22-265ORDINANCENO. 22-265
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPALCORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONALSERVICES AGREEMENT WITH KIb4LEY-HORN AND ASSOCIATES, INC., FOR DESIGNSERVICES FOR THE TXDOT 1-35 AESTHETIC PACKAGE FOR THE PARKS AND
RECREATION DEPARTMENT AS SET FORTH IN THE CONTRACT; PROVIDING FOR THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFQ7599-007 – PROFESSIONAL SERVICES AGREEMENT FOR DESIGN SERVICES AWARDED
TO KIMLEY-HORN AND ASSOCIATES, INC., IN THE NOT-TO-EXCEED AMOUNT OF
$1 13,137.00)
WHEREAS, on May 18, 2021, the City Council approved a pre-qualified professional
engineering list (Ordinance 21-894); and
WHEREAS, the professional services provider (the “Provider) mentioned in this ordinance is
being selected as the most highly qualified on the basis of its demonstrated competence and
qualifications to perform the proposed professional services; and
WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent
with, and not higher than, the recommended practices and fees published by the professional
associations applicable to the Provider’s profession, and such fees do not exceed the maximum
provided by law; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or their designee, is hereby authorized to enter into an
agreement with Kimley-Horn and Associates, Inc., for design services for the TXDOT 1-35
Aesthetic Package for the Parks and Recreation Department, a copy of which is attached hereto and
incorporated by reference herein.
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 hereby 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, Texas, or their designee.
SECTION 4. The findings in the preamble of this ordinance are incorporated herein byreference.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
,,d „,,„d,d bJhh'::IT ETpve this ordi"a"'e was Tl::dieJ==„:,, Ih', I,„„,,„,d
by the following vote U
Aye
t/-Z-,Z
IL
IZ
,/
V
Nay Abstain Absent
Mayor Gerard Hudspeth:Vicki Byrd, District 1 :Brian Beck, District 2:Jesse Davis, District 3 :
Alison Maguire, District 4:
Deb Armintor, At Large Place 5 :
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the rl day of aLf „'rY ' 2022.
mA 'SPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
n\\it 11111/
ah _232;?‘
APPROVED AS TO LEGAL FORM:
MACK RErNWAND, CITY ATTORNEY
Digitally signed by Marcella
DN: cn=Marcella Lunn, o,
J/avC Tr=::=r:S=F,nin@,iW,fd,nton.com, c=USDate: 2022.01.25 15:11 :30
-06'OO'
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DENTON
Docusign City Council Transmittal Coversheet
PSA 1 7599–o07
File Name 1 35 AesthetIcs Plan
PurchasingContact ErIca Garcla
City Council Target Date FEBRUARY 1 ’ 2022
App1 icab1 ePiggy Back Option NOt
Contract Expiration
Ordinance
N/A
22-265
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CITY OF DENTON, TEXAS
STANDARD AGREEMENT FOR ENGINEERING RELATED PROFESSIONALSERVICES
This AGREEMENT is between the City of Denton, a Texas home-rule municipality("CITY"), and Kimley-Horn and Associates, Inc., with its corporate office at 100 W. OakStreet, Suite 203, Denton, TX 76201 and authorized to do business in Texas.
("ENGINEER"), for a PROJECT generally described as: design services for TXDOT 1-35Aesthetic Package (the "PROJECT").
SECTION 1
Scope of Services
A. The CITY hereby agrees to retain the ENGINEER, and the ENGINEER hereby agreesto perform, professional engineering services set forth in the Scope of Servicesattached hereto as Attachment A. These services shall be performed in connectionwith the PROJECT.
B.Additional services, if any, will be requested in writing by the CITY. CITY shall notpay 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 specificallyagreed that ENGINEER shall not be compensated for any additional work resultingfrom oral orders of any person.
SECTION 2
Compensation and Term of Agreement
A.The ENGINEER shall be compensated for all services provided pursuant to thisAGREEMENT in an amount not to exceed $113,137.00 in the manner and in
accordance with the fee schedule as set forth in Attachment A. Payment shall beconsidered full compensation for all labor, materials, supplies, and equipmentnecessary to complete the services described in Attachment A.
B.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 which may reasonably be required for the completion of the PROJECT,until the expiration of the funds, or completion of the PROJECT and acceptance by theCITY, whichever occurs first. ENGINEER shall proceed diligently with the PROJECT tocompletion as described in the PROJECT schedule as set forth in Attachment A.
SECTION 3
Terms of Payment
Payments to the ENGINEER will be made as follows:
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A. Invoice and Payment
(1) The Engineer shall provide the City sufficient documentation, including but not
limited to meeting the requirements set forth in the PROJECT schedule as set
forth in Attachment A to reasonably substantiate the invoices.
(2) The ENGINEER will issue monthly invoices for all work performed under thisAGREEMENT. Invoices for the uncontested performance of the particular
services are due and payable within 30 days of receipt by City.
