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2012-222 %(+$1$%$1$-"$%.1, 2012222 AdditionalFileExists AdditionalFileContainsRecordsNotPublic,AccordingtothePublicRecords Act Other %(+$2#§º«(´¯º¯§²¹ FirstAmendmentKOrdinanceNo.201316807/09/13JR ORDINANCE NO. 2012-222 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH CP&Y, INC. AND THE CITY OF DENTON SOLID WASTE DIVISION FOR PROFESSIONAL ENGINEERING AND CONSULTING SERVICES; AND PROVIDING AN EFFECTIVE DATE (FILE 5045- AWARDED TO CP&Y, INC. IN THE AMOUNT OF $135,000). WHEREAS, the City Council deems that it is in the public interest to engage the engineering firm of CP&Y, Inc., Dallas, Texas to provide professional engineering consulting services for the City of Denton, Texas that are related to the Denton Solid Waste Division; and WHEREAS, the Public Utility Board of Denton considered this item at its August 27, 2012 meeting and recommended approval by a vote of 5-0; and WHEREAS, City staff has reported to the City Council that there is a substantial need for the above-referenced professional engineering services, and that limited City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: The preamble to this ordinance is incorporated herewith by reference as a part of this ordinance. SECTION 2: The City Manager is hereby authorized by the City Council to execute a"Professional Services Agreement for Engineering Firm" (the "Agreement") with CP&Y, Inc., Dallas, Texas, for professional engineering and design services related to professional services necessary for the Solid Waste Division, for a fee of not-to-exceed $135,000; in substantially the form of the "Agreement" that is attached hereto which is incorporated herewith by reference. SECTION 3: The award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of CP&Y, Inc. and the demonstrated ability of CP&Y, Inc. to perform the services needed by the City for a fair and reasonable price. SECTION 4: The expenditure of funds as provided in the attached Agreement is hereby authorized. 1 SECTION 5: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the � day of , 2012. ATTEST: JENNIFER WALTERS, ITY SECRETARY By: APPR VED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � By: . 3-ORD-File 5045 � " ' " ��...,.''1 � . . � .. � � . �. THE STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING FIRM FILE 5045 THIS AGREEMENT is made and entered into as of the �` y , �� —da of ' 2012 by and between the City of Denton, Texas, a Texas municipal corporation, ith its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and the iirm of CP&Y, Ina (hereafter "CP&Y), with its corporate office at 1820 Regal Row, Suite 200, Dallas, Texas 75235, hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives and officers. 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 August 1, 2012, limited to those tasks described therein in Exhibit A—"Proposal for Professional Services — General Engineering Services;" and 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 Time is of the essence in this Agreement. Design Professional shall begin work irnmediately 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 Department 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. PSA 5045 Page 1 3.1.1 For Basic Seroices the total compensation including reimbursable expenses shall be not to exceed $135,000 based on the hourly rates for services 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 Services 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, 2013), and to be re-negotiated thereafter: 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 Training $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 auy 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. 33 REIMBURSABLE EXPENSES. Reimbursable Expenses shall be a multiple of 1.0 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. Exhibit "A" — Proposal for Professional Services — General Engineering Services - Fiscal Year 2012 (Letter to Vance Kemler, General Manager, Solid Waste Department dated August 1, 2012) 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 Agreernent documents, the inconsistency or conflict shall be resolved by giving precedence to PSA 5045 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 first above written. "OWNER" CTTY OF DENTON, TEXAS A Texas Municipal Corporation By: / i �—` G OR E C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY : TA BURGESS, CITY ATTORNEY > "DESIGN PROFESSIONAL" CP&Y, INC. A Texas Corporation � f. By. �' �,/��1 ' l� . � WIL,LIAM R. HINDMAN, P.E. Its Vice President WITNESS: By: —�„� _ PSA 5045 Page 3 CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "AgreemenY') and proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of the same pmfession cunently pracricing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care"). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project. Upon request of the Orvner, the Design Professional shall submit for the Owner's appmval a schedule for the performance of the Services which may be adjusted as the Project pmceeds, and shall include allowances for periods of time requued for the Owner's review and for approval of submissions by authorities having jurisdiction over the 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 21 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Sections 2.2 through 2.6 of these General Condirions and include without limitarion normal structural, civil, mechanical and elecMcal engineering services and any other engineering services necessary to produce a complete ar�d accurate set of Conshuction Documents, as described by and required in Secrion 2.4. The Sasic Services may be modified by the Agreement. 2.2 SCHEMATTC DESICN PHASE 2.21 The Design Professional, in consultation with the Owner, shall develop a written prograui for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shal] provide a preliminary evaluation of the Owner's program, construction schedule and constntction budget requirements, each in terms of the other, subject to the limitations set forth in Subsection 5.2.1. 2.2.3 The Design Professional shall review with the Owner altemative approaches to design and conshucHon of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and conshuction budget requirements, the Design Professional shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project wmponents. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regularions. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Conshuction Cost based on current area, volume or other unit costs and which indicates the cost of each category of work involved in conshucting the Project and establishes an elapsed rime factor for the period of time from the commencement to the completion of construction. 23 DESIGN DEVELOPMENT PHASE 2.31 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notrvithstanding Owner's approval of the documents, Design Professional represents that the Documents and specificarions will be sufficient and adequate to fulfill the purposes of the Project. 2.3.2 The Design Professional shall advise the Owner of any adjushnents to the preliminary estimate of Construcfion Cost in a further Detailed Statement as described in Section 2.2.5. 2.4 CONSTRUCTION DOC[1MENTS PHASE 2.4.1 Based on the approved Design Development Documents and any fitrther adjustments in the scope or quality of the Project or in the conslrucrion budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Consh-uction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regularions. PSA 5045 Page 4 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 Condirions of the contract, and the form of Agreement between the Owner and contractor. 2.4.3 The Design Professional shall advise the Owner of any adjushnents to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market condirions. 2.4.4 The Design Professional shall assist the Owner in connecrion with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Pmject. 2.5 CONSTRUCTION CONTRACT PROCUREMENT 2.51 The Design Professional, following the Owner's approva) of the Conshuction Documents and of the latest preliminary detailed estimate of Conshuction Cost, shall assist the Owner in procuring a conshuction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the construction contract is in the sole discretion of the Owner. 2.5.2 If the construcfion contract amount for the Project exceeds the total construc6on cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole wst and expense, will revise the Construction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total conshuction cost set forth in the approved Detailed Statement of Probable Construcrion Costs. 2.6 CONS'I`RUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and temrinates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 83.2. 2.6.2 The Design Prufessional shall provide detailed administration of the Contract for Conshuction as set forth below. For design professionalss the administration shall also be in accordance with AIA document A201, General Conditions 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 'm the Agreement. For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Conshuction by the North Central Texas Council of Govemments, current as of the date of the Agreement, unless othenvise provided in the Agreement. 2.6.3 Construcrion Phase duties, responsibilities and limitations of authority of the Design Professional shall not be resMcted, modified or extended without written agreement of the Owner and Design Professional. 2.6.4 The Design Professional shal] be a representative of and shall advise and consult with the Owner (l) during conshuction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Conshucrion. The Design Professional shall have authority to act on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument. 2.6.5 The Design Professional shall observe the conshuction site at least one time a week, while construction is in pmgress, and as reasonably necessary while conshuction 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 observadons the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Contractor or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any defective designs or specifications fitmished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or payment for all or any 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 hereunder. 2.6.6 The Design Professional shall not have conh-ol over or charge of and shall not be responsible fior constntcrion 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 Contractor's schedules or failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Pmfessional's negligent acts or omissions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all rimes 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 communications have been 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. PSA 5045 Page 5 2.6.9 Based on the Design Pmfessional's observations at the site of the work and evaluations of the Contractor's Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall consritute a representation to the Owner, based on the Design Professional's obser- vations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the wark has progressed to the point indicated and that the quality of the Wark is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Design Pmfessional. The issuance of a Certificate for Payment shall fizdher constihtte a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, ar(2) ascertained how or for what purpose the Contractor has 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 Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementarion of the intent of the Contract Documents, the Design Pmfessional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Conhact 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 Conh�actor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work. 2.612 The Design Professional shall review and approve or take other appropriate acrion upon Contractar's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) deteimining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when completed, will be in compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to pemut adequate review. Review of such submittals is not conducted for the purpose of detennining the accuracy and completeness of ott�er details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor 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 construction means, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be enritled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 2.6.13 The Design Professional shall prepare Change Orders and Coustntcfion Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 31.1 and 3.33, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving an adjushnent in the Contract Sum or an extension of the Contract Time which are not inwnsistent with the intent of the Contract Documents. 