here~n m connectxon wath the Project as stated m the sections to follow, with thhgence and in accordance wath the highest professional standards customarily obtained for such servmes in the State of Texas The professional servxces set out hereto are m connection wath the following described project The ProJect shall include, wathout lln~tat~on, drmnage analys~s for dnunage system along Eagle Drive from Avenue A and on downstream from ~ts outfall along concrete hne channel to ~ts confluence wath Stream PEC-4, Drmnage on Colhns Street from Welch to US 377 wall also be included, Traffic Analys~s for the ~ntersect~ons of Colhns Street at US 377, Bernard Street and Welsh Street SCOPE OF SERVICES The CONSULTANT shall perform the following services ~n a professional manner To perform all those services set forth ~n CONSULTANT's extub~ts which xs attached hereto and made a part hereof as Exhibit "A" and "B" as ~f written word for word herem 97233300 ADDITIONAL SERVICES Addat~onal servmes to be performed by the CONSULTANT, ~f authorized by the OWNER, whmh are not aneluded m the above-described Basae Services, are described as follows A During the course of the ProJect, as requested by OWNER, the CONSULTANT will be available to accompany OWNER's personnel when meeting wath the Texas Natural Resource Conservation Commasston, U S Enwronmental Protection Agency, or other regulatory agencaes The CONSULTANT will assast OWNER's personnel on an as-needed basis in preparing comphance schedules, progress reports, and prowdmg general techmcal support for the OWNER's eomphanee efforts B Assastmg OWNER or contractor m the defense or prosecution of htlgatton in connection wath or m addataon to those servmes contemplated by thas Agreement Such services, af any, shall be furmshed by CONSULTANT on a fee basis negotmted by the respective partaes outsade of and m addat~on to fins Agreement C Sampling, testing, or analys~s beyond that specifically ~ncluded ~n Basic Services D Preparing copaes of computer reded draftang (CAD) electromc data bases, drawings, or files for the OWNER's use an a future CAD system E Prepanng apphcat~ous and supporting documents for government grants, loans, or planmng advances and prowdmg data for detmled apphcataons F Appeanng before regulatory agancaes or courts as an expert witness an any htlgataon w~th thud pames or eondenmataon proceedings arising from the development or constructaon of the Project, including the preparation of engmeenng data and reports for assistance to the OWNER G Provadmg geotechracal mvemgataous for the sate, ~nclud~ng soft bonngs, related analyses, and recommendations PERIOD OF SERVICE Tlus Agreement shall become effective upon execution of thas Agreement by the OWNER and the CONSULTANT and upon xssue of a notate to proceed by the OWNER, and shall remmn in force for the period wbach may reasonably be reqmred for the completion of the Project, ancludmg Addataonal Servaces, af any, and any reqmred extensaons approved by the OWNER This Agreement may be sooner tenmnated an accordance w~th the prowslons hereof Tame ts of the essence m flus Agreement The CONSULTANT shall make all reasonable efforts to complete the 97233300 Page 2 services set forth hereto as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee COMPENSATION A COMPENSATION TERMS 1 "D~rect Non-Labor Expense" ~s defined as that expense for any ass~gmnent incurred by the CONSULTANT for supphes, transpormtmn and eqmpment, travel, commumcat~ons, subsistence, and lodging away from home, and similar incidental expenses ~n counectlon wtth that assignment B BILLING AND PAYMENT For and m consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the lump sums shown m Exbablt "A & B" which ~s attached hereto and made a part of flus Agreement as if written word for word hereto, a total fee, mcluding reimbursement for d~rect non-labor expenses not to exceed $38,700 00 Partial payments to the CONSULTANT vall be made on the bas~s of detmled monthly statements rendered to and approved by the OWNER through its City Manager or bas designee, however, under no e~rcumstanees shall any monthly statement for services exceed 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 Noflung contmned m flus Artmle shall reqmre the OWNER to pay for any work wbach ~s unsatisfactory, as reasonably determined by the City Manager or bas designee, or wbach ~s not submitted m comphance with the terms of tbas Agreement The OWNER shall not be reqmred to make any payments to the CONSULTANT when the CONSULTANT is in default under tbas Agreement It ~s specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to flus Agreement wbach would reqmre addmonal payments by the OWNER for any charge, expense, or reambursement above the maximum not to exceed fee as stated, without first having obtmned written authorization from the OWNER The CONSULTANT shall not proceed to perform the services hsted in Article