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2012-221ORDINANCE NO. 2� 1 Z-221 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER BY AND BETWEEN THE CITY OF DENTON, TEXAS AND TEAGUE NALL AND PERKINS, 1NC. FOR SURVEYING SERVICES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE ($400,000 FOR PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER-FILE NO. 4948). WHEREAS, the City Council deems that it is in the public interest to engage the engineering firm of Teague Nall and Perkins, Inc. (TN&P), Denton, Texas to provide professional surveying and engineering services in support of the City of Denton, Texas; and WHEREAS, City staff has reported to the City Council that there is a substantial need for the above-referenced professional surveying 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 Architect or Engineer" (the "Agreement") with Teague Nall & Perkins, Inc. (TN&P), Denton, Texas, for professional surveying and engineering services, for a fee of not-to-exceed $400,000; in substantially the form of the "Agreement" that is attached hereto as Exhibit "A" and 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 TN&P and the demonstrated ability of TN&P 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. SECTION 5: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the � day of , 2012. 1 / , . ���'� .. . ; ..• t� . �. ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY i By: PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the � day of , 2012, by and between the City of Denton, Texas, a Texas rnunicipal co oration, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Teague Nall and Perkins, Inc., with its office at 1517 Centre Place Drive, Suite 320, Denton, Texas 76205, hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or engineer or surveyor, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, Indefinite Delivery Surveying Services Page 1 H:1Survey 3ervices\Contract 2012\TNP Surveying Agreement 091112.doc Revised 5-30-02 SECTION 2 COMPENSATION The Owner shall cornpensate the Design Professional as follows: 2.1 BASIC SERVICES 21.1 For Basic Services the total compensation shall not exceed $400,000 without additional authorization from the Owner. 2.1.2 Progress payments for Basic Services shall be paid at hourly reimbursable rates in accordance with Attachment `B' and `C' for services performed by the Design Professional, plus any direct cost reimbursable expenses. 2,2 REIlVIBURSABLE EXPENSES Reimbursable Expenses shall generally be a multiple of 1.10 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. Reimbursable expenses as agreed to between the Owner and Design Professional are described in more detail in Attachment `C'. SECTION 3 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: 1. Applicable portions of the City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. Attachments A through C. This Agreement is signed by the parties hereto effective as of the date first above written. Page 2 H:1Survey Services\Contract 2012\TNP Surveying Agreement 091112.doc Revised 5-30-02 ATT'EST: JE ER WALTERS, CIT SECRETARY r BY: APP OVED TO LEGAL FORM: ANITA BUBGE�. CIT� AT'F6RNEY : WITNESS: BY: � ���-� CITY OF DENTON , BY � - GE RGE C. C BELL CITY MANAGER Teague Nall�nd Perkins, � Page 3 �9a�1,� L l/� c H:\Survey ServiceslContract 20121TNP Surveying Agreement 091112.doc Revised 5-30-02 CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHTI'ECI' OR ENGINEER'S RESPONSIBILTfIES 1.1 The Architect or Enginee�s services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design ProfessionaP') 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 Profiessional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skIIl ordinarily exercised by members oF the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Caze"). The Services shall be performed as expeditiously as is consistent with the Degree of Caze necessary for the ordedy progress of the Project. Upon request of the Owner, the Design Professional shall submit for the Owne�'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 time required for the Owne�'s review and for approval of submissions by authorities havingjurisdiction 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 adjushnents to this schadule shall be mulually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 21 BASIC SERVICES DEFIlVED The Design ProfessionaPs Basic 5ervices consist of those described in Secdons 2.2 through 2.6 of these General Conditions and include without limitation normal shuctural, civil, mechanical and electrical engineering services and any other engineering services necessaty to produce a complete and accurate set of Conshuction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.21 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owne�s needs and to establish the requirements forthe Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owne�s program, construction schedule and consttuction budget reyuirements, each in terms ofthe other, subject to the limilarions set forth in Subsection 5.2.1, 2.2.3 The Design Professional shall review with the Owner altemafive approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Design Professional shall prepaze, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illushating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Constnaction Cost based on current area, volume or other unit costs and which indicates the cost of each category of work involved in consmicting the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of construction. 2.3 DESIGN DEVELOPMENT PHASE 2.3.1 Based on the approved Schematic Design Documents and any adjustrnents 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, structwal, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall wmply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owner's approval of the documents, Design Professional represents that the Documents and specifications 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 Construction Cost in a further Detailed Statement as described in Section 22.5. 