1996-165J \NPDOCS\ORD\NATERDIS ORD
ORDINANCE NO. ~
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE
CITY OF DENTON AND THE ENGINEERING FIRM OF SHIMEK, JACOBS & FINKLEA
FOR THE PROFESSIONAL ENGINEERING SERVICES INCIDENT TO A HYDRAULIC
ANALYSIS AND MASTER PLAN REPORT FOR THE WATER DISTRIBUTION SYSTEM;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN
EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
~ That the City Manager is hereby authorized to
execute an Agreement between the C~ty of Denton and the engineering
firm of Shimek, Jacobs & Finklea for completion of an hydraulic
analysis and master plan report for the water distribution system.
SEIO~ That the City Council hereby authorizes the
expenditure of funds as provided ~n the Agreement
~ That th~s ordinance shall become effectIve
immediately upon its passage and approval.
PASSED AND APPROVED this the/~-~day of ~,
1996.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
fl
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
PROFESSIONAL SERVICES AGREEMENT
FOR ENGINEERING SERVICES
STATE OF TEXAS
COUNTY OF DENTON
REEMENT into as of the /fz~dav of
is
made
and
entered
, 1996, by and between the City of Denton,~--'------a Texas
rporatlon, with its principal office at 215 E McKlnney
on, Denton County, Texas 76201, (hereinafter sometimes
referred to as "OWNER") and Shlmek, Jacobs & Flnklea, a
partnership, with its principal office at 8333 Douglas Avenue,
#820, Dallas, Dallas County, Texas, hereinafter called the
("CONSULTANT") actlng herein, by and through their duly authorized
representative.
WITNESSETH, that in cons~deratlon of the covenants and
agreements herein contained, the parties hereto do mutually agree
as follows:
ARTICLE I
EMPLOYMENT OF CONSULTANT
The OWNER hereby contracts with CONSULTANT, as an ~ndependent
contractor, and the CONSULTANT hereby agrees to perform the
services herein ~n connection with the Project as stated in the
sections to follow, w~th dlllgence and in accordance w~th the
h~ghest professional standards customarily obtained for such
servlces in the State of Texas. The professional services set out
herein are ~n connection wlth the following described project:
Hydraulic Analysis and Master Plan Report for the Water
Distribution System.
The Project shall include without llmltatlon, (herein descrlbed
Project) the Consultant providing hydraulic analysis and
preparation of a Master Plan Report for the Clty of Denton's Water
Distrlbutlon System.
ARTICLE II
SCOPE OF SERVICES
The CONSULTANT shall perform the fgll~w~ng basic englneerlng
services -(including the preparatlo~ of detailed plans and
specifications) ina professional manner:
A. Convert the City of Denton's current water dlstrlbutlon
system hydraulic model data set to the Cybernet hydraulic
model, lncluding both existing system and build-out
scenario models.
B. Evaluate both the maximum hourly and minimum hourly demands
based on
1. Available water records provided by the City
2 Current population estimates and projections provided
by the City
3 Existing and projected land use assumptions provided by
the City
C. Update both the existing system model and the Master Plan
model with the revised demands Apply the hydraulic system
demands based on existing and projected land use
assumptions.
D. Model all existing pump stations utilizing actual pump flow
data or pump curves, where available from the City
E. Add existing water lines to the model at the City's
direction and as required to properly evaluate both the
existing and build-out scenarios
F. Prepare both an existing system and master plan hydraulic
map showing the water system elements contained ~n the
hydraulic model lncludlng:
1 Line sizes and numbers of critical lines
2. Junction nodes and numbers.
3. Exlstlng and recommended elevated and ground storage
tanks.
4. Exlstlng and recommended pump station layouts
G. The master plan map wall be based on the electronic street
map provided by the City of Denton.