(3) Upon completion of services enumerated in Section 1, the final payment of anybalance for the uncontested performance of the services will be due within 30
days of receipt of the final invoice.
(4) in the event of a disputed or contested billing, only that portion so contested willbe withheld from payment, and the undisputed portion will be paid. The CITYwill exercise reasonableness in contesting any bill or portion thereof. No
interest will accrue on any contested portion of the billing until mutually resolved.
(5) if the CITY fails to make payment in full to ENGINEER for billings contested ingood faith within 60 days of the amount due, the ENGINEER may, after giving 7days' written notice to CITY, suspend services under this AGREEMENT untilpaid in full. In the event of suspension of services, the ENGINEER shall haveno 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 underthis AGREEMENT, providing professional engineering consultation and advice and
furnishing customary services incidental thereto.
B. Standard of Care
The ENGINEER shall perform its services:
(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
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(2) as expeditiously as is prudent considering the ordinary professional skill and
care of a competent engineer.
C. Subsurface Investigations
(1) The ENGINEER shall advise the CITY with regard to the necessity forsubcontract 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 concerningthe results of same. Such surveys, tests, and investigations shall be furnishedby the CITY, unless otherwise specified in Attachment A.
(2) in soils, foundation, groundwater, and other subsurface investigations, theactual characteristics may vary significantly between successive test points andsample intervals and at locations other than where observations, exploration,and investigations have been made. Because of the inherent uncertainties insubsurface evaluations, changed or unanticipated underground conditions mayoccur that could affect the total PROJECT cost and/or execution. These
conditions and cost/execution effects are not the responsibility of theENGINEER.
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 byCITY, which shall become the property of the CITY. CITY may use such drawings in anymanner 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 orits personnel in any way responsible for those duties that belong to the CITYand/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 andcompleting all portions of the construction work in accordance with theAGREEMENT Documents and any health or safety precautions required bysuch construction work. The ENGINEER and its personnel have no authority toexercise 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
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Attachment A, the ENGINEER or its personnel shall have no obligation or
responsibility to visit the construction site to become familiar with the progressor 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 thePROJECT, when completed, will be in accordance with the AGREEMENTDocuments, nor shall anything in the AGREEMENT Documents or thisAGREEMENT between CITY and ENGINEER be construed as requiringENGINEER to make exhaustive or continuous on-site inspections to discover
latent defects in the work or otherwise check the quality or quantity of the workon the PROJECT. If the ENGINEER makes on-site observation(s) of a
deviation from the AGREEMENT Documents, the ENGINEER shall inform theCITY
(3) When professional certification of performance or characteristics of materials,systems or equipment is reasonably required to perform the services set forth inthe Scope of Services, the ENGINEER shall be entitled to rely upon suchcertification to establish materials, systems or equipment and performancecriteria 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 currentavailable information at the time of preparation, in accordance withAttachment A.
(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 equipmentor structures that may affect operation or maintenance costs; competitive
bidding procedures and market conditions; time or quality of performance bythird parties; quality, type, management, or direction of operating personnel; and
other economic and operational factors that may materially affect the ultimatePROJECT cost or schedule. Therefore, the ENGINEER makes no warranty
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 progresspayments to the construction contractor will be based on the ENGINEER's knowledge,information, and belief from selective sampling and observation that the work hasprogressed to the point indicated. Such recommendations do not represent thatcontinuous or detailed examinations have been made by the ENGINEER to ascertain thatthe construction contractor has completed the work in exact accordance with the
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AGREEMENT Documents; that the final work will be acceptable in all respects; that theENGINEER 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, orencumbrances: 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 variouscomponents, or exact manner in which the PROJECT was finally constructed. TheENGINEER is not responsible for any errors or omissions in the information from othersthat is incorporated into the record drawings.
I. Right to Audit
(1) ENGINEER agrees that the CITY shall, until the expiration of five (5) years afterfinal payment under this AGREEMENT, have access to and the right toexamine and photocopy any directly pertinent books, documents, papers andrecords 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 andappropriate work space in order to conduct audits in compliance with the
provisions of this section. The CITY shall give ENGINEER reasonable advancenotice 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 CITYshall, 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 haveaccess during normal working hours to all subconsultant facilities, and shall be
provided adequate and appropriate work space, in order to conduct audits incompliance with the provisions of this section together with subsection (3)
hereof. CITY shall give subconsultant reasonable advance notice of intendedaudits
(3) ENGINEER and subconsultant 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 ofthe time copying is performed.
