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1995-241E:\WPDOCS\ORD\COOPER.CK ORD,,ANC . ,O. A/q ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE A/q ENGINEERING SERVICES AGREEMENT BETWEEN THE CITY OF DENTON AlqD GUTIERREZ, SMOUSE, WILMUT & ASSOC., INC. FOR COOPER CREEK DRAINAGE BASIN REHABILITATION AND DESIGN; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. SECTION I. That the Mayor is hereby authorized to execute an engineering services agreement between the City of Denton and Gutierrez, Smouse, Wilmut & Assoc., Inc. for Cooper Creek drainage basin rehabilitation and design, a copy of which is attached hereto and incorporated by reference herein. SECTION II. That the expenditure of funds as outlined in the agreement is hereby authorized. SECTION III. That this ordinance shall become effective immediately upon its passage and approval. PASSED AiqD APPROVED this the~l~ day of~, 1995. BOB CASTL ~ ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY ENGINEERING SERVICES AGREEMENT FOR MANHOLE REPAIR AND REHABILITATION AND SERVICE LINE REPAIRS UNDER THE COOPER CREEK DRAINAGE BASIN SANITARY SEWER SEWER EVALUATION SURVEY REPORT STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made and entered into as of the ~/~ day of~, 1995, by and between the City of Denton, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, ("OWNER") and Gutierrez, Smouse, Wilmut & Assoc., Inc., with its corporate office at 11117 Shady Trail, Dallas County, Texas 75229, hereinafter called the ("ENGINEER") acting herein, by and through its representative, duly authorized so to act for and in behalf of said ENGINEER. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF ENGINEER The OWNER agrees to employ the ENGINEER as an independent contractor, and the ENGINEER agrees to perform professional engineering services in connection with the Project as stated in the sections to follow, and for having rendered such services, the OWNER agrees to pay to the ENGINEER compensation as stated in the section to follow. The Project shall include design and limited construction representation services for preparation of plans and specifications for manhole repairs and rehabilitation and specified service line repairs as outlined in the Cooper Creek Drainage Basin Sanitary Sewer Evaluation Survey Report (February Page 1 of 20 457-0450 1995). The ENGINEER agrees to exercise the same degree of care, skill and diligence in the performance of these services as is ordinarily provided by a professional consultant under similar circumstances and ENGINEER shall, at no cost to OWNER, "reperform" services which fail to satisfy the foregoing standard of performance. ARTICLE II PERIOD OF SERVICE This Agreement shall become effective upon execution by the OWNER and the ENGINEER and shall remain in force for the period which may reasonably be required for the construction of the Project, including Additional Services and any reburied extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The ENGINEER shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedules mutually established by the parties. ARTICLE III BASIC ENGINEERING SERVICES The ENGINEER shall render the following professional services for development of the PROJECT: Upon execution of this Agreement, the ENGINEER shall perform the following basic engineering services: Page 2 of 20 457-0450 A. GENEP~AL SCOPE OF SERVICES Preparation of plans and specifications for the repair and rehabilitation of identified manhole and service line defects as entitled "Sanitary Sewer Evaluation Survey, Cooper Creek Drainage Basin," February, 1995. Service line defects include Item Numbers 71, 72, 73, 75, 78, 79 and 80 as listed in the above referenced table. (Exception: Item Number 4, "Replace MH Cover" will be accomplished by City of Denton personnel.) The design shall include elimination of 372 manhole defects and 58 service line defects. B. TASKS/ORDER OF WORK The major divisions within the Scope of Work are: 1. Project Startup/Management 2. Preliminary Design 3. Pre-Final Design 4. Final Design C. DETAILED DESIGN The scope of work for this phase is a general outline of services to be provided and is based of the understanding of the project at this time. 1. Prepare detailed plans, specifications, contract documents, designs, and layouts of improvements to be constructed based on a previously authorized general site master plan. (All topographic surveys to be furnished by the OWNER.) Page 3 of 20 457-0450 2. Provide the OWNER with advice, when requested, with respect to the making of all subsurface investigations, including borings, test pits, soil resistivity surveys, and other subsurface explorations; however, the making of such investigations and the interpretations of data and reports by special consultants are not a part of the services to be rendered by the ENGINEER, and the cost therefor shall be paid by the OWNER. The ENGINEER shall monitor and review the work of testing laboratories and inspection bureaus required for the testing or inspection of materials, witnessed tests, factory testing, etc., for the Project, but the cost of such laboratory tests or inspection shall be paid by the OWNER. 3. Submit plans, specifications, and contract documents provided by the OWNER to the applicable federal and state agency(s) for approval, where required. 4. Furnish such information necessary to utility companies whose facilities may be affected or services may be required for the Project. 5. Prepare an opinion of probable construction cost, and bidder's proposal forms (project quantities) of the improvements to be constructed. 