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2011-197ORDINANCE NQ�� �� - �`7 7 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH CP&Y, 1NC. OF DALLAS, TEXAS FOR ENGINEERING SERVICES, DESIGN AND DEVELOPMENT, TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 1NTERFACE, AND OTHER CONSULTING SERVICES ASSOCIATED WITH THE CITY OF DENTON'S MUNICIPAL SOLID WASTE (MSW) FACILITY AND PROVIDING AN EFFECTIVE DATE (FILE 4840-1N AN AMOUNT NOT TO EXCEED $135,000). � WHEREAS, the professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to enter into a professional service contract with CP&Y, Inc., to provide general engineering services related to design and development, TCEQ interface, construction submittal documents, bid specifications and other consulting services associated with the City of Denton's Municipal Solid Waste Facility, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager, or his designee, is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under the professional services agreement with CP&Y, Inc, to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the �� day of �. ,2011. :I I� � ; �. � MARK A. B OUG- S� MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ,-� APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �---�- , BY: � �� 4-0 - ile 4840 THE STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING FIRM THIS AGREEMENT is made and entered into as of the �� day of October, 2011, by and between the City of Denton, Texas, a Texas rnunicipal corporation, with its principal office at 215 East McKimiey Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and the ium of CP&Y, Inc., with its corporate office at 1820 Regal Row, Suite 200, Da11as, Texas 75235, hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives and of�cers. In consideration of the covenants, promises and the agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF ENGINEERING AND DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas engineering firm, and planning consultant, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Design Professional's Proposal dated September 14, 2011, limited to those tasks described therein in Exhibit A—"Proposal for Professional Services — General Engineering Services;" the General Conditions made a part hereof, and other attachments to this Agreement that are referenced herein, in connection with the Projects. SECTION 2 TERM OF AGREEMENT Ti.me is of the essence in this Agreement. Design Professional shall begin work immediately upon the issuance of a notice to proceed from the Owner and shall complete all work in a timely manner in accordance with the time allotted for each task as established by the General Manager, Solid Waste Departrnent and the Design Professional. All tasks are to be completed within the schedules established by the General Manager, Solid Waste Department and the Design Professional, unless the time for completion has been extended by the General Manager, Solid Waste Department. SECTION 3 COMPENSATION The Owner shall compensate the Design Professional as follows: 3.1 BASIC SERVICES. Page 1 3.1.1 For Basic Services the total compensarion including reimbursable expenses sha11 be not to exceed $135,000 based on the hourly rates for seroices shown in Exhibit "A" and Section 3.2.1. Design Professional services shall be invoiced to the Owner monthly. 3.1.2 Progress payments shall be paid to the Design Professional monthly for the Basic Seroices invoiced and satisfactorily completed. 3.2 ADDITIONAL SERVICES. 3.2.1 Compensation for professional services is as follows per E�ibit "A" (through December 31, 2012): Principal $185-230 per hour Senior Associate Engineer $170-215 per hour Senior Engineer $135-180 per hour Project Engineer $95-150 per hour Engineer in Trauung $75-115 per hour Drafter/Technician $55-95 per hour ClericaUAdministrative $35-65 per hour 3.2.2 Compensation for Additional Services of consultants, including any additional structural, mechanical and electrical engineering services shall be based on a multiple of 1.0 times the amounts billed to the Design Professional for such additional services. 3.3 REIlVIBURSABLE EXPENSES. Reimbursable Expenses shall be a multiple of 1 A times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions. SECTION 4 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. Exhibit "A" — Proposal for Professional Services — General Engineering Services - Fiscal Year 2011 (Letter to Vance Kemler, General Manager, Solid Waste Department dated September 14, 2011) These documents make up the Agreement documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Agreement documents, the inconsistency or conflict shall be resolved by giving precedence to Page 2 this Professional Services Agreement for Engineering Firm, then to the Agreement documents in the order in which they are listed above. This Agreement is signed by the parties hereto effective as of the date %rst above written. ATTEST: "OWIVER" CITY OF DENTON, TEXAS A Texas Municipal Corparation B . �'7 G ORGE C. CAMPBELL CITY MANAGER JENIVIFER WALTERS, CITY SECRETARY By: AP OVED A TO LEGAL FORM: TA BURGESS, CITY ATTORNEY By: . WITNESS: "DESIGN PROFESSIONAL" CP&Y, INC. A Texas Corporation � . � By: WILLIAM R. HINDMAN, P.E. Its Vice President I: �� � � � - -� --- �— Page 3 CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAI.OR ENGINEERING SERVICES ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSISILITIES 1.1 Tt�e Architect or Engineer's services consist of those services for the Project (as defined in tUe agreement (the "A�eement") and proposal (the "Proposal") to which these General Conditions aze attached) perfonned by the Architect or Engineer (hereinafter called the "Design Professional") or Design ProfessionaPs employees and consultants as enumerated in Articles 2 and 3 of tbese General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Desigu Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of caze and skill ordinarily exercised by members of the same profession currently practicing in the same localiry under similaz conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Caze"). The Services shal] be performed as expeditiously as is consistent with the Degee of Care necessary for the orderly progness of the Project. Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of Hme required for the Owner's review and for approval of submissions by authorities having jurisdiction over tbe Project Time limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED The Design ProfessionaPs Basic Services consist of those described in Sections 2.2 through 2.6 of these General Conditions and include without lunitation normal siructural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's progam, consduction schedule and construction budget requirements, each in terms of the other, subject to the ]imitations set forth in Subsection 5.21. 2.2.3 The Design Professional shall review with the Owner altemaHve approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Desi� Professional shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illushating the sca(e and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable ]aws, statutes, ordinances, codes and reguladons. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on cument area, volume or other unit wsts and wbich indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of constniction. 23 DESIGN DEVELOPMENT PHASE 23.1 Based on the approved Schematic Design Documents and any adjushnents authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepaze for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and descnbe the size and character of the Project as to architechu�al, shuctural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable ]aws, statutes, ordinances, codes and regulations. Notwithstanding Owne�'s approval of the documents, Design Professional represents that the Documents and specifications will be sufficient and adaquate to fulfill the pucposes of the Project. 23.2 The Design Professional shall advise the Owner of any adjushnents to the p�eliminary estimate of Construcrion Cost in a further Detailed Statement as described in Section 2.2.5. 2.4 CONSTRUC I'ION DOCUMENTS PHASE 2.41 Based on the approved Design Development Documents and any further adjushnents in the scope or quality of the Project or in the conshuction budget authorized by the Owner, the Design Professional shall prepare, £or approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forih in detail requirements for the construction of the Project, which shall comply with all applicable ]aws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agraement between the Owner and contractor. 2.4.3 The Design Professiona] shall advise the Owner of any adjustments to previous preliminary estimates of Conshuction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Design Professional sball assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of govemmental authorities having jurisdiction over the Project. 2.5 CONSTRUCTION CONTRACT PROCUREMENT 2.5.1 The Design Professional, following the Owner's approval of the Conshuction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement metl�od that is ]egally applicable to the Project including without Page 4 limitation, d�e competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the awazd of the consintction contract is in the sole discretion of the Owner. 2.5.2 If the conshuction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of ihe Project submitted by tt�e Design Professional, then the Design Professional, at its sole cost and expense, will revise the Construction Documents as may be required by the Owner to reduce or modi£y the quantity or quality of the work so that the rotal conshuction wst of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUC I'ION PHASE - ADNIIl�TISTRATTON OF THE CONSTRUCTION CONTRACT 2.61 The Design Professional's responsibiliry io provide Basic Services for the Consiruction Phase under this Agreement comme�ces with the award of the Contract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.32. 2.6Z The Design Professional shall provide detailed administraHon of the Conlract for Construction as set forth below. For design professionalss the administration shall also be in accordance with AIA document A201, General Conditioos of the Contract for Construction, current as of the date oF the Agreement as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the adminishation sball also be in accordance with the Standazd Specifications for Public Works Construction by the North Ce�tral Texas Council of Govemments, current as of the date of the Agreement, unless othenvise pravided in the Agreement. 2.6.3 Conshuction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional. 2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construcdon, and (2) at the Owner's direction from time to time during the correction, or warranty period descn'bed in the Contract for ConslrucHon. The Desig� Professional shall have authority to act on behalf of the Owner only to the eactent provided in the Agreement and these General Conditions, unless othenvise modified by written instrument. 