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J. INSURANCE
(1) ENGINEER’S INSURANCE
a.Commercial General Liability – the ENGINEER shall maintaincommercial general liability (CGL) and, if necessary, commercial
umbrella insurance with a limit of not less than $1,000,000.00 per each
occurrence with a $2,000,000.00 aggregate. If such Commercial GeneralLiability 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, andunder the commercial umbrella, if any. This insurance shall apply
as primary insurance with respect to any other insurance or self-insurance programs afforded to the CITY. The CommercialGeneral 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.
ii.ENGINEER waives all rights against the CITY and its agents,
officers, directors and employees for recovery of damages to theextent these damages are covered by the commercial general
liability or commercial umbrella liability insurance maintained inaccordance with this AGREEMENT.
b.Business Auto – the ENGINEER shall maintain business auto liability
and, if necessary, commercial umbrella liability insurance with a limit ofnot less than $1,000,000 each accident. Such insurance shall cover
liability arising out of “any auto”, including owned, hired, and non-ownedautos. when said vehicle is used in the course of the PROJECT. If theengineer owns no vehicles, coverage for hired or non-owned isacceptable.
1.ENGINEER waives all rights against the CITY and its agents,
officers, directors and employees for recovery of damages to theextent these damages are covered by the business auto liability or
commercial umbrella liability insurance obtained by ENGINEERpursuant to this AGREEMENT or under any applicable auto
physical damage coverage.
c. Workers’ Compensation – ENGINEER shall maintain workers
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compensation and employers liability insurance and, if necessary,commercial umbrella liability insurance with a limit of not less than$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.
i.ENGINEER waives all rights against the CITY and its agents,
officers, directors and employees for recovery of damages to theextent these damages are covered by workers compensation and
employer’s liability or commercial umbrella insurance obtained byENGINEER pursuant to this AGREEMENT.
d.Professional Liability – ENGINEER shall maintain professional liability, aclaims-made policy, with a minimum of $1,000,000.00 per claim andaggregate. 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 yearsfollowing the completion of the AGREEMENT. An annual certificate of
insurance specifically referencing this PROJECT shall be submitted tothe 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 itsexecution.
b.Applicable policies shall be endorsed to name the CITY an Additional
Insured thereon, subject to any defense provided by the policy, as itsinterests may appear. The term CITY shall include its employees,officers, officials, agents, and volunteers as respects the contractedservIces.
c. Certificate(s) of insurance shall document that insurance coveragespecified in this AGREEMENT are provided under applicable policiesdocumented thereon.
d. Any failure on part of the CITY to attach the required insurancedocumentation 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 beacceptable in the event of non-payment of premium. Notice shall be sentto the respective Department Director (by name), City of Denton, 901Texas Street, Denton, Texas 76209.
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f. Insurers for all policies must be authorized to do business in the State ofTexas and have a minimum rating of A:V or greater, in the current A.M.Best Key Rating Guide or have reasonably equivalent financial strengthand 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 bythe CITY in writing, if coverage is not provided on a first-dollar basis. TheCITY, at it sole discretion, may consent to alternative coverage
maintained through insurance pools or risk retention groups. Dedicatedfinancial resources or letters of credit may also be acceptable to theCITY
h. Applicable policies shall each be endorsed with a waiver of subrogationin favor of the CITY as respects the PROJECT.
1.The CITY shall be entitled, upon its request and without incurring
expense, to review the ENGINEER's insurance policies includingendorsements 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 aclaims-made basis, shall contain a retroactive date coincident with or
prior to the date of the AGREEMENT. The certificate of insurance shallstate 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 orchanges from date of commencement of the PROJECT until final
payment and termination of any coverage required to be maintained afterfinal payments.
I The CITY shall not be responsible for the direct payment of anyinsurance 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 reasonablyequivalent insurance coverage as required for the ENGINEER. Whensub consultants/subcontractors maintain insurance coverage,
ENGINEER shall provide CITY with documentation thereof on acertificate of insurance.
K. Independent Consultant
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The ENGINEER agrees to perform all services as an independent consultant and not as asubcontractor, 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 financialinterest, direct or indirect, in property abutting the proposed PROJECT and business
relationships with abutting property cities. The ENGINEER further acknowledges that it willmake disclosure in writing of any conflicts of interest that develop subsequent to thesigning 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 mayrequest the ENGINEER to assist in obtaining the services of a qualifiedsubcontractor to manage the remediation activities of the PROJECT.
N. Permitting Authorities - Design Changes
If permitting authorities require design changes so as to comply with published designcriteria and/or current engineering practice standards which the ENGINEER should havebeen 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 designchanges are required due to the changes in the permitting authorities' published designcriteria and/or practice standards criteria 'which are published after the date of thisAGREEMENT which the ENGINEER could not have been reasonably aware of, the
ENGINEER shall notify the CITY of such changes and an adjustment in compensation willbe made through an amendment to this AGREEMENT.
O. Schedule
ENGINEER shall manage the PROJECT in accordance with the schedule developed perAttachment A to this AGREEMENT.
P. Equal Opportunity
(1) Equal Employment Opportunity: ENGINEER and ENGINEER’s agentsshall engage in any discriminatory employment practice. No person shall, on
the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic
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testing, or national origin, be refused the benefits of, or be otherwise subjectedto discrimination under any activities resulting from this AGREEMENT.