2.614 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Complerion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Complerion. The Design Professional will receive and review written guarantees and related documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Design Professional shall interpret and provide recommendations on matters conceming performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable prompmess and within any time 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 interpretarions and initial decisions, the Design Professional shall endeavor to secure faithful 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. 2.6.17 The Design Pmfessional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents. 2.618 The Desi� Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepares; 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 Agreement or diminish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Constntction Documents during the Conshucfion Phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAI. PSA 5045 Page 6 311 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 addidon to the compensarion for Basic Services. The services described under Secrions 3.2 and 3.4 shall only be pmvided if authorized or confirmed in writing by the Owner. If services described under Conringent Additional Services in Section 33 are required due to ci�umstances 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 wriring that all or part of such Contingent Additional Services aze not required, the Design Professional shall have no obligarion to provide those services. Owner will be responsible for compensating the Design Professional for Con6ngent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECI' REPRESENTATION BEYOND BASIC SERVICES 3.21 ff more extensive representation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such addirional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be com- pensated therefor as agreed by the Owner and Design Professional. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: 1. inconsistent with approvals or instrucrions previously given by the Owner, including revisions made necessary by adjushnents in the Owner's program or Project budget; 2. required by the enactment or revision of codes, laws or regulations subsequent to the prepararion of such docutnents, or 3. due to changes required as a result of the Owne�'s failure to render decision in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including, but not limited tq size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. 3.3.4 Providing consultation conceming replacement of work damaged by fire or other cause during construction, and fumishing services required in connecrion 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 of either the Owner or Contractor under the Contract for Conshuction. 3.3.6 Pmviding services in evaluating an extensive number of claims submitted by the Contractor or others in connecrion with the work. 3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto. 3.3.8 Providing services in addition to those requued by Article 2 for preparing documents for altemate, separate or sequential bids or providing services in connection with bidding or construcrion prior to the completion of the Conshuction Documents Phase. 3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these Genera] Conditions to the contrary, all services described in flvs Article 3 that are 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 pad of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not l'unit the Design Professional's ohligarions under this Subsection 3.3.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing financial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites. 3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authoriries or others having jurisdiction over the Pmject. 3.4.4 Providing services relative to future facilities, systems and equipment. PSA 5045 Page 7 3.4.5 Pmviding services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4.6 Providing services to verify the accuracy ofdrawings or other information fumished by the Owner. 3.4.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.9 Providing analyses of operating and maintenance costs. 3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilizafion of equipment ar systems such as testing, adjusting and balancing, preparation of operafion and maintenance manuals, training personnel for operation and maintenance and consultation during operation. 3.4.13 Providing interior design and sunilar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 3.414 Providing services other than as pmvided in Section 2.6.4, after issuance to the Owner of the final CertiBcate for Payment and expiration of the Warranty period of the Contract for Conshuction. 3.4.15 Providing services of consultants for other than architectural, civil, shuctural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.416 Providing any other services not othenvise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. 3.4.17 Preparing a set of reproducible record drawings in addition to those required by 3ubsection 2.6.19, showing significant changes in the work made during construction 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 Genera] Condirions to the contrary, 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 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 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 RESPONSIBILII'IES 41 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more specifically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 lf reGuested by the Design Professional, the Owner shall fumish 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 manner 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. 