III "Addmonal Services," wathout obtalmng prior written authorization from the OWNER A ADDITIONAL SERVICES For additional services authorized ~n writing by the OWNER ~n Artacle III, the CONSULTANT shall be prod based on the Schedule of Charges at an hourly rate shown m Exhthlt "C" Payments for additional services shall be due and payable upon subnusslon by the CONSULTANT, and shall be ~n accordance w~th subsection B horeof Statements shall not be submitted more frequently than monthly 97233300 Page 3 A PAYMENT If the OWNER ftuls to make payments due the CONSULTANT for services and expenses wathln sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said sixtieth (60th) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written not,ce to the OWNER, suspend services under flus Agreement until the CONSULTANT has been prod in full all amounts due for sermces, expenses, and charges, provided, however, nofinng herein shall reqmre the OWNER to pay the late charge of one pement (1%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance wath th~s Article V, "Compensation" OBSERVATION AND REVIEW OF THE WORK The CONSULTANT wall exercise reasonable care and due diligence in dlscovenng and promptly reporting to the OWNER any defects or deficiencies in 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 instruments of service, and shall become the property of the OWNER upon the termination of fins Agreement The CONSULTANT is entitled to retmn copies of all such documents The documents prepared and furnished by the CONSULTANT are intended only to be applicable to fins 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 flus Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or cltum any right arising from employee status 97233300 Page 4 INDEMNITY AGREEMENT The CONSULTANT shall lndemmfy and save and hold harmless the OWNER and 1ts officers, agents, and employees from and against any and all liability, claxms, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, w~thout hmltatlon, damages for bodily and personal injury, death and property damage, resultang from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees m the execution, operation, or performance of th~s Agreement Notinng ~n flus Agreement shall be construed to create a liability to any person who is not a party to flus Agreement, and noflung herein shall wmve any of the part~es' defenses, both at law or eqmty, to any clmm, cause of action, or ht~gat~on filed by anyone not a party to this Agreement, including the defense of governmental munumty, winch defenses are hereby expressly reserved INSURANCE Dunng the performance of the services under flus Agreement, CONSULTANT shall mmntmn the following insurance w~th an insurance company licensed to do business m the State of Texas by the State Insurance Commlssmn or any successor agency that has a rating w~th Best Rate Careers of at least an A- or above 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 w~th property damage hnuts of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate Automobile Lminhty Insurance w~th bodily injury hm~ts 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 acmdent Worker's Compensatton Insurance in accordance vath statutory reqmrements, and Employers' Liability Insurance with lumts of not less than $100,000 for each accident Profass~onal Liability Insurance with ltmlts of not less than $1,000,000 annual aggregate The CONSULTANT shall furmsh insurance cemficates or insurance policies at the OWNER's request to evidence such coverages The insurance policies shall name the OWNER as an additional insured on all such pohmes, and shall contmn a provis~on that such insurance shall not be canceled or modified w~thout flurry (30) days' prior written nonce to OWNER and 97233300 Page 5 CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellataon, serve substitute policies furmshlng the same coverage ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbltrataon or other means of alternate dispute resolution, such as mediation No arbitration or alternate dispute resolution arising out of or relating to flus Agreement, involving one party's dasagreement, may include the other party to the dasagreement without the other's approval TERMINATION OF AGREEMENT Notwathstandmg any other provision of flus Agreement, e~ther party may terminate by giving tlurty (30) days' advance written notme to the other party This Agreement may be terminated an whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement No such termination will be affected unless the other party is given (1) written notice (delivered by cemfied marl, return receipt requested) of intent to terminate and se~ng forth the reasons specifying the non-performance, and not less than tturty (30) calendar days to cure the fmlure, and (2) an oppormmty for consultation w~th the terminating party prior to termination If the Agreement is terminated pnor to