H. Evaluate and make recommendations for system improvements
for both the existlng system and the master plan. The
evaluation shall include recommendations for:
· Elevated Storage Tanks
· Ground Storage Reservoirs
· Booster Pump Stations
· Pump Stations
· Distribution Lines
· System Improvements Required to Implement Use of
and/or Transmission of the Upper Trinity Water District
Water Supply
· Pressure Plane Boundary Adjustments
I. Assist the Clty wlth the determfnatlon of the best
tocatlon of proposed elevated ~torage and analyze scenarios
of Carious tank sites as dlrebted by the City.
J. Prepare and deliver ten copies of the existing conditions
water distribution map to the City.
PAGE 2
K Prepare and deliver ten copies of the projected bulldout
conditions water distribution map to the City
L Prepare and deliver to the City, 25 copies of the water
system master plan report including methodology of the
analysis, recommendations, schedules, probable cost for
system lmprovements, and computer analysis input and output
data set printouts.
M Deliver to the City, AutoCAD drawing files of both the
existing conditions and master plan water d~str~butlon
systems contaln~ng the Cybernet data base attributes. The
electronlc files w~ll be delivered to the C~ty under the
following conditions
1. The flles are compatlble w~th AutoCAD Release-12 by
Autodesk, and Cybernet Version 2.14 by Haestad Methods.
The CONSULTANT does not make any warranty as to the
compat~blllty of these files beyond the release of
AutoCAD Release-12 or Cybernet Version 2 14
2. Because data stored on electronic med~a can deteriorate
undetected or be modified, it is agreed that CONSULTANT
w~ll not be held llable for completeness or correctness
of electronic media after an acceptance per~od of
thlrty days after delivery of these files
3. The electronic files are an ~nstrument of CONSULTANT'S
service. Where a conflict exlsts between any hard copy
drawings, data printouts and electronic files, the hard
copy drawlngs and data prlntouts w~ll govern an all
cases.
4. Both part~es acknowledge mutual non-exclusive ownership
of the electronlc files and each party may use, alter,
modify or delete the files without consequence to the
other party.
5. The electronlc f~les provided by CONSULTANT to the
City, do not contain engineers' seals, handwritten
dates, nor signatures.
N. Present the flndlngs to the City staff, City Councll and/or
Public Utilities Board
ARTICLE III
ADDITIONAL SERVICES
Addltlonal Services to be performed by the CONSULTANT, ~f
authorize~ by the OWNER, whlch are ~ot included in the above
descri,bed ba~lc services, are described-as follows:
A. During the course of the project, as requested by OWNER, the
CONSULTANT wlll be avallable to accompany OWNER's personnel
when meeting with the Texas Natural Resource Conservation
PAGE 3
Commission, U.S. Environmental Protection ~gency, or other
regulatory agencies. The CONSULTANT wlll assist OWNER
personnel on an as-needed basis in preparing compliance
schedules, progress reports, and providing general technical
support for the OWNER's complIance efforts
B. Investigations involving detailed consideration of operation,
maintenance and overhead expenses, and the preparation of rate
schedules, earnings and expense statements, feasibility
studies, appraisals, evaluations, assessment schedules, and
material audits or inventories required for certification of
force account construction performed by the OWNER
C. Sampllng, testing or analysis beyond that specifically
included in Basic Services
D. Preparing copies of Computer Aided Drafting (CAD) electronic
data bases, drawings, or files for the OWNER's use in a future
CAD system
E. Preparing applications and supporting documents for government
grants, loans, or planning advances and providing data for
detailed applications.
F. Appearing before regulatory agencies or courts as an expert
w~tness in any l~tlgatlon with third parties or condemnation
proceedings arising from the development or construction of
the Project, including the preparation of engineering data and
reports for assistance to the OWNER.
G. Providing geotechnl¢al investigations for the site ~ncludlng
soil borings, related analyses and recommendatlons.
H. Preparation of fire flow contour maps of both the existing and
master plan models.