6. Perform field surveys to tie existing conditions to provide proper and complete information on the plans. Page 4 of 20 457-0450 7. Furnish the OWNER three (3) sets of copies of plans, specifications, and bid proposals marked "Preliminary" for approval by the OWNER. After modification, three (3) sets of "Pre-final" plans will be provided for review. Upon final approval by the OWNER, the ENGINEER will provide the OWNER three (3) sets of copies of "final" plans. As directed by the OWNER, additional sets of plans, specifications and bid documents as are necessary in the receipt of bids for construction and as are required in the execution of the project, shall be furnished by the ENGINEER and shall be paid for by the OWNER at actual cost of reproduction. D. Limited Construction Representation 1. Answer and prepare responses to questions from the OWNER during advertisement of the project for bids. 2. Attend a pre-construction conference with the OWNER and Contractor. ARTICLE IV ADDITIONAL SERVICES Additional services to be performed by the ENGINEER, if authorized by the OWNER, which are not included in the above described basic services, are described as follows: A. Contract Document Reproduction. Reproduction of contract documents for state approvals, advertisement of project for bids and for use by CONTRACTOR during construction. Page 5 of 20 457-0450 B. Resident Construction Representation. Providing full- time on-site field observation of the construction activities. C. Preparation of an updated Plant Facilities Operations Manual to address operation procedures for the composting facilities to be added under this contract. As part of this task, the large, wall-sized piping plan showing all buried piping known to be present at the plant site can be updated if requested by OWNER. D. Regulatory Assistance. During the course of the project, as requested by OWNER personnel, the ENGINEER will be available to accompany OWNER personnel when meeting with the Texas Natural Resource Conservation Commission, U.S. Environmental Protection Agency, or other regulatory agencies. The ENGINEER will assist OWNER personnel on an as-needed basis in preparing compliance schedules, progress reports, and providing general technical support for the O's compliance efforts. E. Construction Site Visits. If the ENGINEER is requested to visit the project site during construction, the requested visits shall be considered as an Additional Service and the ENGINEER shall be entitled to additional compensation. F. Evaluation of Contractor Substitutions. Performing investigations, studies and analyses of substitutions of equipment and/or materials or deviations from the plans and specifications. This shall include evaluation of alternative equipment submitted with bids for the project. G. Field layouts or the furnishing of construction line and grade surveys. Page 6 of 20 457-0450 H. Providing shop, mill, field or laboratory inspection of materials and equipment. I. Assisting the OWNER in claims disputes with Contractor(s). J. Assisting OWNER or Contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by ENGINEER on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. K. Sampling, testing or analysis beyond that specifically included in Basic Services. L. 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. M. Preparing copies of Computer Aided Drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system. N. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. O. Providing video camera with video tapes of construction phase to be used as a historical record and for operator training. Page 7 of 20 457-0450 P. Appearing before regulatory agencies or courts as an expert witness in any litigation 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. Q. Providing geotechnical investigations for the site including soil borings, related analyses and recommendations. R. Assisting the OWNER during the advertisement phase by distributing contract documents, preparing and issuing any necessary addenda, answering questions directly from prospective bidders, reviewing, tabulating, and making recommendations of award of a construction contract. S. Conforming the construction documents for execution by the OWNER and Contractor. T. Preparation of Construction Record Drawings. Revising the construction drawings in accordance with the information furnished by construction Contractor reflecting changes in the Project made during construction. One set of reproducible prints of "Record Drawings" shall be provided by the ENGINEER to the OWNER. U. Any additional services required by the OWNER not included in Basic Services. ARTICLE V RESPONSIBILITIES OF OWNER The OWNER shall do the following in a timely manner so as not to unreasonably delay the services of the ENGINEER: Page 8 of 20 457-0450 A. Designate in writing a person to act as the OWNER's representative with respect to the services to be rendered under this Agreement. Such person shall have contract authority to transmit instructions, receive information, interpret and define the OWNER's policies and decisions with respect to the ENGINEER's services for the Project. B. Shall consult with the ENGINEER regarding requirement for the Project, including (1) the OWNER's contemplated objectives and (2) schedule and design constraints and criteria. C. Assist the ENGINEER by placing at the ENGINEER's disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. D. Arrange for access to, and make all provisions for the ENGINEER to enter upon, public and private property as required for the ENGINEER to perform services under this Agreement. E. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. F. The OWNER shall make or arrange to have made all subsurface investigations, including but not limited to borings, test pits, soil resistivity surveys, and other subsurface explorations. The OWNER shall also make or arrange to have made the interpretations of data and reports resulting from such investigations. All costs associated with such investigations shall be paid by the OWNER. Page 9 of 20 457-0450 The OWNER shall make or arrange to have made all material testing and sampling required for the project. All costs associated with such testing and sampling shall be paid by the OWNER. H. Provide transportation such as airline fare, automobile rental or subsistence required for the OWNER's personnel to attend project meetings or inspection trips. I. Bear all costs incident to compliance with the requirements of this Article V. ARTICLE VI COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as the expense that is incurred by the ENGINEER 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 ENGINEER for supplies, transportation and equipment, travel, communications, subsistence and lodging away from home and similar incidentals in connection with that assignment. Page 10 of 20 457-0450 B. BASIC SERVICES: For and in consideration of consideration of the scope of services, Article III, Paragraphs A, B, C and D to be rendered by the ENGINEER, the OWNER agrees to pay based on the schedule of charges shown in Exhibit A, with the total fee not-to-exceed $26,204.00. Partial payments to the ENGINEER will be made on the basis of monthly statements rendered to and approved by the OWNER; however, under no circumstances shall any monthly statement for services exceed the value of work performed at the time a statement is rendered. The OWNER may withhold the final 5 percent of the contract amount until completion of the project. Nothing contained in this article shall require the City of pay for any work which is unsatisfactory as reasonably determined by the Executive Director of Utilities or which is not submitted in compliance with the terms of this Contract. The City shall not be required to make any payments to the ENGINEER when the ENGINEER is in default under this Contract. It is specifically understood and agreed that the ENGINEER shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the maximum fee as stated without having first obtained written authorization from the OWNER. ENGINEER shall not proceed to perform the services listed in Article IV Additional Services, without obtaining prior written authorization from OWNER. Page 11 of 20 457-0450 C. ADDITIONAL SERVICES For addit%onal services authorized in writing by the OWNER in Article IV, the ENGINEER shall be paid based on the Schedule of Charges shown in Exhibit A for the actual hours required. The time requirements and estimated cost shall be mutually agreed upon in writing by the OWNER and ENGINEER prior to beginning work. Payments for additional services shall be due and payable upon submission by the ENGINEER. Statements shall not be submitted more frequently than monthly. D. PAYMENT If the OWNER fails to make payments due the ENGINEER for the services and expenses within sixty (60) days after receipt of the ENGINEER's statement, therefore, the amounts due the ENGINEER will be increased at the rate of 1 percent (1%) per month from said sixtieth (60th) day, and in addition, the ENGINEER may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the ENGINEER has been paid in full all amounts due for services, expenses and charges. Any applicable new taxes imposed upon services, expenses, and charges by any governmental body after the execution of this contract will be added as necessary to the ENGINEER's compensation. 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, in accordance with Article VI "Compensation", subsection B "Basic Services" Page 12 of 20 457-0450 ARTICLE VII OBSERVATION AA iD REVIEW OF THE WORK The ENGINEER will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONTRACTOR or any subcontractors. However, the CONTRACTOR will remain an independent contractor of the OWNER, and the ENGINEER does not guarantee the performance of such construction contracts. The ENGINEER shall not be responsible for the means, methods, techniques, sequences, or procedures of construction selected by the CONTRACTOR, or the safety precautions and programs incident to the work of the CONTRACTOR. ARTICLE VIII OWNERSHIP OF DOCUMENTS Ail documents prepared or furnished by the ENGINEER (and ENGINEER's independent associates and consultants) pursuant to this Agreement are instruments of service and shall become the property of the OWNER upon termination of this Agreement. The ENGINEER may make and retain copies for information and reference; however, such documents are not intended or represented to be suitable for reuse by the OWNER or others. Any reuse by the OWNER without written verification or adaptation by the ENGINEER will be at the OWNER's sole risk and without liability or legal exposure to the ENGINEER, or to the ENGINEER's independent associates or consultants. ARTICLE IX INDEMNITY AGREEMENT The ENGINEER shall indemnify and save harmless the OWNER and its officers, agents, and employees from the liability of the OWNER on account of any injuries or damages received or sustained by any person or persons or property, including court costs and reasonable attorneys fees incurred by the OWNER, proximately Page 13 of 20 457-0450 caused by the negligent acts or omissions of the ENGINEER or its officers, shareholders, agents or employees in the execution, operation, or performance of this Agreement. ARTICLE X INSUR3LNCE During the performance of the Services under this Agreement, ENGINEER shall maintain the following insurance and shall name OWNER as an additional insured on all such policies: 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 property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each accident and with property damage