completion of the services to be provided hereunder, CONSULTANT shall anmedlately cease all services and shall render a final bill for services to the OWNER wahan tlurty (30) days after the date of termlnaUon The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for retmbursable expenses to termination incurred prior to the date of termmataon, tn accordance w~th Artacle V "Compensataon" Should the OWNER subsequently contract with a new consultant for the continuation of services on the ProJect, CONSULTANT shall cooperate m provldtng information The CONSULTANT shall mm over all documents prepared or fumtshed by CONSULTANT pursuant to flus Agreement to the OWNER on or before the date of termination, 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 thetr designs or other work, nor shall such approval be deemed to be an assumptton of such responstbfllty by the OWNER for any defect in 97233300 Page 6 the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants NOTICES All notices, eommumcatlons, and reports reqmred or permitted under ttus Agreement shall be personally dehvered or totaled to the respective part,es by depos~ttng same m the Umted States mall to the address shown below, certified mini, return receipt requested, unless othervase specified hereto Mmled not~ees shall be deemed commumcated as of three (3) days' mathng To CONSULTANT To OWNER Carter & Burgess, Inc C~ty of Denton Alex Martmez, P E Jerry Clark, P E Project Manager D~rector of Eng~neenng and 7950 Elmbrook Dr Transportation Dept Dallas, Texas 75247-4951 C~ty Hall West 221 N Elm Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such not,ce ~s given, or w~ttun three (3) days' mmhng ENTIRE AGREEMENT This Agreement, consisting of 10 pages and 3 ex}nblts, constitutes the complete and final expression of the agreement of the partaes, and ~s intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negottattons, chscussmns, communications, and agreements which may have been made in c0nnectaon w~th the subject matter hereof SEVERABILITY If any prowslon of ttus Agreement ~s found or deemed by a court of competent junsdmt~on to be ~nvalld or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remamdar to be ~nval~d or unenforceable In such event, the pames shall reform tbas Agreement to replace such smcken provision vath a valid and enforceable provision whmh comes as close as possible to expressing the ~ntent~on of the stricken prows~on 97233300 Page 7 COMPLIANCE WITH LAWS The CONSULTANT shall comply w~th 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 required hereunder, the CONSULTANT shall not discriminate agmnst 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 required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, or have any contractual relattons w~th the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise dunng the term of flus Agreement B All serwces reqmred hereunder v~ll 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 in flus Agreement, and shall not transfer any interest m flus Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the OWNER MODIFICATION No wmver or modification of th~s Agreement or of any covenant, condition, or hmltat~on herein contmned shall be valid unless m writing and duly executed by the party to be charged therewith, and no e~denee of any wmver or modification shall be offered or received m evidence in any proceeding arising between the pames hereto out of or affecting this Agreement, or the rights or obhgataons of the parties hereunder, and unless such wmver or modification is m writing and 97233300 Page 8 duly executed, and the part,es further agree that the provisions of tins section will not be waived unless as set forth hereto MISCELLANEOUS A The following ex~b~ts are attached to and made a part of tl~s Agreement Exhth:t A - Eagle Drive / Colhns Street Phase I - Drmnage Analysis Scope of Work and Compensation Exhflut B - Collins Street Phase I - Traffic Analysis Scope o£Work and Compensation Exhthlt C - Professional Services Rate Structure B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under ttus Agreement, have access to and the right to examine any dtrectly pe~nent books, documents, papers, and records of the CONSULTANT lnvolwng transactions relatmg to flus Agreement CONSULTANT agrees that OWNER shall have access dunng normal worlang hours to all necessary CONSULTANT facdmes and shall be provided adequate and appropriate working space in order to conduct audats m compliance with tins section OWNER shall g~ve CONSULTANT reasonable advance notice of intended audits C Venue of any stat or cause of action under tlus Agreement shall lie exclusively ~n Denton County, Texas Tbas Agreement shall be construed in accordance with the laws of the State of Texas D For the purpose of flus Agreement, the key persons who will perform most of the work hereunder shall be fzom the Carter & Burgess Dallas office However, nothing