2.6.5 The Design Professional sball observe the construction site at least one time a week, while construction is in progress, and as reasonably necessary while construction is not in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner indicating that the work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on-site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and sbal] exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Conhactor or any subconhactors. The Design Professional represents that he will follow Degree of Caze in performing all Services under the Agreement. The Design Professional shall promptly correct any defective designs or specifications fumished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or payment for all or aoy part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the Owner's rights hereuoder. 2.6.6 The Design Professiona] shall not have contro] over or chazge of and shall not be respons�ble For consmiction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contracto�'s scbedules or failure to cairy out the work in accordance with the Contract Documents except insofar as such failu� may result &nm Desigu Professional's negligent acts or omis- sions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subco�tiactors, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communicatioos bave 6een specially authorized, the Owner and Contractor shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Design Professional. 2.6.9 Based on the Desig� Professional's observations at the site of the work and evaluations of the Contractor's Applica[ions for Payment, the Design Professional shall review and certify the amounts due the Conhactor. 2.610 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Conhactor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Conhact Documents. The £oregoing representations aze subject to minor deviations frnm the Cootract Dowments cor- rectable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further coostitute a representation tbat the Contractor is entit]ed to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representadon that the Design Professional has (1) reviewed construction mea�s, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor bas used money previously paid on account of the Contract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Cootract Documents. Wheoever the Design Professional considers it necessary or advisable for implementarion of the intent of the Contract Documents, the Design Professional cvill have authoriry to require additional inspection or testing of the work in acwrdance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing podions of the work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) determining compliance with applicable ]aws, statutes, ordinances and codes; and (2) determining whether or not the work, when completed, will be in compliance with the requirements of the Conhact Documents. The Design Professional shall act with such reasonable prompmess to cause no delay in the work or in the construction of the Owner or of separate contracrors, while allowing sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substanUating inshuctions for installation or performance of equipment or systems designed by the ConVactor, all of which remain the responsibility of the Conhactor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Design Professional, oF conshuction means, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shal] not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics Page 5 of materials, systems or equipment is required by the Conhact Documents, the Desi� Professional shall be entided to rely upon such certiFication to establish that the materials, systems or equipment will meet the performance criteria required by the Conhact Documents. 2.6.13 The Design Professiooal shall prepaze Change Orders and Construction Change DirecNves, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.1.1 and 333, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor cbanges in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspectlons to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Fioal Completion. The Design Professional will receive and review written guarantees and related documents required by the Contract for Construction to be assembled by the Coohactor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2.615 The Design Professional shal] interpret and provide recommendations oo matters conceming performance of the Owner and Conhactor under the requirements of the Contract Documents on written request of either the Owner or Contracror. The Design Professional's response to such requests shall be made with reasonable promptness and within any rime limits agreed upon. 2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Design Professiona] shall endeavor ro secure faithfiil performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2.617 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question behveen the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents. 2.618 The Design Professional (1) shall render services under the Agi�eement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepazes; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Ag�ement or diminish any of the Design Professional's obligarions thereunder. 