I. Any additlonal services requested by the OWNER, not included
~n the provisions of Article II herelnabove
ARTICLE IV
PERIOD OF SERVICE
This Agreement shall become effective upon execution by the
OWNER and the CONSULTANT of this Agreement, and upon issuance of a
notice to proceed by the OWNER, and shall remain in force for the
period whlch may reasonably be required for the completlon of the
Project, lncludlng Addltlonal Services, if any, and any required
extensions approved by the OWNER. Thl~ Agreement may be sooner
termlnated in accordance wlth the prqvlslons hereof. Time is of
the essem¢~ i~ this Agreement Th~ CONSULTANT shall make all
reasonable ~fforts to complete the s~rvlces set forth herein as
expeditiously as possible and to meet the schedule established by
the OWNER, acting through its Clty Manager or his designee
PAGE 4
ARTICLE V
COMPENSATION
A. COMPENSATION TERMS
1. "Subcontract Expense" is defined as expenses incurred by
the CONSULTANT in employment of others in outside firms for
services in the nature of foundation borings, testing,
surveying, and similar services.
2 "Direct Non-Labor Expense" is defined as that expense for
any assignment incurred by the CONSULTANT for supplies,
transportation and equipment, travel, communications,
subsistence and lodging away from home and similar
incidental expenses in connection with that assignment
B. BILLING AND PAYMENT:
For and in consideration of the professional services to be
performed by the CONSULTANT herein, the OWNER agrees to pay
based on the Schedule of Charges at the hourly rate shown in
Exhibit A, which is attached hereto and made a part of this
agreement as if wrltten word for word herein, a total fee not
to exceed $30,000.00.
Partial payments to the CONSULTANT wlll be made on the basls
of detailed monthly statements rendered to and approved by the
OWNER through its C~ty Manager or his deslgnees; however,
under no c~rcumstances shall any monthly statement for
services exceed the value of the work performed at the time a
statement is rendered. The OWNER may w~thhold the f~nal 5% of
the contract amount until completion of the project.
Nothing contained in th~s Article shall require the OWNER to
pay for any work which is unsatlsfactory as reasonably
determined by the City Manager or h~s designee or which ls not
submitted In compliance with the terms of this contract. The
city shall not be required to make any payments to the
CONSULTANT when the CONSULTANT ls ~n default under this
contract.
It is speclflcally understood and agreed that the CONSULTANT
shall not be authorized to undertake any work pursuant to th~s
agreement which would require additional payments by the OWNER
for any charge, expense or reimbursement above the maximum not
to exceed fee as stated without first having obtalned written
authorization from the OWNER. The CONSULTANT shall not
proceed to perform the services listed ~n -~rtlcle III,
Additional Servlces, without obtaining prior written
authorization from the OWNER.
C. ADDITIONAL SERVICES
1. For additional services authorized in writing by the OWNER ~n
Article III, the CONSULTANT shall be paid based on the
PAGE 5
Schedule of Charges at an hourly rate shown in Exhibit A
Payments for additional services shall be due and payable upon
submission by the CONSULTANT and shall be in accordance with
subsection B hereof Statements shall not be submitted more
frequently than monthly
2. For additional services as specified in Article III, Paragraph
H , related to the fire flow contour maps of both the existing
and master plan models, CONSULTANT'S billings shall not exceed
$2,500.00
D PAYMENT
If the OWNER falls to make payments due the CONSULTANT for
services and expenses wlthln 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 slxtleth (60th) day, and
addition, the CONSULTANT 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 services, expenses and charges provided,
however, nothing herein shall require the OWNER to pay the
late charge of one percent (1%) set forth herein if the OWNER
reasonably determines that the work is unsatisfactory,
accordance wlth this Article V, Compensation.
ARTICLE VI
OBSERVATION AND REVIEW OF THE WORK
The CONSULTANT will exercise reasonable care and due diligence
in discovering and promptly reporting to the OWNER any defects or
deficiencies in the work of the CONSULTANT or any of its
subcontractors or subconsultants.
