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21-1069ORDINANCE NO. 21-1069 AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL CORPORATION. AUTHORIZING THE CITY MANAGER, OR THEIR DESIGNEE, TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH TRC ENGINEERS, INC., FOR THE ADMINISTRATION OF COMMUNICATION COMPANIES REQUESTS TO ATTACH WIRED AND WIRELESS JOINT USE SERVICES TO CITY OF DENTON INFRASTRUCTURE, AS SET FORTH IN THE CONTRACT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFQ 7328 - PROFESSIONAL SERVICES AGREEMENT FOR ADMINISTRATION SERVICES AWARDED TO TRC ENGINEERS, INC., FOR ONE (1) YEAR, WITH THE OPTION FOR FOUR (4) ADDITIONAL ONE (1) YEAR EXTENSIONS, IN THE TOTAL FIVE (5) YEARNOT-TO-EXCEED AMOUNT OF $50,000.00). WHEREAS, TRC Engineers, Inc., the professional services provider (the “Provider”) set forth in this ordinance, is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with, and not higher than, the recommended practices and fees published by the professional associations applicable to the Provider’s profession, and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDArNS: SECTION 1. The City Manager, or their designee, is authorized to enter into the professional service contract attached hereto with TRC Engineers, Inc., for the administration of wired and wireless joint use services to the City of Denton. SECTION 2. The City Manager, or their designee, is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under this ordinance to the City Manager of the City of Denton, or their designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. *..„„Fb',T;iTX ”g TiP= ''d'-’"" following vote n - O made by '---- JtBe axv i<) and ' The ordinance was passed and approved by the Aye Nay Abstain Absent Mayor Gerard Hudspeth: Vicki Byrd, District 1 : Brian Beck, District 2: Jesse Davis, District 3 : Alison Maguire, District 4: Deb Annintor, At Large Place 5 : Paul Meltzer, At Large Place 6: ./ \/ ./ \/ J/ J J PASSED AND APPROVED this the &tb day of -al/ W_, 2021. bb ATTEST: ROSA RIOS, CITY SECRETARY \\It IIlIIe ==nIH=>d/2 a?/ APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY Digitally sIgned by MaKella Lunn DN: dc=com, dc=cityofdenton, dc=codad, ou=Department Users and Groups. ou=General Government, ou=Legal, cn=MaKella Lunn, DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F DENTON Docusign City Council Transmittal Coversheet PSA 1 7328 File Name I JoInt Use servIces P„„h„i„g C,.tact Ch'i ; t' ch'1' tl; " City Council Target Date JUNE 8 ’ 2021 Piggy Back Option Contract Expiration Ordinance Not Appllcab1 e 3UNE 8, 2026 21-1069 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F CITY OF DENTON, TEXAS STANDARD AGREEMENT FOR ENGINEERING RELATED PROFESSIONAL SERVICES This AGREEMENT is between the City of Denton, a Texas home-rule municipality ("CITY"), and TRC Engineers, Inc., with its corporate office at 1430 Broadway, 10th Floor, New York, NY 10018 and authorized to do business in Texas, ("ENGINEER"), for a PROJECT generally described as: Joint Use Services (the "PROJECT"). I SECTION 1 Scope of Services A. The CITY hereby agrees to retain the ENGINEER, and the ENGINEER hereby agrees to perform, professional engineering services set forth in the Scope of Services on file at the office of the Purchasing Agent as Attachment A. These services shall be performed in connection with the PROJECT. B. Additional services, if any, will be requested in writing by the CITY. CITY shall not pay for any work performed by ENGINEER or its consultants, subcontractors and/or suppliers that has not been ordered in advance and in writing. It is specifically agreed that ENGINEER shall not be compensated for any additional work resulting from oral orders of any person. SECTION 2 Compensation and Term of Agreement A. The ENGINEER shall be compensated for all services provided to the CITY pursuant to this AGREEMENT in an amount not to exceed $50,000 in the manner and in accordance with the fee schedule as set forth in Attachment B B. Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment A. C. Unless otherwise terminated pursuant to Section 6. D. herein, this AGREEMENT shall be for a term beginning upon the effective date, as described below, and shall continue for a period of one (1) year, effective from date of award. The City and the Contractor shall have the option to renew this contract for an additional four (4) one- year periods. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council. The Contractor’s request to not renew the contract must be submitted in writing to the Purchasing Manager at least 60 days prior to the contract renewal date for each year. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 1 of 20 DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F SECTION 3 Terms of Payment Payments to the ENGINEER will be made as follows: A. Invoice and Payment (1)The final payment of any balance for the uncontested performance of the services will be due within 30 days of receipt of the final invoice. (2.)in the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. As a condition precedent to withholding payment, CITY shall provide ENGINEER with written notice itemizing the amount in dispute and all reasons for the dispute. No interest will accrue on any contested portion of the billing until mutually resolved . (3) if the CITY fails to make payment in full to ENGINEER for billings contested in good faith within 60 days of the amount due, the ENGINEER may, after giving 7 days' written notice to CITY, suspend services under this