2.4 CONSTRUCl'ION DOCUMENTS PHASE 2.4.1 Based on the approved Design Development Documents and any further adjushnents in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents co�sisting of Drawings and Speci6cations setting forth in detail requirements for the constniction of the Project, which shall comply with all applicable laws, 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 ofthe contract, and the form of Agraement between the Owner and contractor. 2.4.3 The Design Professional shall advise the Owner of any adjustrnents to previous preliminary estimates of Conshuction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Design Professional shall assist the Owner in connecrion with the Ownets responsibility for filing documents required for the approva] of govemmental authorities having jurisdiction over the Project. 2.5 CONSTUCTION CONTRACI' PROCUREMENT 2.51 The Design Professional, following ihe Owne�s approval of the Construction Documents and of the latest preliminary detailed estimate of Conslntction Cost, shall assist the Owner in procuring a construction conhact for the Project through any procurement method that is legally applicable to the Project including without Page 1 of 8 H:1Misc�Blank Forms\GENERAL CONDTTIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the conshuction contract is in the sole discrerion of the Owner. 2.5.2 If the construction 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 the Project submitted by the 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 modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construcrion wst set forth in tkie approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUCTION PHASE - ADMIlVISTRATION OF THE CONSTRUCPION CONTRACP 2.6.1 The Design ProfessionaPs responsibility to provide Basic Services for the Constcuction Phase under this Agreement commences with the award of the Conlract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless eaRended under the terms of 3ubsection 8.3.2. 2.6.2 The Design Professional shall provide detailed administration ofthe Contract for Conshuction as set forth 6elow. For design professionalss the administration shall also be in accordance with AIA document AZOl, 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 in the Agreement. For engineers the administration shall also be in accordance with the Standazd Specificarions for Public Works Constntction by the North Central Texas Council of Govemments, current as of the date of the Agreement, unless otherwise provided in the Agraement. 2.6.3 Conshuction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or e�ctended without written agreement ofthe 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 constmcNon, and (2) at the Owne�s direcrion from time to time during the correction, or warranty period described in the Contract for Conshuction. 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 instnunent. 2.6.5 The Design Professional shall observe the construction site at least one time a week, while constniction is in progress, and as reasonably necessary while construcrion is not in progress, to become familiar with the progress and quafity 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 informad of the progmss and quality of the work, and shall exercise the Degree of Caze and diligence in discovering and promptly reporting to the Owner any observable defe�ts or deficiencies in the work of Conhactor or any subcontractors. The Design Professional represents that he wil] follow Degi�ee of Care in perfomung all Services under the Agreement. The Design Professional shall promptly comect any defecHve designs or speciScations fumished by the Design Professional at no wst to the Owner. The Owne�s approval, acceptance, use of or payment for all or any part of the Design ProfessionaPs Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the Owne�s righis hereunder. 2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construcrion means, methods, techniques, saquences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractofs schedules or failure to carry out the work in accordance with the Contract Documents except insofaz as such failure may result from Design Professional's negligent acts or omis- sions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subconuactors, 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 communications have been specially suthorized, 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 Design Professional's observations at the site of the work and evaluarions of the Contracto�'s Applications for Payment, the Design Professional shall review and certify the amou�ts due the Conhactor. 2.610 The Design Professional's ceRification for payment shall constitute a representation to the Owner, based on the Design Professional's observations at the site as provided in 3ubsection 2.6.5 and on the data comprising the Contracto�s Application for Paymen� that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Conh�act Documents. The foregoing representations are subject to minor deviations from the Contract Documents cor- rectable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a CeRificate for Payment shall not be a representakion that the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Conlractor has used money previously paid on account of the Conhact Sum. 2.611 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 implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance 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 suthority shall give rise to a duty or responsibility of the Design Professional to the Conhactor, Subcontractors, material and equipment supplieis, their agents or employees or other pe�ons performing poRions of the work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractors submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) determining 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. 