2.619 The Design Pmfessional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Construction Documents during the Construction Pbase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services descdbed under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 33 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives written approval from the Owner to proceed. If the Owner indicates in writing that all or part of such ConHngent Addidonal Services aze not required, the Design Professional shall have no obligaUon to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they aze not requued due to the negligence or fau]t of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.21 If more extensive representation at the site than is described in 5ubsection 2.6.5 is required, the Design Professional shall provide one or �nore Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project RepresentaHves shall be selected, empfoyed and directed by the Design Professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design Professional. 33 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: 1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustrnents in the Owner's program or Project budget; 2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3. due to cUanges required as a result of the Owner's failure to render decision in a timely manner. 3.3.2 Providing services requued because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owne�'s schedule, eaccept for services required under Subsection 2.5.2. 3.33 Preparing Drawings, Specifications and other documentation and supporting data, and providiog other services in connection with Change Orders and Construction Change Directives. 3.3.4 Providing consultatioo conceming replacement of work damaged by fire or other cause during conshuction, and furnishing services required in connection with the replacement of such work. 3.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of performance oFeither the Owner or Contractor under the Contract for Construction. Page 6 3.3.6 Providing services iri evaluating an exte�sive number of claims submitted by the Contractor or others in connection with the work. 3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Desigo Professional is party thereto. 3.3.8 Providing services in addition [o those required by Article 2 for preparing documents for altemate, separate or sequential bids or providing services in connaction with bidding or construction prior to the completion of the ConstrucHon Documents Phase. 3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrazy, all services described in this Article 3 that aze caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Desi� Professional for the Basic Services. The intervening or wncurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 33.9. 3.4 OPT'IONAL ADDITTONAL SERVICES 3.41 Providing financial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective si[es. 3.4.3 Providing special surveys, environmental studies and submissions required for approvals of govemmental authorities or others having jurisdiction over the Project. 3.4.4 Providing services relarive ro fuhue facilities, syste[ns and equipment. 3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4.6 Pmviding services to verify the accuracy of drawings or other information fumished by the Owner. 3.4.7 Providing coordination of conshuction performed by sepazate contractors or by the Owner's own forces and coordination of services required in connecHon with construction perFormed and equipment supplied by the Owner. 3.4.8 Providing detailed quantiry surveys or inventories of material, equipment and labor. 3.49 Providing analyses of operating and maintenance costs. 3.4.10 Making investigations, inventories of materials or aquipment, or valuations and detailed apprnisals of existi�g facilities. 3.4.12 Providing assistance in the utilization of equipmeut or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personuel for operation and maintenance and consultation during operation. 3.4.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of fumiture, fumishings aod related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the Final Certificate for Payment and e�cpiration of the Wamanty period of the Contract for Construction. 3.415 Providing services of consultants for other than architectural, civil, struchual, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.16 Providing any other services not otherwise included in this Agreement or not customarily fumished in accordance with generally accepted azchitectural practice. 3.4.17 Preparing a set of reproducible record drawings in addition to those required by Subsecdon 2.6.19, showing significant changes in the work made during con- sh-uction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional. 3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the conhary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Desi� Professional shall be performed by Ihe Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyood the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of The Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18. ARTICLE 4 OWNER'S RESPONSIBll.ITIES 4.1 The Owner sball consult with the Design Professiona] regarding requireme�ts for the Project, including (1) the Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendabiliry, special equipment, systems and site requirements, as more speci- fically described i� Subsection 2.21. 4.2 The Owner shall establish and update an overall budget for the Project, including the Coustniction Cost, the Owne�s other wsts and reasonable contingencies related to all of these costs. 