4.5 Where applicable, the Owner shall fumish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and shvctures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restricrions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; ar►d 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 shal] be referenced to a project benchmazk. 4.6 Where applicable, the Owner shall fumish the services of geotechnical engineets when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, detenninations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resisrivity tests, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendarions. PSA 5045 Page 8 4.61 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Design Professional and are not retained by the Design Pmfessional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall furnish shuctural, mechanical, chemical, air and water pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessaxy at any time for the Project, including auditing services the Owner may require to verify the Contractor'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, informarion, surveys and reports required by Owner under Secrions 4.5 through 4.8 shall be fumished at the Owner'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 nofice to the Design Professiona] if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Pmfessional's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execurion. The Owner agrees not to request certificafions that would require knowledge or services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTTON COST 5.1 CONSTRUCTION COST DEFINED 5.11 The Conshucrion Cost shall be the total cost or esrimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 51.2 The Construcfion Cost shall include the cost at current market rates of labor and materials fumished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at tl�e time of bidding and for changes in the work during construclion. 5.1.3 Conshuction Cost does not include the compensarion of the Design Pmfessional and Design Professional's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBII.ITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed esrimates of Construction Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction indushy. It is recognized, however, that neither the Design Pmfessional nor the Owner has control over the cost of labor, materials or equipment, over the Con- tractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted to include conringencies for design, bidding and price escalation, to detem�ine what materials, equip- ment, component systems and types of conshuction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Conh-act Sum occurring after execution of the Contract for Construcdon. 5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construc6on Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. ARTICLE 6 OVVNERSHIP AND USE OF DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are inshtunents 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 expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design Professional is released from any and all liability relating 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. PSA 5045 Page 9 AR'I`ICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 71 The Design Professional may ternunate the Agreement upon not less than thirty days written norice 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 thereof with or without cause upon thirty (30) days prior written nodce to the Design Professional. All wark and labor being performed under the Agreement shall cease immediately upon Design Professional's receipt of such norice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it sarisfactorily performed prior to the receipt of such notice. No amount 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 ternunation of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a new Design Professional for continuarion of services on the Project, Design Professional shall cooperate in providing information. 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 ProfessionaPs compensation shall be equitably adjusted to provide for expenses incurred in the intenuption and resumption of the Design Professional's services. 7.3 The Agreement may be tetminated by the Owner upon not less than seven days written notice to the Design Professional 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 norice. 7.4 Failure of the Owner to make payments to the Design Professional for work sarisfactorily completed in accordance with the Agreement shall be considered substantial nonperformance and cause for temunation. 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 terminarion not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to temunation. ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL 81 DIRECT PERSONNEL EXPENSE 81.1 Direct Personnel Expense is defined as the d'uect salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Expenses are in addirion to compensation for Basic and Additional Services and indude expenses incurred by the Desigi Professional and Design Professional's employees and consultants in the interest of the Project, as identified in the following Clauses. 8.211 Expense of transportation in connecfion with the Project; expenses in connec6on with authorized out-of-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.21.2 Expense of reproductions (except the reproducrion of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specificarions 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 Expense of renderings, models and mock-ups requested by the Owner. 8.2.1.5 Expense of computer-aided design and drafting 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, where applicable, shall be in proportion to services performed withi�t 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 shall be computed in the manner set forth in Section 3 of the Agreement. PSA 5045 Page 10 8.3.3 When compensation is based on a percentage of Construcrion Cost and any portions of the Project are deleted or othenvise not constructed, compensarion for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 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 Construcrion Cost or detailed esrimate of Construction Cost for such portions of the Project. 