'Il�e 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 contractors, 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 quanrities or for substanriating instructions fur installation or performance of equipment or systems designed by the Conh-actor, all of which remain the responsibility of the Contractor to the extent requirad 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 perfonnance characteristics Page 2 of 8 H:1MisclBlank FormsIGENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 of materials, systems or equipment is required by the Conhact Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or aquipment will meet the performance criteria required by the Contract Docwnents. 2.613 The Design Professional shall prepare Change Ordeis and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.1.1 and 33.3, for the Owners approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving an adjustrnent in the Contract Sum or an extension of the Contiact 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 inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Cettificates of Substanrial and Final Completion. 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 requi�ments of the Contract Documents on written request of either the Owner or Contiactor. The Design Professional's response to such requests shall be made with reasonable promph�ess 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 interpretations 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 fiaith in accondance with all the provisions of this Agreement and in the absence of negligence. 2.6.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question beriveen the Owner and Conhactor re(ating 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 Agreement 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 aclmowledging payment by the Owner of any fees due, shall not be releasad from any rigltts 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 chenges to the Construction Documents during the Construction Phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 aze 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 described under Sections 32 and 3.4 shall only be provided if authorized or confianed in writing by the Owner. If services described under Contingent Additional Services in Section 33 are required due to cimumstances 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 Contingent Additional Services are not required, the Design Professional shall have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPR�SENTATION BEYOND BASIC SERVICES 3.2.1 If 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 additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design Professional. 3.3 CONTINGENT ADDITIOIVAL S�RVICES 3.31 Making material revisions in Drawings, Specifications or other documents when such revisions aze: 1. inwnsistent with approvals or inshuctions previously given by the Owner, including revisions made necessary by adjustruents in the Owners program or Project budget; 2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such docwnents, or 3. due to changes required as a result of the Owne�s failure to nender decision in a timely manner. 3.3.2 Providing ser�ices rac�uired because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owne�s schedule, except for services required under Subsectian 2.5.2. 3.3.3 Preparing Drawings, Specifications and other docutnentation and suppoRing data, and providing other services in connection with Change Orders and Consiruction Change Directives. 3.3.4 Providing consultation conceming replacement of work daznaged by fire or other cause during construction, and fiunishing 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 of either the Owner or Contractor under the Contract for Construction. Page 3 of 8 H:uvIisclBlank Forms\GENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 3.3.6 Providing services in evaWating an e�ctensive 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, azbitration proceeding or legal proceeding except where the Design Professional is party thereto. 3.3.8 Providing services in addition to those required by Article 2 for preparing documents for altemate, separate or sequerrtial bids or providing services in connection with bidding or conshuction prior to the completion of the Conshuction Documents Phase. 3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contiary, 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 3.3.9. 3.4 OPTIONAL ADDTl'IONAL SERVICES 3.41 Providing financial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or compararive studies of prospecrive sites. 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 relative to future facilities, systems and equipment. 3.4.5 Providing services to investigate existing conditions or ficilities or to make measured drawings thereof. 3.4.6 Providing services to verify the accucacy of drawings or other information fiunished by the Owner. 3.4.7 Providing coordination of conshuction 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 yuantity 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 e�cisting facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training pecsonnel for operation and maintenance and consultation during operation. 3.4.13 Providing interior design and similaz services required for or in connection with the selection, procurement or installation of fumiture, fumishings and related equipment. 3.4.14 Providing services other than as provided in Secfion 2.6.4, after issuance to the Owner of the fina] Certificate for Payment and expiration of the Warcauty period of the Contract for Constmction. 