4.3 If requested by the Design Professional, the Owner shall fiunish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely ma�er pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional's services. Page 7 4.5 Wt�ere applicable, the Owner shall fiunish surveys describiog physical characteristics, legal limitatioas and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal infonnation shall include, as applicable, gtades and lines of streets, alleys, pavements and adjoining properiy and structures; adjacent drainage; rights-of-way, resfictions, easements, encroachments, woing, deed resh-ictions, boundaries and contoucs of the site; locafions, dimensions and aecessary data peRaining to existing buildings, other improvements aod trees; and information conceming available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but aze not limitad to test borings, test pits, determinations of soil Ueariug values, percolation tests, evaluations of hazardous materials, ground corrosion and re- sistivity tests, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professiona] recommendations. 4.6.1 The Owner shall fumish the services of other consultants when such services are reasonably required by the scope of the Project and aze requestad by the Design Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shal] fumish shuctural, mechanical, chemical, air and water pollution tests, tests of hazardous materials, aod other laboratory and e�vironmenta] tests, inspectioos aod reports reyuired by ]aw or the Contract Documents. 4.8 The Owner shall fumish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Coniracto�s Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be fumished at the Owne�'s expense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional. 4.10 The Owner shall give prompt written noHce to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 411 Design Professional shall propose language for certificates or certificatious to be requested of the Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least fowteen (14) days prior to execudon. The Owner agrees not to request ceRifications that would require lrnowledge or services beyond the scope of the Agreemeut. ARTTCLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or speciSed by the Design Professional. 5.1.2 The Construction Cost shall include the cost at curre�t market rates of labor and materials fumished by the Owner and equipmeot designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contracto�s overhead and profit. In addition, a reasonable allowance for con- tingencies shall be included for mazket conditions at the tiine of bidding and for changes in the work during construcdon. 5.1.3 Conshuclion Cost does not include the compensation of the Design Professional and Desi� Professional's consultants, the wsts of the land, rights-of-way, financing or other costs which aze the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owne�'s Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepazed by the Design Professional represent the Design Professional's best judgment as a design professiona] familiar with the construction induslry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contracto�s methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not wanant or represent that bids or wst proposals will not vary finm tbe Owne�s Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixad limit of Construction Cost shall be established as a condition of the Agreement by the fumishing, proposal or establislunent of a Project budget, unless such fixed ]imit has been agreed upon in writing and sigued by the parties thereto. If such a fixed limit has been established, the Design Professioaa] shall be permitted to include contingencies for desig�, bidding and price escalation, to determine what inaterials, equipment, component systems and types of construction aze to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents altemate bids to adjust the Construction Cost to the fuced limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construcrion. 5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project budget or fixed limit of Conshuction Cost shall be adjusted to reflect changes in the general level of prices in the construction indushy between tUe date of submission of the Construction Documents to the Owner and the date on which proposals are sought. ARTICLE 6 OWNERSI3IP AND USE OF DOCiIMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project a� inshuments of the Design Professional's service and shall become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and e�cpense. In the event the Owner uses any of the information or materials developed puisuant to the Agreement in another project or for other purposes than are specified in the Agreemeut, the Design Professional is released from any and all liability relaHng to their use in that project 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. Page 8 ARTTCLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 The Design Professional may terminate the Agreement upon not less than thiriy days written notice should the Owner fail substantially to perform in accordance with the terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase theraof with or without cause upon thiriy (30) days prior written notice to the Design ProfessionaL All work and labor being performed under the Agreement shall cease immediately upon Design ProfessionaPs receipt of such notice. Before the end of the thiriy (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed priar to the receipt of such notice. No amouot shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the A�eement and shall be prompdy delivered to the Owuer in a reasonably organized form. Should Owner subsequently contract witb a new Design Professional for continuation of seroices on the Project, Design Professional shall cooperate in providing informaHon. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Design Professional's services. 