8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 8.41 Payments on account of the Design Professional's Additional Services and far Reimbursable Expenses shall be made monthly within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred. 8.5 PAYMENTS WITHHELD 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 other than those for which the Design Professional is responsible. 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner ar Owner's authorized representarive records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. ARTICLE 9 INDEMNITY 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, 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 governmental immunity, which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE 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 3tate lnsurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: 10.1 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 property damage limits of not less than $100,000 for each occunence and not less than $25Q000 in the aggregate. 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 10.3 Worker's Compensation Insurance in accardance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with tlus Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the 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, fumish Owner with substitute certificates of insurance meeting the requirements of this Article 10. ARTICLE ll MISCELLANEOUS PROVISIONS ll1 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 Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to a11 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 indudes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all PSA 5045 Page 11 prior negotiarions, representations or agreements, either written or oral. The Agreement may be amended only by written inshument signed by both Owner and Design Professional. When interprering the Agreement the executed Agreement, Pmposal, these General Conditions and the other attachments referenced in Secrion 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: l. The executed Agreement 2. Attachments referenced in Secrion 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 contractual relationship with or a cause of acrion in favor of a third party against either the Owner or Design Professional. 11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Pmject, including photographs of the exterior and interior, among the Design Professional's promorional and professional materials. The Design Professional's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project. 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design 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 mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless othenvise 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. 11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdiction 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. In such event, the parties shall reform the Agreement to replace such sh-icken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended 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, national origin or ancestry, age, or physical handicap. 1111 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. PSA 5045 Page 12 CONFLICT OF INTEREST QUESTION FORM CIQ For vendor or other erson doin business with local overnmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person Date Received who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. � Name of person who has a business relationship with local governmental entity. � � � �^ C� 2 � Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7�h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. �Q,��'L - i� Name o Officer This section, (item 3 including subparts A, B, C& D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by 5ection 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? � � 0 Yes 0 No �� B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes 0 No �/� C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 90 percent or more? � 0 Yes 0 No ���1 ( D. Describe each affiliation or business relationship. N � 4 / � � , �% � ��",, C ^ -.�.°�/s� �'c,Q �����c:,�f ��/ �1fji- Signature of person doing business with the governmental entity �Date PSA 5045 Page 13 • �� • • August 1, 2012 Mr. Vance Kemler PSA 5045 Exhibit A Purtners for a Belter Quality of Life 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 2013 Dear Mr. Kemler, CP&Y, Inc. is pleased to 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 solid waste projects during the fiscal year of 2013. Scope of Services � Assist the City, as directed, with the investigation, evaluation of alternatives and development of various solid waste projects, and general engineering 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 construction 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 facili#ies. 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. 1II2D Regal Raw, Suite 2D0 Dallas, Tex�s 75235 214.638.0500 • 214.638.3723 fax www.cpyi.com Page 1 of 3 PSA 5045 Exhibit A Mr. Vance Kemler � � f3/1/2012 l • 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 to 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 performing the above Scope of Services on an hourly basis with the total fee amount not to exceed ONE HUNDRED THIRTY FIVE THOUSAND and no/100 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 31, 2013 and will be re-evaluated at that time. Any changes in Hourly Rates at that time 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. �� � f��� � ��. Frank E. Pugsley, P.E. Project Manager CP&Y, Inc. Approval � �� � �/�% ��%����., ;- ./,�� �/r�����•(� / 1����� Mr. William R. Hindman, P.E. Date Senior Vice President CP&Y, Inc. Page 2 of 3 PSA 5045 Exhibit A � ��� � Mr. Vance Kemler 8/1 /2012 Hourly Billing Rates CPB�Y, Inc. FY 2013 1. CP&Y, Inc, will submit monthly invoices for services rendered, and the City will make prompt paymenls 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 Billinq Rate Per Hour Clerical/Administrative Drafter/Technician Engineer in Training Project Engineer Senior Engineer Senior Associate Engineer Principal Page 3 of 3 $35.00-65.00 $55.00-95.00 $75.00-115,00 $95.00-150,00 $135.00-180.00 $170.00-215.00 $185.00-230.00