3.4.15 Providing services of consultants for other than architeclu�al, civil, stnxctural, mechauical and electrical engineering portions of the Project provided as a part of Basic 3ervices. 3.4.16 Providing any other services not otherwise included in this Agreement or not customarily fumished in accordance with generally accepted architectura] practice. 3.4.17 Preparing a set of reproducible mco� drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work made during con- struction based on marked-up prints, drawings and other data fumished by the Conlractor to the Design Professional. 3.418 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions 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 Subsecdon 3.4. ] 8. ARTICLE 4 OVVNER'S RESPONSIBILTTIES 4.1 The Owner shall consult with the Design Professional �garding requirements for the Project, including (1) the Owne�s objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site mquirements, as more speci- fically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Conshuction Cost, the Owne�'s other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Design Professional, the Owner shall fumish evidence that financial arrangements have been made to fulfill the Owne�s obligations under this Agreement. Page 4 of 8 H:u41isc1Blank Forms\GENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 4.4 The Owner shall designate a representative authorized to act on the Owne�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 uiueasonable delay in the ordedy and sequendal progress of the Design Professional's services. 4.5 Where applicable, the Owner shal] furnish surveys describing physical characteristics, legal ]imitations and urility locaUons 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 street�, alleys, pavements and adjoining properiy and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, wning deed restrictions, boundaries and contouts of the site; locations, dimensions and necessary data pertaining to e�cisting buildings, other improvements and trees; and information conceming available urility services and lines, both public and private, above and below grade, including inverts and depths. All the infoanation on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall fumish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and re- sistivity tests, including necessary operations for anticipa6ng sub-soil conditions, with repo�ts and appropriate pmfessional 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 are requested 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 shall fumish s�uchual, 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 fiunis�i all legal, accounring and insuravice counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contracto�'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 Ownets eacpense, 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 notice to the Design Professional ifthe 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 Professional's consultants and shall submit such to the Owner for review and approval at least fourtcen (14) days prior to execution. The Owner agrees not to request certifications that would require lmowledge ar services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Ovmer of all elements ofthe Project designed or specified by the Design Professional. 51.2 The Conslruction Cost shall include the cost at current market rates of labor and materials fumished by the Owner and equipment designed, speci8ed, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Conhactofs overhead and profit. In addition, a reasonable allowance for con- tingencies shall be included for mazket conditions at the time of bidding and for changes in the work during construction. 5.1.3 Construction Cost does not include the compensation of the Design Professional and Design 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 RESPONSIBILTTY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owne�s Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiaz with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Conlracto�'s methods of determining bid prices, or o�er competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warraut or represent that bids or cost proposals will not vary from the Owners 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 condirion of the Agrcement by the fumishing, proposal or establishment of a Project budget, unless such fixed ]imit has been agreed upon in rvriting and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjusanents in the scope of the Project and to include in the Contract Documents altemate bids to adjust the ConshucNon Cost to the fixed limit. Fixed limits, if any, shall be i�creased in the amount of an increase in the Conhact Sum occurring after execution of the Contract for Conshuction. 5.2.3 If the Procurement Phase has not commenced witiv� 90 days after the Design Professio�al submits the Conshvction 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 Construcrion Documents to the Owner and the date on which proposals are sought. ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS 6.1 The Drawings, Specifications snd other documents prepared by the Design Professional for tivs Project are inshvments 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 aze specified in the Agreement, the Design Professional is released from any and all liability relating to their use in that project Page 5 of 8 H:�Ivlisc�Bla�k FormsIGENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 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 ofthe Design Professional's reserved rights. ARTICLE 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 Agneement or any phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed undu the Agreement shall cease immediately upon Design Professional's receipt of such notice. 