7.3 The Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professiona] in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordacice with the Agreement shall be wnsidered substantial non- performance and cause far termination. 7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement. 7.6 In the event of termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to termination. ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL 8.1 DIRECT PERSONNEL EXPENSE 5.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatory and cusromary contn'burions and benefits related thereto, such as employment [axes and other stamtory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Fxpenses aze in addition to compensation for Basic and Additional Services and include expenses incurred by the Design Professional and Design Professional's employees and consultants in the interest of the Project, as identified in the following Clauses. 5.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out-of-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.2.1.2 Expeose of reproductions (except the reproduction of tt�e sets of documents referenced in Subsection 2.6.19), postage and haodling of Drawings, Specifications and other documents. 8.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expeose of renderings, models and mock-ups requested by the Owner. 8.2.1.5 Expense of wmputer-aided design and d�afting equipment time when used in connection with the Project. 8.2.1.6 Other expenses that are approved in advance in writing by the Owner. 8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 8.3.1 Payments for Basic Services shall be made monthly and, whene applicable, shall be in proportion to services perFormed within each phase of service, on the basis set forth in Section 3 of the Agreement and the schedule of work. 8.3.2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time sl�all be computed in tUe maoner set forth in Section 3 of the Agreement. 8.3.3 When compensation is based on a perceotage of Construction Cost and any portions of the Project are deleted or othenuise not constructed, compensation for those poRions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in SecHon 3 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Conshuction Cost for such portions of the Project. 8.4 PAYMENTS ON ACCOUNT' OF ADDITlONAL SERVICES 8.4.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made montbly within 30 days after the presentaGon to the Owner of the Design Professional's statement of services rendered or expenses incurred. 8.5 PAYMGNTS WITFI�IELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work otber than those for which the Design Professional is responsible. Page 9 8.6 DESIGN PROFESSIOIVAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of D'uect Personnel Expense for inspection and copying during regular business hours for three yeazs after the date of the fmal Certificate of Payment, or until any litigafion related to the Proje�t is final, whichever date is later. ARTICLE 9 INDEMNITY 9.1 The Design Professional shall indemnify and save and Uold harmless the Owner and its officers, agents, and employees from and against any and all liability, c]aims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attomey fees incurred by the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers, shareholders, agents, or employees in the performance of the Agreement. 9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of govemmental immunity, which defenses are hereby expressly reserved. ARTICLE lOINSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed or authorized to do business in the State of Texas by the State Insuraoce Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: 101 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate, and with properiy damage limits ofnot less than $100,000 for each occurrence and not less than $25o,000 in the aggregate. 10.2 Automobile Liability Insurance with bodily injury ]imits of not less than $500,000 for each person and �ot less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 103 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accidentincluding occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall fumish insurance certificates or insurance policies to the Owner evidencing insurance io compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name ihe Owner as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and Design Professional. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article ] 0. ARTICLE 11 NIISCEId.ANEOUS PROVISIONS 111 The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Ag�ement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement The Design Professional shall not assign its interests in the Agreement without the written consent of the Owner. 11.3 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Secdon 3 of the Agreement which together represent the entire and integrated agreement beriveen the Owner and Design Professional wd supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written inshument signed by both Owner and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2. Altachments referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal 11.4 Nothing contained in the Agreement shall create a contractua] relationship with or a cause of action in favor of a third party against either the Owner oc Design Professional. 11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to ioclude representations of the design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials. The Design Professional's materials sball not include the Owne�s confidenHal or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi- dential or proprietary. The Owner shall provide professional credit for the Design Professional on the constnaction sign and in the promotional materials for the Project. 