AGREEMENT until paid in full. In the event of suspension of services, the ENGINEER shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. SECTION 4 Obligations of the Engineer A. General The ENGINEER will serve as the CITY's professional engineering representative under this AGREEMENT, providing professional engineering consultation and advice and furnishing customary services incidental thereto. B. Standard of Care The ENGINEER shall perform its services: City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 2 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F (1) with the professional skill and care ordinarily provided by competent engineers practicing in the same or similar locality and under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer. (collectively “STANDARD OF CARE”). Notwithstanding any clause in this AGREEMENT to the contrary, ENGINEER expressly disclaims all express or implied warranties and guarantees with respect to the performance of professional services, and it is agreed that the quality of such services will be judged solely as to whether ENGINEER performed the services consistent with the STANDARD OF CARE. C. Subsurface Investigations (1) The ENGINEER shall advise the CITY with regard to the necessity for subcontract work such as special surveys, tests, test borings, or other subsurface investigations in connection with design and engineering work to be performed hereunder. The ENGINEER shall also advise the CITY concerning the results of same. Such surveys, tests, and investigations shall be furnished by the CITY, unless otherwise specified in Attachment A. (2) in soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect the total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the ENGINEER. D. Preparation of Engineering Drawings The ENGINEER will provide to the CITY the original drawings of all plans in ink on reproducible mylar sheets and electronic files in .pdf format, or as otherwise approved by CITY, which shall become the property of the CITY. Provided that CITY is in compliance with its payment obligations herein, CITY may use such drawings in any manner it desires; provided, however, that the ENGINEER shall not be liable for the use of such drawings for any project other than the PROJECT described herein . E. Engineer's Personnel at Construction Site (1) The presence or duties of the ENGINEER's personnel at a construction site, whether as on-site representatives or otherwise, do not make the ENGINEER or City of Denton, Texas Standard Agreement for Engineering Related Design ServicesRevised Date: 9/6/18 Page 3 of 20 DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F its personnel in any way responsible for those duties that belong to the CITY and/or the CITY's construction contractors or other entities, and do not relieve the construction contractors or any other entity of their obligations, duties, and responsibilities, including, but not limited to, all construction methods, means, techniques, sequences, and procedures necessary for coordinating and completing all portions of the construction work in accordance with the AGREEMENT Documents and any health or safety precautions required by such construction work. The ENGINEER and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. (2) Except to the extent of specific site visits expressly detailed and set forth in Attachment A, the ENGINEER or its personnel shall have no obligation or responsibility to visit the construction site to become familiar with the progress or quality of the completed work on the PROJECT or to determine, in general, if the work on the PROJECT is being performed in a manner indicating that the PROJECT, when completed, will be in accordance with the AGREEMENT Documents, nor shall anything in the AGREEMENT Documents or this AGREEMENT between CITY and ENGINEER be construed as requiring ENGINEER to make exhaustive or continuous on-site inspections to discover latent defects in the work or otherwise check the quality or quantity of the work on the PROJECT. If the ENGINEER makes on-site observation(s) of a deviation from the AGREEMENT Documents, the ENGINEER shall inform the CITY (3) When professional certification of performance or characteristics of materials, systems or equipment is reasonably required to perform the services set forth in the Scope of Services, the ENGINEER shall be entitled to rely upon such certification to establish materials, systems or equipment and performance criteria to be required in the AGREEMENT Documents. F. Opinions of Probable Cost, Financial Considerations, and Schedules (1) The ENGINEER shall provide opinions of probable costs based on the current available information at the time of preparation, in accordance with Attachment B. (2) in providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the PROJECT, the ENGINEER has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures and market conditions; time or quality of performance by third parties; quality, type, management, or direction of operating personnel; and other economic and operational factors that may materially affect the ultimate PROJECT cost or schedule. Therefore, the ENGINEER makes no warranty City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 4 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F that the CITY's actual PROJECT costs, financial aspects, economic feasibility, or schedules will not vary from the ENGINEER's opinions, analyses, projections, or estimates. G. Construction Progress Payments Recommendations by