ARTICLE VII
OWNERSHIP OF DOCUMENTS
All documents prepared or furnished 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 termlnatlon of this Agreement. The
CONSULTANT is entitled to retain coples of all such documents The
documents prepared and furnlshed by the CONSULTANT are intended
only to be applicable to this project and OWNER'S use of these
documents in other projects shall be at OWNER'S sole r~sk and
expense. In the event the OWNER uses the Agreement in another
project or for other purposes than specified herei~ any of the
information or materials developed p~rsuant to this agreement,
CONSULTA~[T ts released from any and all liability relatlng to their
use in that ~ro]ect.
PAGE 6
ARTICLE VIII
INDEPENDENT CONTRACTOR
CONSULTANT shall provlde 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
ARTICLE IX
INDEMNITY AGREEMENT
The CONSULTANT shall indemnify and save and hold harmless the
OWNER and its officers, agents, and employees from and against any
and all liability, claims, demands, damages, losses and expenses,
including but not l~mlted to court costs and reasonable attorney
fees incurred by the OWNER, and including without limitation
damages for bodily and personal injury, death and property damage,
resultlng from the negligent acts or omissions of the CONSULTANT or
its officers, shareholders, agents, or employees in the execution,
operation, or performance of this Agreement.
Nothing ~n thls Agreement shall be construed to create a
liability to any person who is not a party to this Agreement and
nothlng hereln shall walve any of the party's defenses, both at law
or equity, to any clalm, cause of actlon or lltlgatlon filed by
anyone not a party to this Agreement, including the defense of
governmental immunity, which defenses are hereby expressly
reserved.
ARTICLE X
INSURANCE
Durlng the performance of the Services under th~s Agreement,
CONSULTANT shall ma~ntaln the followlng insurance with an insurance
company l~censed to do bus~ness in the state of Texas by the State
Insurance Commisslon or any successor agency that has a rating wlth
Best Rate Carriers of at least an A- or above:
A. Comprehensive General L~abll~ty Insurance with bodlly injury
l~mits of not less than $500,000 for each occurrence and not
less than $500,000 ~n the aggregate, and with property damage
l~m~ts of not less than $100,000 for each occurrence and not
less than $100,000 in the aggregate.
B. Automobile Llablllty Insurance with bodily ln]ury llmlts of
not less than $500,000 for each person and not less than
$500,000 for each accident and wlth property damage llmlts for
not less than $100,000 for each accident.
C. Worker's Compensation Insurance l~ accordance with statutory
requArements and Employers' Llabl~lty Insurance with l~mlts of
not le~s than $100,000 for each ~ccldent.
D. Professional Liability Insurance w~th llmlts of not less than
$1,000,000 annual aggregate.
PAGE 7
E The CONSULTANT shall furnish Insurance certificates 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 policies and shall contain a
provision that such insurance shall not be canceled or
modified without 30 days prior written notice to OWNER and
CONSULTANT. In such event, the CONSULTANT shall, prior to the
effective date of the change or cancellation, serve substitute
policies furnishing the same coverage
ARTICLE XI
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties may agree to settle any disputes under this
Agreement by submitting the dispute to arbitration or other means
of alternate dispute resolution such as mediation No arbitration
or alternate dispute resolution arising out of or relating to, this
agreement involving one party's disagreement may include the other
party to the disagreement without the other's approval
ARTICLE XII
TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Agreement, either
party may terminate by giving thirty (30) days advance written
notice to the other party.
B. This agreement may be terminated in whole or in part ~n the
event of e~ther party substantlally falllng to fulflll its
obligations under this Agreement. No such termlnatlon wlll 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 nonperformance, and not less than 30 calendar days to cure
the failure, and (2) an opportunity for consultation with the
terminating party prior to termination.