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 be�ome properly of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently conhact with a new Design Professional for continuarion of services on the Project, Design Professional shall coopeiate 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 Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumprion 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 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 notice. 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non- performance and cause for 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 properiy and satisfactorily performed prior to termination. ARTICLE S PAYIVIENTS TO Tf� DESIGN PROFESSIONAL 81 DII2ECT PERSONNEL EXPENSE 8.1.1 Dia;ct Personnel Expense is de8ned as the direct salaries of the Design ProfessionaPs 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 REIlVIBURSABLE EXPEl�1SES 8.2.1 Reimbursable Expenses are 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. 8.2.1.1 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 havingjurisdiction over the Project. 8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specifications and other documents. 8.21.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regulaz rates. 8.21.4 Expense of renderings, malels and mock-ups rec{uested by the Owner. 8.2.1.5 Expense of computer-aided design and drafting equipment time when used in connecNon with the Project. 8.2.1.6 Other enpenses that a� approved in advance in writing by the Owner. 8.3 PAYMENTS ON ACCOUNI' OF BASIC SERVICE5 8.31 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 8.3.2 If and to the extent tUat the time inirially established in the Agreement is excceded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time shall be computeci in the manner set forth in Section 2 of the Agreement. 8.3.3 When compensation is based on a pereentage of Construction Cost and any portions of the Project aze deleted or otherwise not consuucted, compensation for those poctions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 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 Consuuction Cost for such portions ofthe Pmject. 8.4 PAYNI�NTS ON ACCOUNT OF ADDTTIONAL SERVICES Page 6 of 8 H:�IviisclBlank FormsIGENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 8.4.1 Payments on account of the Design ProfessionaPs Additional Services and for 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 e�cpenses incuned. 8.5 PAYMENTS WTTHEIELD No deductions shall be made from the Design ProfessionaPs 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. ARTICLE 9 INDENINITY 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 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 liabiliry to any person who is not a party to the Agreement, and nothing herein shall waive any of the perties' 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 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 5tate of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at ]east 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 property damage limits of not less than $100,000 for each occurrence and not less than $250,000 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 properry damage limits of not less than $100,000 for each accident. 10.3 Worker's Compensation Insurance in acwrdance 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 fumish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this 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 11 NIISCELLANEOUS PROVISIONS 11.1 The Agezment shall be govemed by the laws of the 5tate 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 partne�s, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representa6ves 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 Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument 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 ofthese documenis 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. Altachmeots referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal 11.4 Nothing contained in the Ageement shall create a coniractual relationship witt� or a cause of action in favor of a third party against either the Owner or Design Professional. ll.5 Upon receipt of prior written approval of Owner, the Design Professiona] shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Design ProfessionaPs promotional and professional materials. The Design Professional's materials shall not include the Owne�s confidential or proprietary infoRnation if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi- dendal or proprietary. The Owner shall provide professional credit for the Design Professional on the constntction sign and in the promotional materials for the Project. __ 11.6 Approval by the Owner shal] 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. Page 7 of 8 H:1Misc�Blank Forms\GENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 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, ceRified 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. 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 stricken 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, seac, national origin or ancestry, age, or physical handicap. 