the ENGINEER to the CITY for periodic construction progress payments to the construction contractor will be based on the ENGINEER's knowledge, information, and belief from selective sampling and observation that the work has progressed to the point indicated. Such recommendations do not represent that continuous or detailed examinations have been made by the ENGINEER to ascertain that the construction contractor has completed the work in exact accordance with the AGREEMENT Documents; that the final work will be acceptable in all respects; that the ENGINEER has made an examination to ascertain how or for what purpose the construction contractor has used the moneys paid; that title to any of the work, materials, or equipment has passed to the CITY free and clear of liens, claims, security interests, or encumbrances; or that there are not other matters at issue between the CITY and the construction contractor that affect the amount that should be paid. H. Record Drawings Record drawings, if required, will be prepared, in part, on the basis of information compiled and furnished by others, and may not always represent the exact location, type of various components, or exact manner in which the PROJECT was finally constructed. The ENGINEER is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. I. Right to Audit (1) ENGINEER agrees that the CITY shall, until the expiration of five (5) years after final payment under this AGREEMENT, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of the ENGINEER involving transactions relating to this AGREEMENT. ENGINEER agrees that the CITY shall have access during normal working hours to all necessary ENGINEER facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The CITY shall give ENGINEER reasonable advance written notice of intended audits. (2) ENGINEER further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant agrees that the CITY shall, until the expiration of five (5) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that the CITY shall have City of Denton, Texas Standard Agreement for Engineering Related Design ServicesRevised Date: 9/6/18 Page 5 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F access during normal working hours to all subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this section together with subsection (3) hereof. CITY shall give subconsultant reasonable advance notice of intended audits (3) ENGINEER and suk)consultant agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse ENGINEER for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. (4) Notwithstanding any terms to the contrary in this AGREEMENT, CITY will have the right to review ENGINEER’S costs only for services performed on a reimbursable basis, in which case only costs such as labor hours, materials, and subcontractor invoices are subject to review. In no event will ENGINEER’S fixed pricing (including any lump sum pricing, unit pricing, hourly rates, multipliers, or markups), home office overhead, or efficiency in performing the services be subject to review. J. INSURANCE (1) ENGINEER’S INSURANCE a.Commercial General Liability – the ENGINEER shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of $1,000,000.00 per each occurrence with a $2,000,000.00 aggregate. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this PROJECT or location. 1.The CITY shall be included as an additional insured with all rights of defense under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any, but only in regard to operations performed by ENGINEER under this AGREEMENT, and not to the extent of any act or omission or operation of the additional insured party or parties. This insurance shall apply as primary insurance with respect to any other insurance or self- insurance programs afforded to the CITY. The Commercial General Liability insurance policy shall have no exclusions or endorsements that would alter or nullify: premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained within the policy, unless the CITY specifically approves such exclusions in writing. City of Denton, Texas Standard Agreement for Engineering Related Design ServicesRevised Date: 9/6/1 8 Page 6 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEI E3C52F 11.ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with this AGREEMENT. b.Business Auto – the ENGINEER shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit of $1,000,000 each accident. Such insurance shall cover liability arising out of “any auto”, including owned, hired, and non-owned autos, when said vehicle is used in the course of the PROJECT. If the engineer owns no vehicles, coverage for hired or non-owned is acceptable. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by ENGINEER pursuant to this AGREEMENT or under any applicable auto physical damage coverage. C.Workers’ Compensation – ENGINEER shall maintain workers compensation and employers liability insurance and, if necessary, commercial umbrella liability insurance with a limit of $100,000.00 each accident for bodily injury by accident or $100,000.00 each employee for bodily injury by disease, with $500,000.00 policy limit. 1.ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer’s liability or commercial umbrella insurance obtained by ENGINEER pursuant to this AGREEMENT. d.Professional Liability – ENGINEER shall maintain professional liability, a claims-made policy, with a limit of $1,000,000.00 per claim and aggregate. The policy shall contain a retroactive date prior to the date of the AGREEMENT or the first date of services to be performed, whichever is earlier. Coverage shall be maintained for a period of 5 years following the completion of the AGREEMENT. An annual certificate of insurance specifically referencing this PROJECT shall be submitted to the CITY for each year following completion of the AGREEMENT. (2) GENERAL INSURANCE REQUIREMENTS a. Certificates of insurance evidencing that the ENGINEER has obtained all required insurance shall be attached to this AGREEMENT prior to its City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 7 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEI E3C52F execution . b Applicable policies shall be endorsed to name the CITY an Additional Insured thereon, subject to any defense provided by the policy, as its interests may appear. The term CITY shall include its employees, officers, officials, agents, and volunteers as respects the contracted services. c. Certificate(s) of insurance shall document that insurance coverage specified in this AGREEMENT are provided under applicable policies documented thereon. d. Any failure on part of the CITY to attach the required insurance documentation hereto shall not constitute a waiver of the insurance requirements. e.A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the respective Department Director (by name), City of Denton, 901 Texas Street, Denton, Texas 76209. f. Insurers for all policies must be authorized to do business in the State of Texas and have a minimum rating of A:V or greater, in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. g.Any deductible or self insured retention in excess of $25,000.00 that would change or alter the requirements herein is subject to approval by the CITY in writing, if coverage is not provided on a first-dollar basis. The CITY, at it sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to the CITY h. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. i. The CITY shall be entitled, upon its request and without incurring expense, to review the ENGINEER's insurance policies including endorsements thereto and, at the CITY's discretion; the ENGINEER may be required to provide proof of insurance premium payments. j. Lines of coverage, other than Professional Liability, underwritten on a claims-made basis, shall contain a retroactive date coincident with or City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 8 of 20 DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F prior to the date of the AGREEMENT. The certificate of insurance shall state both the retroactive date and that the coverage is claims-made. k.Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. I The CITY shall not be responsible for the direct payment of any insurance premiums required by this AGREEMENT. m. Sub consultants and subcontractors to/of the ENGINEER shall be required by the ENGINEER to maintain the same or reasonably equivalent insurance coverage as required for the ENGINEER. When sub consultants/subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a certificate of insurance. These terms and conditions regarding insurance shall apply equally to any subconsultants or subcontractors working on behalf of ENGINEER. K. Independent Consultant The ENGINEER agrees to perform all services as an independent consultant and not as a subcontractor, agent, or employee of the CITY. The doctrine of respondeat superior shall not apply. L. Disclosure The ENGINEER acknowledges to the CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed PROJECT and business relationships with abutting property cities. The ENGINEER further acknowledges that it will make disclosure in writing of any conflicts of interest that develop subsequent to the signing of this AGREEMENT and prior to final payment under the AGREEMENT. M. Asbestos or Hazardous Substances (1) if asbestos or hazardous substances in any form are encountered or suspected, the ENGINEER will stop its own work in the affected portions of the PROJECT to permit testing and evaluation . (2) if asbestos or other hazardous substances are suspected, the CITY may request the ENGINEER to assist in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 9 of 20 DocuSign Envelope ID= 2CCB6881-DC234944-87A2-7C7CEIE3C52F N. Permitting Authorities - Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which the ENGINEER should have been aware of at the time this AGREEMENT was executed, the ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities’ published design criteria and/or practice standards criteria which are published after the date of this AGREEMENT which the ENGINEER could not have been reasonably aware of, the ENGINEER shall notify the CITY of such changes and an adjustment in compensation will be made through an amendment to this AGREEMENT. O. Schedule ENGINEER shall manage the PROJECT in accordance with the schedule developed per Attachment A to this AGREEMENT. P. Equal Opportunity (1) Equal Employment Opportunity: ENGINEER and ENGINEER’s agents shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this AGREEMENT. (2) Americans with Disabilities Act (ADA) Compliance: ENGINEER and ENGINEER’s agents shall not engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. SECTION 5 Obligations of the City A. City-Furnished Data ENGINEER may rely upon the accuracy, timeliness, and completeness of the information provided by the CITY. B. Access to Facilities and Property The CITY will make its facilities accessible to the ENGINEER as required for the ENGINEER's performance of its services. The CITY will perform, at no cost to