C. If the agreement ~s terminated prlor to completlon of the ser-
vices to be provided hereunder, CONSULTANT shall immediately
cease all services and shall render a final bill for services
to the OWNER within 30 days after the date of termlnat~on.
The OWNER shall pay CONSULTANT for all services properly
rendered and satisfactorily performed and for reimbursable
expenses to termination incurred prlor to the date of
termination in accordance with Artlcle V, Compensation.
Should the OWNER subsequently contract with a new CONSULTANT
for the continuation of services on the project, CONSULTANT
shall cooperate in providing information. The CONSULTANT
shall turn over all documents ~epared or furnished by
~ONSULTANT pursuant to this Agreement to the OWNER on or
before'%he date of termination but may maintain cop~es of such
documents for its use.
PAGE 8
ARTICLE XIII
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 City for any defect in the design or other
work prepared by the CONSULTANT, its employees, subcontractors,
agents and consultants
ARTICLE XIV
NOTICES
All notices, communications, and reports required or permitted
under this Agreement shall be personally delivered or mailed to the
respective parties by depositing same in the United States mall at
the address shown below, certified mall, return receipt requested
unless otherwise specified herein Mailed notices shall be deemed
communicated as of three days mailing.
To CONSULTANT: To OWNER
Shlmek, Jacobs & Flnklea City of Denton
Attn: Gary C. Hendrlcks, P.E. ATTN. Robert E. Nelson, P.E.
8333 Douglas Avenue, #820 Title: Exec. Director of Utilities
Dallas, Texas 75225 215 E. McKinney
Denton, Texas 76201
Ail notices shall be deemed effective upon receipt by the
party to whom such notice is given or wlthln three days mailing.
ARTICLE XV
ENTIRE AGREEMENT
This Agreement consisting of twelve (12) pages and one (1)
exhibit constitutes the complete and final expression of the
agreement of the parties and is intended as a complete and
exclusive statement of the terms of their agreements and supersedes
all prior contemporaneous offers, promises, representations,
negotiations, discussions, communications and agreements which may
have been made in connection with the subject matter hereof
ARTICLE XVI
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 o(~nsldered severable from th~ remainder of this Agreement
shall not c&%se the remainder to be lhvalld or unenforceable In
such event, the party shall reform this Agreement to replace such
stricken provision with a valid and enforceable provision which
comes as close as possible to expressing the intention of the
stricken provision.
PAGE 9
ARTICLE XVII
COMPLIANCE WITH LAWS
The CONSULTANT shall comply with all federal, state, local
laws, rules, regulations, and ordinances applicable to the work
covered hereunder as they may now read or hereinafter be amended.
ARTICLE XVIII
DISCRIMINATION PROHIBITED
In performing the services required hereunder, the CONSULTANT
shall not discriminate against any person on the basis of race,
color, religion, sex, national origin or ancestry, age, or physical
handicap.
ARTICLE XIX
PERSONNEL
A The CONSULTANT represents that it has or will secure at its
own expense all personnel required to perform all the services
requlred under this Agreement Such personnel shall not be
employees or officers of, or have any contractual relations
wlth the City of Denton, Texas CONSULTANT shall promptly
· nform the OWNER of any conflict of interest or potentlal
conflict of interest that may arlse during the term of th~s
Agreement
B. All servlces required hereunder will be performed by the
CONSULTANT or under its supervisIon All personnel engaged in
work shall be qualified and shall be authorlzed and permitted
under state and local laws to perform such services.
ARTICLE XX
ASSIGNABILITY
The CONSULTANT shall not assign any interest in thls Agreement
and shall not transfer any interest in th~s Agreement (whether by
asslgnment, novation or otherwise) wlthout the prior written
consent of the OWNER.