limits for not less than $100,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. The ENGINEER shall furnish insurance certificates to evidence such coverages. The certificates shall contain a provision that such insurance shall not be canceled or modified without 30 days prior written notice to OWNER. Page 14 of 20 457-0450 ARTICLE XI ARBITRATION No arbitration arising out of, or relating to, this Agreement involving one party to this Agreement may include the other party to this Agreement without the other's approval. ARTICLE XII TERMINATION OF CONTRACT This Agreement may be terminated by either party upon thirty (30) days' written notice. In the event of any termination, the ENGINEER and its subcontractors and subconsultants will immediately cease all services hereunder and will be paid for all services properly rendered and reimbursable expenses incurred to the date of termination and, in addition, all rein~bursable expenses directly attributable to termination. Should the City subsequently contract with a new Consultant for continuation of services on the Project, the ENGINEER shall cooperate in providing information. In accordance with Article VIII "Ownership of Documents", upon termination of the Agreement, all documents prepared or furnished by ENGINEER and its independent associates and consultants pursuant to this Agreement shall become the property of the OWNER. ARTICLE XIII SUCCESSORS AND ASSIGNMENTS The OWNER and the ENGINEER each are hereby bound and the partners, successors, executors, administrators and legal representatives of the OWNER and the ENGINEER are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. Page 15 of 20 457-0450 Neither the OWNER nor the ENGINEER shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent the ENGINEER from employing such independent associates and consultants as the ENGINEER may deem appropriate to assist in the performance of services hereunder. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the OWNER and the ENGINEER, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the OWNER and the ENGINEER and not for the benefit of any other party. This Agreement, consisting of pages 1 to 13 with Exhibits as listed in Article XVI, constitutes the entire Agreement between the OWNER and the ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified or canceled by a duly executed written instrument. ARTICLE XIV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the ENGINEER, its employees, associates, agents, and consultants 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 ENGINEER, its employees, subcontractors, agents, and consultants. Page 16 of 20 457-0450 ARTICLE XV NOTICES Ail notices, communications, and reports required or permitted under this Contract shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, certified mail, return receipt requested unless and until either party is otherwise notified in writing by the other party at the following addresses. Mailed notices shall be deemed communicated as of three days mailing. If intended for the OWNER, to: If intended for the ENGINEER, to: City of Denton Gutierrez, Smouse, Wilmut Attn: John Atkins & Assoc., Inc. 901-B Texas Street Attn: Charles G. Wilmut, Denton, Texas 76201 P.E. 11117 Shady Trail Dallas, Texas 75229 ARTICLE XVI A. The following exhibits are attached to and made a part of this Agreement: EXHIBIT A - Schedule of Charges B. A waiver by either the ENGINEER or the City of any breach of a provision of this contract shall not be binding upon the waiving party unless such waiver is in writing in the event of a written waiver, such a waiver shall not affect the waiving party's rights with respect to any other or future breach. C. Upon termination of this Agreement, ENGINEER shall provide OWNER with reproducible copies of all completed or partially completed engineering documents prepared under this AGREEMENT. Page 17 of 20 457-0450 D. ENGINEER agrees that OWNER shall, until the expiration of the three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the ENGINEER involving transactions relating to this Agreement. ENGINEER agrees that OWNER shall have access during normal working hours to all necessary ENGINEER facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. OWNER shall give ENGINEER reasonable advance notice of intended audits. E. Venue of any suit or cause of action under this Agreement shall lie in Denton County, Texas. F. For the purposes of this Agreement, the key persons who will perform most of this work hereunder shall be Charles Wilmut, P.E.,Principal, Michael Mikeska, P. E., Project Manager and Terrill Miller, Design Engineer. However, nothing herein shall limit ENGINEER from using other qualified and competent members of their firm to perform the services required herein. 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. This contract is executed in four counterparts. Page 18 of 20 457-0450 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized Mayor and ENGINEER has executed this Agreement through its duly authorized undersigned officer on this the ~/~ day of~. CITY OF DENTON, TEXAS Bob Castleberry, M~or~ ATTEST: Jennifer Walters, City Secretary APPROVED AS TO LEGAL FORM: ~t~ City Attorney ~ ~/~ /~ ~ / / Engineer ATTEST: / / . Charles~r~- ~. G. Wilmut, P.E., President Page 19 of 20 457-0450 EXHIBIT A GUTIERREZ, SMOUSE, WILMUT & ASSOC., INC. SCHEDULE OF CHARGES 1995 Category Average Billing Rate/Hour Clerical $36.00 Drafter/Technician $54.00 Design Engineer $72.00 Project Manager $84.00 Principal $108.00 Billable rates are based on direct payroll cost times a multiplier of 3.0. Range of billable rates adjusted annually. A multiplier of 1.10 will be applied to all subcontract and direct cost expenses. Page 20 of 20 457-0450