the City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 10 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEI E3C52F ENGINEER, such tests of equipment, machinery, pipelines, and other components of the CITY's facilities as may be required in connection with the ENGINEER's services. The CITY will be responsible for all acts of the CITY's personnel. C. Advertisements, Permits, and Access Unless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange, and pay for all advertisements for bids; permits and licenses required by local, state, or federal authorities; and land, easements, rights-of-way, and access necessary for the ENGINEER’s services or PROJECT construction. D. Timely Review The CITY will examine the ENGINEER's studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with the PROJECT schedule prepared in accordance with Attachment A. E. Prompt Notice The CITY will give prompt written notice to the ENGINEER whenever CITY observes or becomes aware of any development that affects the scope or timing of the ENGINEER's services or of any defect in the work of the ENGINEER or construction contractors. F. Asbestos or Hazardous Substances Release. (1) CITY acknowledges ENGINEER will perform part of the work at CITY's facilities that may contain hazardous materials, including asbestos containing materials, or conditions, and that ENGINEER had no prior role in the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of City, City hereby releases ENGINEER from any damage or liability related to the presence of such materials. (2) The release required above shall not apply in the event the discharge, release or escape of hazardous substances, contaminants, or asbestos is a result of ENGINEER’s negligence or if ENGINEER brings such hazardous substance, contaminant or asbestos onto the PROJECT. G. Contractor Indemnification and Claims The CITY agrees to include in all construction contracts the provisions of Article IV.E. regarding the ENGINEER’s Personnel at Construction Site, and provisions providing for contractor indemnification of the CITY and the ENGINEER for contractor's negligence. City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 11 of 20 DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F H. Contractor Claims and Third-Party Beneficiaries (1) The CITY agrees to include the following clause in all contracts with construction contractors and equipment or materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain no direct action against the ENGINEER, its officers, employees, and subcontractors, for any claim arising out of, in connection with, or resulting from the engineering services performed. Only the CITY will be the beneficiary of any undertaking by the ENGINEER." (2) This AGREEMENT gives no rights or benefits to anyone other than the CITY and the ENGINEER and there are no third-party beneficiaries. (3) The CITY will include in each agreement it enters into with any other entity or person regarding the PROJECT a provision that such entity or person shall have no third-party beneficiary rights under this AGREEMENT. (4) Nothing contained in this Section H. shall be construed as a waiver of any right the CITY has to bring a claim against ENGINEER. I. CITY's Insurance (1) The CITY may maintain property insurance on certain pre-existing structures associated with the PROJECT. (2) The CITY may secure Builders Risk/Installation insurance at the replacement cost value of the PROJECT. The CITY may provide ENGINEER a copy of the policy or documentation of such on a certificate of insurance. J. Litigation Assistance The Scope of Services does not include costs of the ENGINEER for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the CITY. In the event CITY requests such services of the ENGINEER, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties K. Changes The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the ENGINEER's cost of or time required for performance of the services, an equitable adjustment will be made through an amendment City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 12 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F to this AGREEMENT with appropriate CITY approval. SECTION 6 General Legal Provisions A. Authorization to Proceed ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the ENGINEER, whether in hard copy or in electronic form, are instruments of service for this PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by the CITY or by others acting through or on behalf of the CITY of any such instruments of service without the written permission of the ENGINEER will be at the CITY’s sole risk. The CITY shall own the final designs, drawings, specifications and documents. C. Force Majeure The ENGINEER is not responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the ENGINEER that prevent ENGINEER’s performance of its obligations hereunder. D. Termination (1 ) This AGREEMENT may be terminated: a. by the City for its convenience upon 30 days' written notice to ENGINEER. b by either the CITY or the ENGINEER for cause if either party failssubstantially to perform through no fault of the other and the nonperforming party does not commence correction of such nonperformance within 10 days’ written notice or thereafter fails to diligently complete the correction. (2) if this AGREEMENT is terminated for the convenience of the City, the ENGINEER will be paid for termination expenses as follows: a. Cost of reproduction of partial or complete studies, plans, specifications City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/1 8 Page 13 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F or other forms of ENGINEER'S work product; b. Out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; c. The time requirements for the ENGINEER'S personnel to document the work underway at the time of the CITY'S termination for convenience so that the work effort is suitable for long time storage. (3) Prior to proceeding with termination services, the ENGINEER will submit to the CITY an itemized statement of all termination expenses. The CITY'S approval will be obtained in writing prior to proceeding with termination services. E. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the services of the ENGINEER for the convenience of the CITY. In the event of such suspension, delay, or interruption, an equitable adjustment in the PROJECT's schedule, commitment and cost of the ENGINEER's personnel and subcontractors, and ENGINEER's compensation will be made F. Indemnification IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE SECTION 271.904, THE ENGINEER SHALL INDEMNIFY OR HOLD HARMLESS THE CITY AGAINST ANY DAMAGE COMMITTED BY THE ENGINEER OR ENGINEER’S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE ENGINEER EXERCISES CONTROL (“ENGINEER PARTY”), PROVIDED SUCH DAMAGE ARISES OUT OF THIRD PARTY CLAIMS, AND ONLY TO THE EXTENT THAT THE DAMAGE IS CAUSED BY (A) AN ACT OF NEGLIGENCE, INTENTIONAL TORT IN THE PERFORMANCE OF PROFESSIONAL SERVICES HEREUNDER BY ANY ENGINEER PARTY, (B) INTELLECTUAL PROPERTY INFRINGEMENT BY ANY ENGINEER PARTY, OR (C) ENGINEER’S FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER. CITY IS ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES IN PROPORTION TO THE ENGINEER’S LIABILITY. IF ANY ENGINEER PARTY AND THE CITY AND/OR ANY THIRD PARTIES ARE CONCURRENTLY NEGLIGENT OR OTHERWISE AT FAULT OR STRICTLY LIABLE WITHOUT FAULT, THEN ENGINEER’S OBLIGATIONS TO INDEMNIFY SET FORTH IN THIS SECTION 6(F) SHALL CONTINUE, BUT ENGINEER SHALL INDEMNIFY THE CITY ONLY FOR THE PERCENTAGE OF THE RESPONSIBILITY FOR LOSSES ATTRIBUTABLE TO THE FAULT OF THE ENGINEER PARTIES, AND, PROMPTLY AFTER SETTLEMENT OR FINAL ADJUDICATION OF A CLAIM, CITY WILL REIMBURSE ENGINEER FOR THE COSTS, ATTORNEYS’ FEES, OTHER LEGAL EXPENSES, AND EXPERT FEES EXPENDED FOR DEFENSE IN THE SAME PROPORTION AS THE CITY’S PROPORTION OF NEGLIGENCE OR OTHER LEGAL City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 14 of 20 DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEI E3C52F FAULT. G. Assignment Neither party shall assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Jurisdiction The law of the State of Texas shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. The venue for any litigation related to this AGREEMENT shall be Denton County, Texas. 1.Severability and Survival If any of the provisions contained in this AGREEMENT are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Sections 5.F., 6.B., 6.D., 6.F., 6.H., and 6.1. shall survive termination of this AGREEMENT for any cause. Notwithstanding the foregoing, This Section 6.1 shall not operate as a waiver of any applicable statute of limitations. J. Observe and Comply ENGINEER shall at all times observe and comply with all federal and State laws and regulations and with all City ordinances and regulations which in any way affect this AGREEMENT and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. ENGINEER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ALL OF ITS OFFICERS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS ARISING OUT OF THIRD PARTY CLAIMS, TO THE EXTENT SUCH CLAIMS ARE CAUSED BY THE VIOLATION OF ANY SUCH ORDER, LAW, ORDINANCE, OR REGULATION, BY ENGINEER OR ITS EMPLOYEES. K. Immigration Nationality Act ENGINEER shall verify the identity and employment eligibility of its employees who perform work under this AGREEMENT, including completing the Employment Eligibility Verification Form (1-9). Upon request by CITY, ENGINEER shall provide CITY with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this AGREEMENT. ENGINEER shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any ENGINEER employee who is not legally eligible to perform City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 15 of 20 DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F such services. ENGINEER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, OR LOSSES ARISING OUT OF THIRD PARTY CLAIMS, TO THE EXTENT SUCH CLAIMS ARE CASUED BY VIOLATIONS OF THIS PARAGRAPH BY ENGINEER, ENGINEER’S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. CITY, upon written notice to ENGINEER, shall have the right to immediately terminate this AGREEMENT for violations of this provision by ENGINEER L. Prohibition On Contracts With Companies Boycotting Israel ENGINEER acknowledges that in accordance with Chapter 2270 of the Texas Government Code, CITY is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By sIgnIng this AGREEMENT, ENGINEER certifies that ENGINEER’S signature provides written verification to the CITY that ENGINEER: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the AGREEMENT. Failure to meet or maintain the requirements under this provision will be considered a material breach. M. Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Section 2252 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this AGREEMENT, ENGINEER certifies that ENGINEER’S signature provides written verification to the CITY that ENGINEER, pursuant to Chapter 2252, is not ineligible to enter into this AGREEMENT and will not become ineligible to receive payments under this AGREEMENT by doing business with Iran, Sudan, or a foreIgn terrorIst organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. N. Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Engineer submits a disclosure of interested parties (Form 1295) to the City at the time the Engineer submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Engineer will be required to furnish a Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 16 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F The contractor shall: 1. 2 3 4 5 6. Log onto the State Ethics Commission Website at : https ://www .ethics.state.tx.us/whatsnew/elf_info_form 1295. htm Register utilizing the tutorial provided by the State Print a copy of the completed Form 1295 Enter the Certificate Number on page 2 of this contract. Complete and sign the Form 1295 Email the form to purchasing@cityofdenton.com with the contract number in the subject line. (EX: Contract 1234 – Form 1295) The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics Commission’s website within seven business days. O. Agreement Documents This AGREEMENT, including its attachments and schedules, constitutes the entire AGREEMENT, which supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. This AGREEMENT may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. The following attachments and schedules are hereby made a part of this AGREEMENT: Attachment A – RFQ 7328 – Joint Use Services (on file at the office of the Purchasing Agent) Attachment B – Consultant’s Compensation/Pricing Attachment C - Conflict of Interest Questionnaire These documents make up the AGREEMENT documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the AGREEMENT documents, the inconsistency or conflict shall be resolved by giving precedence first to the written AGREEMENT then to the AGREEMENT documents in the order in which they are listed above. City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 17 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F P. Limitation of Liability Notwithstanding anything to the contrary in this AGREEMENT, ENGINEER and CITY waive any and all claims against each other for incidental, consequential, special, multiple, and punitive damages arising out of or relating to this AGREEMENT, regardless of whether such damages were foreseeable and whether or not the culpable party was advised of the possibility of such damages. This mutual waiver includes, but is not limited to, rental expenses, loss of use, loss of production, loss of income, loss of profit (except profit arising directly from the services), loss of financing, loss of business, and loss of reputation. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s breach or termination of the AGREEMENT. Additionally, ENGINEER’S total aggregate liability to CITY under this AGREEMENT on all claims of any kind arising out of or in any way related to ENGINEER’S work, from any cause or causes whatsoever, including, but not limited to, negligence, errors, omissions, strict liability, indemnity, or breach of contract, is limited to $500,000 (Five Hundred Thousand Dollars). City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 18 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F Duly executed by each party’s designated representative to be effective on the date subscribed by the City Manager. BY: CITY OF DENTON, TEXAS BY: TRC ENGINEERS. INC DocuSlgned by: SMA A%q&# $)Decr]2p£nx’s Legal Name> eIMML hJ++bmr 7bry'slliFe;aFiager <Title> President, Power Date: 6/9/2021 Date. 5/3/2021 THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. 2021- TEXAS ETHICS COMMISSION CERTIFICATE NUMBER DME Genera1 Manager Title E1 ect rl c Department Date Signed: 5/3/2021 APPROVED AS TO LEGAL FORM: AARPthE8£bygITY ATTORNEY ALArtLLL&(/xmlBy: ATTEST: CITY SECRETARY City of Denton, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 19 of 20 DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F ATTACHMENT B RFQ #7328 PRICING FOR: Joint Use ServicesTRe Prepared for. City of Denton bihvrni Prepared by. TRC August 26, 2020 DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F TRC Pricing Response for RFa # 7328 Deliverable Description Phase/Time Frame Process Applications within the timelines provided in the Pole Attachment Standards Perform all field inspections within the time frames provided in the Pole Attachment Standards. Compensation Description Unit Price – Price per Pole submitted (Additional breakdown of tasks to be determined) TRC Pricing Process Pole Attachment Applications Successfully review, and approve or reject, Pole Attachment Applications received by DME in accordance with the Pole Attachment Standards. $2.00 Conduct Field Inspections Perform field inspections to verify information in Applications and compliance with construction requirements in accordance with all applicable standards. Produce Make-Ready Engineering design documents for Attaching Entities operating Private Networks. Unit Price – Price per Pole Inspected (Additional breakdown of tasks to be determined) $8.00 Perform Make- Ready Engineering Produce technical documents within the time frames provided in the Pole Attachment Standards Toll time period for completing Application review and approval pending submission of complete Application. Create database entries, invoices, and reports within time periods provided in the Pole Attachment Standards and contractual obligations. Unit Price – Price per Pole reviewed (Additional breakdown of