(2) Americans with Disabilities Act (ADA) Compliance: ENGINEER andENGINEER’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 informationprovided by the CITY.
B. Access to Facilities and Property
The CITY will make its facilities accessible to the ENGINEER as required for theENGINEER's performance of its services. The CITY will perform, at no cost to theENGINEER, 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. TheCITY 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, andpay for all advertisements for bids; permits and licenses required by local, state, or federalauthorities; and land, easements, rights-of-way, and access necessary for theENGINEER'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, insurancecounselor, 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 timelymanner in accordance with the PROJECT schedule prepared in accordance withAttachment 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
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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'sfacilities that may contain hazardous materials, including asbestos containingmaterials, or conditions, and that ENGINEER had no prior role in thegeneration, treatment, storage, or disposition of such materials. Inconsideration of the associated risks that may give rise to claims by thirdparties or employees of City, City hereby releases ENGINEER from anydamage or liability related to the presence of such materials.
(2) The release required above shall not apply in the event the discharge, releaseor escape of hazardous substances, contaminants, or asbestos is a result ofENGINEER’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 forcontractor indemnification of the CITY and the ENGINEER for contractor's negligence.
H. Contractor Claims and Third-Party Beneficiaries
(1) The CITY agrees to include the following clause in all contracts withconstruction contractors and equipment or materials suppliers:
"Contractors, subcontractors and equipment and materials
suppliers on the PROJECT, or their sureties, shall maintain nodirect action against the ENGINEER, its officers, employees, andsubcontractors, for any claim arising out of, in connection with, or
resulting from the engineering services performed. Only the CITYwill be the beneficiary of any undertaking by the ENGINEER."
(2) This AGREEMENT gives no rights or benefits to anyone other than the CITYand the ENGINEER and there are no third-party beneficiaries.
(3) The CITY will include in each agreement it enters into with any other entity orperson regarding the PROJECT a provision that such entity or person shallhave no third-party beneficiary rights under this AGREEMENT.
(4) Nothing contained in this Section H. shall be construed as a waiver of any rightthe CITY has to bring a claim against ENGINEER.
I. CITY's Insurance
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(1) The CITY may maintain property insurance on certain pre-existing structuresassociated with the PROJECT.
(2) The CITY may secure Builders Risk/Installation insurance at the replacementcost 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 requestedassistance 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, thisAGREEMENT 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 thisAGREEMENT. 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 amendmentto 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 awritten 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 thisPROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration bythe CITY or by others acting through or on behalf of the CITY of any such instruments ofservice 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.
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C. Force Majeure
The ENGINEER is not responsible for damages or delay in performance caused by acts ofGod, 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 toENGINEER.
b by either the CITY or the ENGINEER for cause if either party fails
substantially to perform through no fault of the other and thenonperforming party does not commence correction of such
nonperformance within 5 days’ written notice or thereafter fails todiligently 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
or other forms of ENGINEER'S work product;
b. Out-of-pocket expenses for purchasing electronic data files and otherdata storage supplies or services;
c. The time requirements for the ENGINEER'S personnel to document thework 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 theCITY 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, anequitable adjustment in the PROJECT's schedule, commitment and cost of the
ENGINEER's personnel and subcontractors, and ENGINEER's compensation will bemade
F. Indemnification
City of Denton, TexasStandard Agreement for Engineering Related Design ServicesRevised Date: 9/6/18
Page 13 of 17
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IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE SECTION 271.904,THE ENGINEER SHALL INDEMNIFY OR HOLD HARMLESS THE CITY AGAINSTLIABILITY FOR ANY DAMAGE COMMITTED BY THE ENGINEER OR ENGINEER’S
AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICHTHE ENGINEER EXERCISES CONTROL TO THE EXTENT THAT THE DAMAGE ISCAUSED BY OR RESULTING FROM AN ACT OF NEGLIGENCE, INTENTIONALTORT. INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY ASUBCONTRACTOR OR SUPPLIER. CITY IS ENTITLED TO RECOVER ITSREASONABLE ATTORNEY’S FEES IN PROPORTION TO THE ENGINEER’SLIABILITY
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, itsinterpretation and performance, and any other claims related to it. The venue for anylitigation 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 unenforceabilitywill 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.F6.B., 6.D., 6.F., 6.H., and 6.1. shall survive termination of this AGREEMENT for any cause.
J. Observe and Comply
ENGINEER shall at all times observe and comply with all federal and State laws andregulations and with all City ordinances and regulations which in any way affect thisAGREEMENT and the work hereunder, and shall observe and comply with all orders, lawsordinances and regulations which may exist or may be enacted later by governing bodies
having jurisdiction or authority for such enactment. No plea of misunderstanding orignorance thereof shall be considered. ENGINEER AGREES TO DEFEND, INDEMNIFYAND HOLD HARMLESS CITY AND ALL OF ITS OFFICERS, AGENTS ANDEMPLOYEES FROM AND AGAINST ALL CLAIMS OR LIABILITY ARISING OUT OFTHE VIOLATION OF ANY SUCH ORDER, LAW, ORDINANCE, OR REGULATION,WHETHER IT BE BY ITSELF OR ITS EMPLOYEES.