11.11 The caprions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. Page 8 of 8 H:�IvlisclBlank Forms\GENERAL CONDIITONS-ARCHI'PECT-ENGIIVEER Revised 052209.doc Revised 5-30-02 ATTACHMENT `A' SCOPE OF BASIC SERVICES The scope of Basic Services for this project generally consists of professional suroeying services in support of the City of Denton (Owner) as administered by the City of Denton Utility and CIP Engineering department. Services will be on an indefinite delivery basis for specific tasks or projects as requested by City staff. The total amount of work is undetermined and may be limited by the total maximum compensation indicated in Section 2, Compensation, of the Professional Services Agreement. Specific tasks may include the following: • Construction staking • Fie1d design surveys • Topographic surveys • Boundary surveys and analysis • Preparation of easement or right-of-way exhibits • GPS monument placement • Other professional surveying services as requested All survey services will be performed under the direct supervision of a Registered Professional Land Surveyor (RPLS) licensed to practice in the State of Texas. The Design Professional will seal all boundary surveys and other documents requiring the seal of an RPLS. All surveying services will meet or exceed the minimum standards of practice established by the Texas Board of Professional Land Surveyors. In addition to field crew(s), the Design Professional will provide the services of an RPLS and/or survey technician to support the field crew, both to prepare materials prior to field work and to compile, analyze or map the information gathered by the field crew or to othenivise prepare the work of the field crew for delivery to the Owner. PROCEDURE A representative of the Owner will provide the Design Professional with a written Survey Request Form. This request will provide a minimum of forty-eight (48) hours notice of the need for specific services and will outline briefly the nature of the work to be provided along with the necessary timeline. If the Design Professional is unable to meet the required schedule, he will notify the Owner within twenty-four (24) hours so that other provisions or a revised schedule can be arranged. Once the Design Professional has reviewed the preliminary information provided with the Survey Request Form and has agreed to accept the specific assignment as detailed, the Owner will provide detailed information, including written instructions, construction plans or drawings, deeds, sketches, electronic drawing files, or any other information necessary to complete the assignment. Upon review of the detailed information, the Design Professional will provide an estimate of the effort and/or cost of services to the Owner's designated representative. Upon completion of the work, the Design Professional will provide electronic files, plots, maps, exhibits, field notes, point files, and/or other materials as requested by the Owner. Deliverables will be produced and transmitted to the Owner using standards established and set forth by the City of Denton Utility and CIP Engineering department. H:\Survey Services\Contract 20121Attachment A.doc ExhibitA—Page 1 ATTACHMENT `B' SCHEDULE OF FEES A. BASIC SERVICES: For work performed by the Design Professional within the scope identified in Attachment A, Scope of Basic Services, the Design Professional will be reimbursed as described below: Labor Design Professional shall be reimbursed on the basis of negotiated fees for each item of service provided, as mutually agreed to by the Design Professional and the Owner, or on the basis of labor of personnel employed by the Design Professional on an hourly basis in accordance with ATTACHMENT `C', Standard Rate Schedule for Reimbursable/Multiplier Contracts. 2. Direct Expenses Direct expenses, such as printing, reproductions, delivery/courier services, etc. will be reimbursed to the Design Professional at his direct invoice expense times a multiplier as set forth in Attachment `C'. Where appropriate, a not-to-exceed amount will be established and agreed to for each item of service provided. H:1Survey Services\Contract 20121Attachment B.doc Exhibit B — Page 1 Attachment `C' TEAGUE NALL AND PERKINS, INC. City of Denton Indefinite Delivery Survey Contract 2012-2013 Principal Survey Manager Registered Professional Land Surveyor S.I.T. / Senior Survey Technician Survey Technician 1-Person Field Crew w/Equipment** 2-Person Field Crew w/Equipment** 3-Person Field Crew w/Equipment** 4-Person Field Crew w/Equipment"* Flagger Abstractor (Property Deed Research) Clerical Subsurface Utilitv Enaineerin SUE Engineer Sr. Utility Location Specialist Utility Location Technician 1-Person Designator Crew w/Equipment 2-Person Designator Crew w/Equipment 2-Person Vacuum Excavator Crew w/Equipment SUE QL-A Test Hole (� < 4 ft)**" SUE QL-A Test Hole (>4 < 6 ft)*** SUE QL-A Test Hole (>6 < 8 ft)*** SUE QL-A Test Hole (>8 < 10ft)*"* SUE QL-A Test Hole (>10 < 12ft)*** SUE QL-A Test Hole (>12 < 14ft)"*" Direct Cost Reimbursables Photocopies, Scans & PDF Files: $170 $155 $140 $95 $85 $110 $125 $145 $165 $40 $85 $50 $160 $ 95 $ 75 $115 $135 $250 $900 $1,100 $1,310 $1,530 $1,770 $2,000 Hourlv Rate - $230 Per Hour Per Hour Per Hour Per Hour Per Hour Per Hour Per Hour Per Hour Per Hour Per Hour Per Hour Per Hour Hourlv Rate (Travel and Stand-by) per hole per hole per hole per hole per hole per hole $0.10lpage letter and legal size bond paper, B&W $0.20/page 11" x 17" size bond paper, B&W $1.00/page letter, legal and 11" x 17" size bond paper, color $2.00/page 22" x 34" and larger bond paper or vellum, B&W $4.00/page 22" x 34" and larger bond paper or vellum, color Plots: � $1.00/page 11" x 17" size bond paper, B&W $2.00/page 11" x 17" size bond paper, color $4.00/page 22" x 34" and larger bond paper or vellum, B&W $6.00/page 22" x 34" and larger bond paper or vellum, color $6.00/page 22" x 34" and larger mylar or acetate, B&W Mileage $0.55/mile All Subcontracted and outsourced services shall be billed at rates comparable to TNP's billing rates shown above. � Rates shown are for calendar year 2012 and are subject to change in subsequent years. "" Equrpment includes Truck, ATV, Robotic Tota! Sfation, GPS Units and Digital Level. "** Pricing includes 2-Person crew, designating for excavation, vehicle costs, and field supplies.