tasks to be determined) $ 275.00 Assist Attaching Entities in Application Process As necessary and appropriate, assist Attaching Entities by answering questions and explaining the Pole Attachment Standards as part of the Application submission process. Time & Expense See attached rate sheet Documentation of Application Process Document the Application process, including invoicing, as provided in the Pole Attachment Standards and contractual requIrements. Unit Price (Additional breakdown of tasks to be determined) $ 160.00 [Type here] TRC DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F TRC Pricing Response for RFQ # 7328 Safety Incidents I Report all safety Reports 1 incidents to the DME Manager, Pole Attachment Services. Immediately at time of occurrence or as soon as practical thereafter Within one (1) business day of contact. Immediately, if escalation required. Time & Expense to prepare report See attached rate sheet Customer Contacts Reports Provide a brief description of any contact with DM E customers. Report should include issue discussed and resolution of issue (pending or completed). Provide DME reports regarding the status of all Pole Attachments Applications in progress. Unit Price – Price per report submItted $ 20.00 Application Process Status Reporting Weekly, or as requested by DME Unit Price – Price per report submitted $32.50 Program Performance Reporting Provide DME higher-level reports regarding the work undertaken in a given month related to the DME Pole Attachment Program. Provide DME technical assistance in the development of “white- papers" or other appropriate documentation Mileage Monthly, or as requested by DIVIE Unit Price – Price per report submitted $320.00 Technical “White-Papers" or Other Studies As requested DIVIE I As required sheet Mileage Per Mile Per Mile $ 2.55 [Type here]TRe DocuSign Envelope ID: 2CCB6881-DC234944-87A2-7C7CEIE3C52F TRe 2020 Distribution Rate Schedule Job Classification Low High Job Classification Low High Distribution Operations Manager Distribution Supervisor Support Services Manager Support Services Supervisor 3165 $195 $125 $160 $165 $195 $125 $160 Distribution Analyst III Distribution Analyst II Distribution Analyst I $75 $65 $60 $80 $60 $85 $75 $70 $90 $70 Distribution Coordinator Administrative AssistantProgram Manager Senior Project Manager Project Manager Associate Project Manager Project Coordinator $145 $120 $100 $90 $80 $170 $130 $120 $100 $90 Contract Consultant Contract Analyst IV Contract Analyst III Contract Analyst it Contract Analyst I $195 $105 $95 $85 $75 205 $115 $105 $95 85Distribution Engineer V Distribution Engineer IV Distribution Engineer III Distribution Engineer II Distribution Engineer I $135 $125 $115 $105 $95 $145 $135 $125 $115 $105 Senior Construction Manager Construction Manager Construction Inspector Field Construction Coordinator $120 $160 $110 $130 $80 $110 $70 $100 Distribution Designer IV Distribution Designer III Distribution Designer II Distribution Designer I $95 $105 $85 $95 $80 $90 $75 $85 Right of Way Agent IV Right of Way Agent III Right of Way Agent II Right of Way Agent I $100 $110 $90 $100 $80 $90 $70 $80 Distribution Technician II Distribution Technician II Distribution Technician I $70 $65 $60 $80 $75 $70 Application Developer III Application Developer II Application Developer I $110 $125 $95 $110 $80 $95 CAD Technician II CAD Technician I $75 $85 $65 $75 Storm Damage Assessor III Storm Damage Assessor II Storm Damage Assessor I $110 $120 $100 $110 $60 $70 I. Labor a. Work requests for labor greater than 40 hours will be billed straight time hourly rate according to listed technical services. b. All storm services will be billed to the client at the standard plus a multiplier of 1.5 x standard rate II. Mileage a. Mileage will be charged at the current IRS rate. III. Per Diems a. Per diems will be billed at the current GSA rate for the area in which the work is performed if overnight travel is required. tV. Material a. All materials will be billed at cost plus 15%. standard, straight time hourly rate DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEIE3C52F TRC """"''''"';''“.“" DocuSign Envelope ID: 2CCB6881-DC23-4944-87A2-7C7CEI E3C52F ATTACHMENT C CONFLICT OF INTEREST QUESTIONNAIRE CONFLICT OF INTEREST QUESTIONNAIRE - For vendor or other person doing business with local governmental entit This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. FORM CIQ This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor 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 vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. a TRC ENGINEERS, INC. TH 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 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) d Name of local government officer about whom the information in this section is being disclosed. Name of Officer This section, (item 3 including suk)parts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defIned by Section 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 vendor? = Yes = No B Is the vendor receiving or likely to receive taxable income, other than investment income, hom 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? [] Yes [] 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 one percent or more? n Yes D No D Describe each employment or business and family relationship with the local government officer named in this section 4 5 I have no Conflict of Interest to disclose.E -~~}DLab 7/1 5/2020 Signature of vendor doing business with the governmental entity Date