K. Immigration Nationality Act
City of Denton, TexasStandard Agreement for Engineering Related Design ServicesRevised Date: 9/6/18
Page 14 of 17
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ENGINEER shall verify the identity and employment eligibility of its employees who
perform work under this AGREEMENT, including completing the Employment EligibilityVerification 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 whoperforms work under this AGREEMENT. ENGINEER shall adhere to all Federal andState 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 performsuch services. ENGINEER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESSFROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THISPARAGRAPH BY ENGINEER, ENGINEER’S EMPLOYEES, SUBCONTRACTORS,AGENTS, OR LICENSEES. CITY, upon written notice to ENGINEER, shall have theright to immediately terminate this AGREEMENT for violations of this provision byENGINEER
L. Prohibition On Contracts With Companies Boycotting Israel
ENGINEER acknowledges that in accordance with Chapter 2270 of the TexasGovernment Code, CITY is prohibited from entering into a contract with a company forgoods or services unless the contract contains a written verification from the companythat it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of thecontract. The terms “boycott Israel” and “company” shall have the meanings ascribed tothose terms in Section 808.001 of the Texas Government Code. By sIgning thisAGREEMENT, ENGINEER certifies that ENGINEER’S signature provides writtenverification to the CITY that ENGINEER: V) 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 withcompanies that do business with Iran, Sudan, or a foreign terrorist organization. Bysigning this AGREEMENT, ENGINEER certifies that ENGINEER’S signatureprovides written verification to the CITY that ENGINEER, pursuant to Chapter2252, is not ineligible to enter into this AGREEMENT and will not becomeineligible to receive payments under this AGREEMENT by doing business withIran, 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 2252.908of the Government Code. The law states that the City may not enter into this contractunless the Contractor submits a disclosure of interested parties (Form 1295) to the City
City of Denton, TexasStandard Agreement for Engineering Related Design ServicesRevised Date: 9/6/1 8
Page 15 of 17
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at the time the Contractor submits the signed contract. The Texas Ethics Commission
has adopted rules requiring the business entity to file Form 1295 electronically with theCommission .
Contractor will be required to furnish a Certificate of Interest Parties before the contract
is awarded, in accordance with Government Code 2252.908.
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 form1295.htm
Register utilizing the tutorial provided by the StatePrint a copy of the completed Form 1295Enter the Certificate Number on page 2 of this contract.
Complete and sign the Form 1295Email 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 theTexas Ethics Commission’s website within seven business days.
O. Agreement Documents
This AGREEMENT, including its attachments and schedules, constitutes the entireAGREEMENT, which supersedes all prior written or oral understandings, and may only be
changed by a written amendment executed by both parties. This AGREEMENT may beexecuted in one or more counterparts and each counterpart shall, for all purposes, bedeemed an original, but all such counterparts shall together constitute but one and thesame instrument. The following attachments and schedules are hereby made a part ofthis AGREEMENT:
Attachment A - Scope of Services, Compensation, and Project Schedule
These documents make up the AGREEMENT documents and what is called for by oneshall 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 shallbe resolved by giving precedence first to the written AGREEMENT then to theAGREEMENT documents in the order in which they are listed above.
City of Denton, TexasStandard Agreement for Engineering Related Design ServicesRevised Date: 9/6/1 8
Page 16 of 17
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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:ENGINEER
and Associates, Inc8
awA”
dTt ArnoNam;City Manager TItle: Vlce PresIdent
Date: 02/01/2022 Date: 02/01/2022
THIS AGREEMENT HAS BEENBOTH REVIEWED AND APPROVED
as to financial and operational
nbbaa laB and business terms
2022–843497
TEXAS ETHICS COMMISSIONCERTIFICATE NUMBER
Signature
D1 rector of Parks and Recreation
Title
Parks & RecreatIon
Department
02/01/2022Date Signed:
APPROVED AS TO LEGAL FORM:
MACK REINWAND, ..CiTYATrORNEYB,:L"SW
ArrEST:CITY SECRETARY
City of Denton, TexasStandard Agreement for Engineering Related Design ServicesRevised Date: 9/6/18Page 17 of 17
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Attachment A
Kimley $Horn Page 7
January 7, 2022
Mr. Drew Huffman
Assistant Direction, Planning & Operations
Parks and Recreation City of Denton
601 East Hickory Street
Denton, Texas 76205
Drew. Huffman@cityofdenton.com
Re:1-35 Corridor: Wall, Hardscape and Landscape EnhancementsLandscape Architecture Professional Services
City of Denton, Texas
Dear Mr. Huffman,
Kimley-Horn and Associates, Inc. (“Kimley-Horn” or the “Consultant”), is pleased to submit this letter of
agreement (the “Agreement”) to the City of Denton (the "Client”) for professional services related to the
beautification of the redesign of the 1-35 corridor and interchange. Our project understanding, scope of
services, schedule, and fees are described below:
PROJECT UNDERSTANDING
The City of Denton is pursuing the graphic design of the Mechanically Stabilized Earth (MSE) retaining
walls, and decorative hardscape and landscape enhancements related to the TxDOT project of the
redesigned overpasses on 1-35 through the City of Denton (the “Projecf’), a -6.5 mile stretch containing
6 overpasses and the interchange at 35E and 35W in the City of Denton, TX (the “City”).