11.6 Approval by the Owner shall not consritute, nor be deemed a release of the responsibility and liability of the Design Professioaal, its employees, associates, agents, subcontractors, and subco�sultants for the accuracy and competency of their desigas or other work; nor sUall such approva] be deemed to be an assumption of such respousibility by the Owner for any defect in the desig� or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. 11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mai] to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise speciFied herein. All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after mailing. Page 10 11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdicdon to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. Iu such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intenHon of the sficken provision. 119 The Design Professional shall comply with all federal, state, and local ]aws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended during the term of this Agreement. 11.10 In performing the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, narional origin or ancestry, age, or physical handicap. 1111 The captions of the Agreement are for informationa] purposes only, and sball not in any way affect the substantive terms or conditions of the Agreement. Page 11 � _ S,, September 14, 2011 "EXHIBIT A" Parh�ers for u Belicr Qunlily of Life Mr. Vance Kemler General Manager, Solid Waste Services City of Denton 1527 S. Mayhill Road Denton, Texas 76208 Re: Proposal for Professional Services General Engineering Services Fiscal Year 2012 Dear Mr. Kemler, CP&Y, Inc. is pleased ta submit this scope and fee proposal to provide professional services to assist the City, as directed, with development, design and construction related services for various so�id waste projects during the fiscal year of 2012. Scope of Services • Assist the City, as directed, with the investigation, evaluation of alternatives and development of various solid waste projects, and general engin�ering services in support of the Solid Waste Department. • Assist with the preparation of, and support of, Permit Applications, Permit Modification, Permit Amendments, and Notifications to required Regulatory Agencies, as directed by the City, • Prepare Plan Documents, to include a site plan, structural, architectural, mechanical, electrical and plumbing design and details, as required, to facilitate securing bids for construction of selected solid waste related projects. • Prepare Technical Specifications associated with the design elements of the selected facilities. � Utilize City Standard Bid Documents and other Standard Specifications to govern the remainder of the constructian of the selected facilities. • Prepare complete sets of procurement documents for use by the City for selected projects. � Assist the City with soliciting and obtaining bids from Contractors for construction of the facilities. This would include answering questions related to the project, issuing bid addendums as needed for clarification, and attending a pre-bid conference and bid opening. 1820 Re�al Row, Suitc 200 Dallas, Texas 75235 214,638.U50U � 214.G38.3123 fax www.cpyi.eom 25 Page 1 oF 3 EXHIBIT 1 i Mr. Vance I<emler 9/1 A12011 � • • • Review the construction bids received and make recommendations for construction contract awards. • Review Contractor Submittals for conformance with the plans and specifications. � Make periodic visits to the site during construction io observe the construction activities for conformance with the plans and specifications. • Assist the City with the preparation of industry award submittals and technical presentations to be delivered at professional society meetings or conferences as these events occur and opportunity exists to gain State and National recognition of the City of Denton Landfill operations. Fee Estimate CP&Y, Inc. proposes to be compensated for per�orming the abave Sc�pe of Services on an hourly basis with the total fee amount not to exceed ONE HUNDRED THIRTY FIVE THOUSAND and no/� 00 DOLLARS ($135,000.00) without additional written authorization from the City. The Hourly Rates of personnel on the following page will be the basis for compensation through December 3'I, 2012 and will be re-evaluated at that time. Any changes in Hourly Rates at that Eime will be approved by the City prior to taking effect. We appreciate the opportunity to continue to assist the City of Denton with solid waste projects. If this proposal is satisfactory to the City, please prepare the necessary City Contract Documents for our review and signatures. Sincerely, CP&Y, Inc. �� .� ��,�,�.� Frank E. Pugsley, P.E. Project Manager CP&Y, (nc. Approval � � .� ��-�,,� ��Zo�� Mr. William R. Hindman, P.E. ' Date Principal CP&Y, Inc. 2s Page 2 of 3 � Mr. Vance Kemler � ��� ±j�� 9/14/2011 y Hourly Billing Rat�s CP&Y, Inc. 2012 1. CP&Y, Inc. will submit monthly invoices for services rendered, and the City will make prompt payments in response to the invoices. 2. CP&Y, Inc. will be reimbursed for services based upon the following hourly rates, plus reimbursement for other direct non-labor and subcontract costs at actual cost. Cateqory Biflinq Rate Per Hour Clerical/Administrative $35.00-65.0� Pac�e 3 of 3 Drafter/Technfcian Engineer in Training Project Engineer Senior Engineer Senior Associate Engineer P�incipal 27 $55.D0-95.00 $75,00-115.00 $95.00-150.00 $135,00-180.00 $170.00-215.00 $185.00-23�.OQ