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
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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:
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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.)
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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.
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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.
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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.
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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.
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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:
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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.
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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.
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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.
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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"
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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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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