This proposal is for the landscape architecture design services of the major intersections along the
corridor which can be found below. (Figure A).
6160 Warren Parkway, Suite 210, Frisco, TX 75034
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•
•
•
Design of Life Safety lighting and signage is beyond the scope of this Agreement.
The Consultant does not guarantee the issuance of permits or approvals. If permits are issuedfor this project, the conditions and expiration dates are the sole responsibility of Client.
The Consultant shall be permitted to make such corrections or interpretations as may benecessary for the fulfillment of the intent of the Contract Documents. Client shall not allow thecontractor to take advantage of any apparent errors, omissions or discrepancies in thedrawings or specifications. In case of any errors, omissions or discrepancies in the drawingsor specifications, Client shall direct the contractor to promptly submit the matter to Client beforethe improvements are built. Client shall promptly make a determination and issue thenecessary instructions to the contractor in writing. Any adjustment by the contractor withoutthis determination and instructions shall be at the contractor’s own risk and expense. The Workis to be made complete as intended by the Contract Documents.
In the performance of any services during construction, The Consultant shall not be responsiblefor the means, methods, acts, techniques, equipment choice and usage, sequences, schedulesor for safety precautions or programs of any Contractor, Subcontractor, or any other individualor entity performing or furnishing work. The Consultant shall not have the authority orresponsibility to stop or direct the work of any Contractor or authorize changes to theContractor’s scope of work. The Consultant will not be responsible for any inspections orcertifications during or after completion of the project.
Electrical design (such as site lighting), structural design (such as retaining walls), and site
signage design is beyond the scope of this Agreement.
The work related to Consultant’s scope is not anticipated to impact United States Army Corps
of Engineers jurisdictional areas or other Environmentally Sensitive Areas.
The work related to Consultant’s scope is not anticipated to impact any published FEMAfloodplain area.
It is understood that the design scope of this agreement is limited to the following intersections:
' The merge of 1-35E and 1-35W
- Oak Street
•
•
•
•
•
US 380
Loop 288
Highway 77
Ganzer Road
Milam Road
•Due to the everchanging circumstances surrounding the COVID-19 Virus, situations may arise
during the performance of this Agreement that affect availability of resources and staff ofKimley-Horn, the client, other consultants, and public agencies. There could be changes in
anticipated delivery times, jurisdictional approvals, and project costs. Kimley-Horn will exercisereasonable efforts to overcome the challenges presented by current circumstances, butKimley-Hom will not be liable to Client for any delays, expenses, losses, or damages of anykind outside of its complete control.
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SCOPE OF SERVICES
The tasks outlined below are the professional services to be provided by Kimley-Horn.
LS = Lump Sum Fee Type
HR = Hourly Fee (Projected)
Task 1 Concept Design Plans (Intersections)
Kimley-Horn will attend a design kick-off meeting with the Client to discuss their vision for the project.
In this initial meeting, Kimley-Horn and the Client will confirm the scope of the improvements related to
Kimley-Horn's scope of work. Based on information from the meeting, Kimley-Horn will develop a set
of concept sketches of proposed features illustrating the general scope, scale, and relationship of
design components and submit them to the Client for review. Kimley-Horn will provide up to three (3)
preliminary design concepts. It is understood that the graphic inspiration for the MSE walls is to follow
along the lines of stylized music.
The elements to be illustrated in the Preliminary Concept Plan(s) are expected to be limited to:
• Architectural elements of major wall sections
• Architectural elements of vertical columns on overpasses
• General hardscape patterns
As a part of this task, Kimley Horn will attend one (1) Client review meeting to review the preliminary
design concepts. Based on input received during the initial design review meeting, Kimley-Horn will
attend one (1) additional meeting with the client to present one (1) final concept design package. Upon
approval of the final concept design package, that package will be used as a basis for preparing the
Landscape Architecture Schematic Design Plans. If additional Client comment revisions are required,
then this effort will be billed at our then current hourly rate schedule.
Task 2 Schematic Design Plans (Intersections)
Based on the final concept design package approved by the Client, Kimley-Horn will develop a set of
Schematic Plans of proposed features illustrating the general scope, scale, and relationship of design
components and submit them to the Client for review. Kimley-Horn will provide up to three (3)
preliminary design concepts.