hereto shall hmlt CONSULTANT from using other qualified and competent members of its firm to perform the services reqmred here~n E CONSULTANT shall commence, carry on, and complete any and all projects with all applmable chspatch, ~n a sound, economical, and efficient manner and in accordance w~th the provisions hereof In accomphsbang the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved ~s properly coordinated with related work being camed on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's thsposal all avmlable information pertinent to the Project, including prewous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter m or upon public and private property as required for the CONSULTANT to perform services under flus Agreement 97233300 Page 9 G The captions of flus Agreement are for mformat~onal purposes only, and shall not ~n any way affect the substantive terms or conditions of th~s Agreement 1N WITNESS HEREOF, the C~ty of Denton, Texas has caused th~s Agreement to be executed by ~ts duly authorized C~ty Manager, and CONSULTp21~T has execute,~t~ ~s ~A~ee?ent lth~o2)~ ats duly authorized undersigned officer on th~s the [~t~ day of ~/g_Z~l/~5~r , CITY OF DENTON, TEXAS IrED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY // CONSULTANT CARTE?/~~~_..~BURGESS, INC PHIL DEATON, SR VICE PRESIDENT WITNESS 97233300 Page 10 EXHIBIT A EAGLE DRIVE / COLLINS STREET PHASE I - DRAINAGE ANALYSIS SCOPE OF WORK AND COMPENSATION SCOPE. A Perform ex~st~ng hydrologic analys~s for the watershed contributing stormwater runoff to the tributary of PEC-4 Stream B Conceptualize proposed storm sewer for 1 Eagle Drive from Ave A to outfall at the tnbutary 2 Colhns street from Welch Street to US377 and ~nclud~ng lateral runs to the Eagle Drive system along Bernard Street and Cleveland Street C~ty topographic base maps w~ll be used to schematically layout storm sewer ahgnment and prehmmary p~pe s~zes w~ll be shown C Perform hydrauhc backwater analys~s for subject tributary Th~s would include estabhsh~ng 1 Ex~st~ng conditions water surface elevabons (WSEL) from the tnbutanes' confluence w~th stream PEC-4 upstream to Eagle Drive, 2 Rewse ex~st~ng conditions WSEL by updating the starting WSEL at the confluence w~th PEC-4 Downstream channel ~mprovements and culvert ~mprovements at Robertson/Bell street crossing are being designed by other firms Their design w~ll determine th~s project's starbng WSEL The revised ex~st~ng conditions backwater analyms w~ll be performed after the downstream projects flnahze their WSEL's If the downstream projects change the WSEL's after the rewsed ex~sbng cond~bons analys~s have been performed and add~bonal rews~ons are required, those rews~ons w~ll be considered additional services, 3 Up to two (2) proposed conditions alternabves evaluabng ~mpact and location of outfall of proposed storm sewer for Eagle Drive and Colhns Street One alternative w~ll have the outfall just east of Myrtle Street and just north of the Eagle Dnve R O W The other alternabve w~ll have the storm sewer routed along Myrtle Street and Maple Street and outfalhng at Locust Street D Issue technical memo recommending tributary ~mprovements and outfall location of proposed storm sewer for Eagle Drive and Colhns Street Memo w~ll also recommend soope and hm~ts for the preparation of construction documents for proposed storm sewer described ~n Part B The technical memo w~ll also ~nclude esbmates of probable construction cost for the various recommended ~mprovements and schematic base map described ~n Part B 97233300 L01 E C~ty of Denton w~ll provide base maps, ex~st~ng plans, and field survey venficaflon such as culvert flow hnes, channel cross secbons, street profiles, etc Lump Sum Fee $35,000 00 97233300 LO1 EXHIBIT B COLLINS STREET PHASE I - TRAFFIC ANALYSIS SCOPE OF WORK AND COMPENSATION SCOPE A Perform s~gnahzed capacity analys~s at the ~ntersect~on of Colhns and US 377 using ex~st~ng cycle lengths and phasing B Perform s~gnahzed capacity analys~s at Colhns and US 370 allowing the computer program to optimize the t~m~ng and phasing C Perform uns~gnahzed capacity analys~s at the ~ntersecbons of Colhns at Bernard and Colhns at Welch D Using the results of the above analys~s, determine the appropnate geometncs to provide a reasonable level of service E Document the findings ~n a technical memo F Prior to performing the above treff~c analys~s, the C~ty of Denton w~ll prowde a m and p m hour turning movement counts at the following ~ntersect~ons 1 US 377 at Colhns Street 2 Colhns Street at Bernard 3 Colhns Street at Welch 24 hour d~rect~onal machine counts for a typical weekday at the following locations 1 Collins between A Street and Welch 2 Collins between Welch and Bernard 3 Colhns east of US 377 Lump Sum Fee $3,700 00 97233300 L01 EXHIBIT "C" PROFESSIONAL SERVICES RATE STRUCTURE Pnncipal $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 97233300