ARTICLE XXI
MODIFICATION
No walver or modification of this Agreement or of any
covenant, conditlon, llmltatlon herein contained shall be valid
unless in wrltlng and duly executed by the party to be charged
therewith, and no evldence of any waiver or modification shall be
offered or recelved in evldence in any proceedlng arr~lng between
the parties hereto out of or affecting this Agreement, or the
rlghts o~_obllgat~ons of the parties ~ereunder, and unless such
waiver or m~ficat~on ls in writing, ~uly executed, and, the
parties further agree that the provisions of thls section will not
be walved unless as here~n set forth.
PAGE 10
ARTICLE XXII
MISCELLANEOUS
A The following exhibits are attached to and made a part of this
Agreement Exhibit "A" (Shlmek, Jacobs & Flnklea Schedule of
Charges, 1996).
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 directly pertinent
books, documents, papers and records of the CONSULTANT
involving transactions relating to this Agreement CONSULTANT
agrees that OWNER shall have access during normal working
hours to all necessary CONSULTANT facilities and shall be
provided adequate and appropriate working space in order to
conduct audits in compliance with this section OWNER shall
give CONSULTANT reasonable advance notice of intended audits.
C Venue of any suit or cause of action under this Agreement
shall lie exclusively in Denton County, Texas Th~s Agreement
shall be construed in accordance with the laws of the State of
Texas.
D For the purpose of this Agreement, the key person who will
perform most of the work hereunder shall be Gary C Hendrlcks,
P.E. However, nothing herein shall limit CONSULTANT from
using other qualified and competent members of their firm to
perform the services required herein.
E. CONSULTANT shall commence, carry on, and complete any and all
pro3ects wlth all applicable dispatch, in a sound, economical,
efficient manner; and, in accordance with the provisions
hereof. In accomplishing the projects, CONSULTAI~T shall take
such steps as are appropriate to ensure that the work lnvolved
is properly coordinated with related work being carried on by
the OWNER.
F. The OWNER shall assist the CONSULTANT by placing at the
CONSULTANT's disposal all available information pertlnent to
the project, includlng previous reports, any other data
relative to the pro3ect and arranging for the access to, and
make all provisions for the CONSULTANT to enter in or upon,
public and private property as required for the CONSULTANT to
perform services under this Agreement
G The captions of this Agreement are for Informational purposes
only and shall not in any way affect the substantive terms or
conditions of this Agreement. --
PAGE 11
IN WITNESS HEREOF, the City of Denton, Texas, OWNER, has
caused this Agreement to be executed b7 its duly authorized City
Manager, and CONSULTANT has executed/~/~t~j's Adgarye%mfen~ through its
duly authorized partners on this the
1996 .
OWNER
CITY OF DENTON, TEXAS
Ted Benavides, City Manager
ATTEST ·
JENNIFER WALTERS, CITY SECRETARY
AI~PR~VED AS TO LEGAL FORM. ·
HERBERT L. PROUTY, CITY ATTORNEY
By. >
CONSULTANT
PARTNER
ATTEST:
S}{IMEK, JACOBS & FINKLEA
JOH~/W~ BIR~HOFF, P E ! t
PARTNER F \UPDOC$\K\STORMUAT K
PAGE 12
EXHIBIT "A"
SHIMEK, JACOBS & FINKLEA
SCHEDULE OF CHARGES
1996
Range of Billing
Category Rate/Hour
Word Processing $25 00 $40 00
Drafter/Techmclan $25 00 55 00
Project Engineer $50 00 75 00
Project Manager/Principal Engineer $80 00 115 00
*Bdlable rates are based on d~rect salary cost tunes a mult~pher of 2 3 Range of billable rates
adjusted annually
*A multlpher of 1 10 will be apphed to all subcontract expenses A multlpher of 1 10 will be
apphed to all other d~rect non-labor expenses
*In-house computer tune ~s billed at $25 per hour
*Expert wttness tune ~s billed at $150 per hour
*Plotting services $5 00 per sheet
*2-Man Survey Crew billed at $80 00 per hour
C \WPDOC$~K~XHIBIT A