The elements to be illustrated in the Preliminary Schematic Plan are expected to be limited to:
• Architectural elements of major wall sections
• Architectural elements of vertical columns on overpasses
• General hardscape patterns
6160 Warren Parkway, Suite 210, Frisco, TX 75034
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• Pedestrian & trail connectivity layout
• Landscape concept plantings
• Schematic Lighting Design
As a part of this task, Kimley Horn will attend one (1) Client review meeting to review the preliminary
schematic design concepts. Based on input received during the initial design review meeting, Kimley-
Horn will attend one (1) additional meeting with the Client to present one (1) final schematic design
package. Upon approval of the final schematic design package, that package will be used as a basis
for preparing the Landscape Architecture Construction Documents (Not included in this agreement). If
additional Client comment revisions are required, then this effort will be billed at our then current hourlyrate schedule.
Kimley Horn will prepare one (1) Opinion of Probable Construction Cost (OPCC) for Client review as
part of this task. Because the Consultant does not control the cost of labor, materials, equipment, or
services furnished by others, methods of determining prices, or competitive bidding or market
conditions, any opinions rendered as to costs, including but not limited to opinions as to the costs of
construction and materials, shall be made on the basis of its experience and represent its judgment as
an experienced and qualified professional, familiar with the industry. The Consultant cannot and does
not guarantee that proposals, bids or actual costs will not vary from its opinions of cost.
Kimley-Horn will create an OPCC for safety lighting and aesthetic lighting for the subject project. This
will include most current low bid constructions costs of items such as conduit, light pole, foundation,
light fixture, conductor, and electrical service.
This task will also consist of a preliminary material take-off and determining quantities and units for
each of the previously described bid items.
Task 3 Concept Design Plans (Entries and Wayfinding)
Kimley-Horn will attend a Design kick-off meeting with the Client to discuss their vision for the project.
In this initial meeting, Kimley-Horn and the Client will identify the detailed scope of the improvements.
Based on information from the meeting, Kimley-Horn will develop a set of concept sketches of proposed
features illustrating the general scope, scale, and relationship of design components and submit them
to the Client for review. Kimley-Horn will provide up to three (3) preliminary design concepts.
The elements to be illustrated in the Preliminary Schematic Plan are expected to be limited to:
• Entry monumentation at Milam Road
• Major and minor wayfinding elements along the corridor
• Major element at the UNT merge intersection
As a part of this task, Kimley Horn will attend one (1) Client review meeting to review the preliminary
schematic design concepts. Based on input received during the initial design review meeting, Kimley-
Horn will attend one (1) additional meeting with the client to present one (1) final schematic design
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package. Upon approval of the final schematic design package, that package will be used as a basis
for preparing the Landscape Architecture Schematic Design Plans. If additional Client comment
revisions are required, then this effort will be billed at our then current hourly rate schedule.
Task 4 Schematic Design Plans (Entries and Wayfinding)
Kimley-Horn will attend a Design kick-off meeting with the Client to discuss their vision for the project.
In this initial meeting, Kimley-Horn and the Client will identify the detailed scope of the improvements.
Based on information from the meeting, Kimley-Horn will develop a set of concept sketches of proposed
features illustrating the general scope, scale, and relationship of design components and submit them
to the Client for review. Kimley-Horn will provide up to three (3) preliminary design concepts.
The elements to be illustrated in the Preliminary Schematic Plan are expected to be limited to:
•
•
•
•
•
•
•
Entry monumentation at Milam Road
Major and minor wayfinding elements along the corridor
Major element at the UNT merge intersection
Enhanced hardscape
Enhanced landscape plantings
Amenity features such as raised planters, canopies, seating areas, etc.
Schematic Lighting Design
As a part of this task, Kimley Horn will attend one (1) Client review meeting to review the preliminary
schematic design concepts. Based on input received during the initial design review meeting, Kimley-
Horn will attend one (1) additional meeting with the client to present one (1) final schematic design
package. Upon approval of the final schematic design package, that package will be used as a basis
for preparing the Landscape Architecture Construction Documents (Not included in this agreement). If
additional Client comment revisions are required, then this effort will be billed at our then current hourlyrate schedule.
Kimley Horn will prepare one (1) Opinion of Probable Construction Cost for Client review as part of this
task. Because the Consultant does not control the cost of labor, materials, equipment, or services
furnished by others, methods of determining prices, or competitive bidding or market conditions, any
opinions rendered as to costs, including but not limited to opinions as to the costs of construction and
materials, shall be made on the basis of its experience and represent its judgment as an experienced
and qualified professional, familiar with the industry. The Consultant cannot and does not guarantee
that proposals, bids, or actual costs will not vary from its opinions of cost.
Task 5 Meetings / Coordination (During Design)
Kimley-Horn can be available to attend design team meetings, Client meetings, and/or conference calls
and any other project related meetings not listed in previous task items. This task includes up to sixty
(60) hours of meetings in addition to the quantity provided in the tasks above. Should additional
6160 Warren Parkway, Suite 210, Frisco, TX 75034
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meetings or coordination be required, this effort will be billed on an hourly basis at the then current
hourly rate schedule.
ADDITIONAL SERVICES
Kimley-Horn can provide the following services, however; they are not included in the scope of this
Agreement:
1
2
Design Development PlansConstruction Documents
3.Bidding Assistance
Construction Phase Services4.
5 Structural engineering of walls, fencing, columns, and structures.
Lighting Photometrics / Circuitry
Lighting Footing Design / Engineering
Preparation of Record Drawings
3D Renderings and/ or 3D Fly Through Videos
6.
8
9
10. Drawing revisions requested after Construction Documents are complete
11. Any item not specifically included in the Scope of Services
SCHEDULE
Vertical walls and decorative flatwork:
Schematic Design Concepts to TxDOT – March 1, 2022
Construction Documents to TxDOT – June 1 , 2022
Landscape Design and Wayfinding Elements:
Schematic Design Concepts to City – April 2022
Construction Documents to City - TBD
INFORMATION PROVIDED BY THE CLIENT
We shall be entitled to rely on the completeness and accuracy of all information provided by the Client.
The Client shall provide information requested by Kimley-Horn during the project, including but not
limited to the following:
1.
2.
3.
4
5
It is understood that the City will provide the basis of design for the required medallions to be
modified into the form liner design.
It is understood that the City may engage a local artist to assist in the design of major and/or
minor wayfinding elements.
It is understood that the City will perform the iterative design presentations to City Council, Art
Committee and any other entities or groups determined by the City. Kimley-Horn will providethe exhibits as a part of the tasks included below.
Permission to enter the subject property;
Executed copy of this Agreement
6160 Warren Parkway, Suite 210, Frisco, TX 75034
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FEE AND BILLING
Basic Services provided for a lump sum fee:
Task 1
Task 2Task 3
Task 4
Concept Design Plans (Intersections)
Schematic Design Plans (Intersections)
Concept Design Plans (Entries and Wayfinding)
Schematic Design Plans (Entries and Wayfinding)
$
$
$
$
$
15,500.00
19, 000.00
20,250.00
35,500.00
Total Lump Sum Direct Costs 90,250.00
Basic Services provided for an hourly rate fee:
Task 5 Meetings/ Coordination During Design $ 17,500.00
Total Hourly Fee (Projected)
Office Expense 5%
$
$
$
107,750.00
5, 387.00
Grand Total (Projected)113, 137.00
Kimley-Horn will not exceed the total maximum labor fee shown without authorization from the Client.Individual task amounts are provided for budgeting purposes only. Kimley-Horn reserves the right toreallocate amounts among tasks as necessary.
Labor fee will be billed on an hourly basis according to our then-current rates. Direct reimbursableexpenses such as express delivery services, fees, air travel, and other direct expenses will be billed at
1.15 times cost. A percentage of labor fee will be added to each invoice to cover certain other expensesas to these tasks such as telecommunications, in-house reproduction, postage, supplies, project relatedcomputer time, and local mileage. Administrative time related to the project may be billed hourly. Allpermitting, application, and similar project fees will be paid directly by the Client. Should the Clientrequest Kimley-Horn to advance any such project fees on the Client’s behalf, a separate invoice forsuch fees, with a fifteen percent (15%) markup, will be immediately issued to and paid by the Client.
Payment will be due within 25 days of your receipt of the invoice and should include the invoice numberand Kimley-Horn project number.
6160 Warren Parkway, Suite 210, Frisco, TX 75034
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CLOSURE
In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to,
the terms and conditions in the attached Standard Provisions, which are incorporated by reference.
As used in the Standard Provisions, the term "Consultant" shall refer to Kimley-Horn and Associates,
Inc., and the term "Client" shall refer to the City of Denton.
If you concur in all the foregoing and wish to direct us to proceed with the services, please have
authorized persons execute both copies of this Agreement in the spaces provided below retain one
copy and return the other to us. Fees and times stated in this Agreement are valid for sixty (60) daysafter the date of this letter,
We appreciate the opportunity to provide these services to you. Please contact me if you have any
questions,
Best Regards,
KIMLEY-k{ORN AND ASSOCIATES, INCb
Jol IU
anager Senior Vice President
Attachments: Standard Provisions
ISTAgreed to this ]ANUARYday of 2022
Ci B
SMA HowtO
!!HI
Sara Hensley
(Print Name)
Title: Interlm CltY Manager
6160 Warren Parkway, SuIte 210, Frisco, TX 75034
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KIMLEY-HORN AND ASSOCIATES, INC.STANDARD PROVISIONS
(1) Consultant's Scope of Services and Additional Services. The Consultant will perform only the servicesspecifically described in this Agreement. If requested by the Client and agreed to by the Consultant, the Consultantwill perform Additional Services, which shall be governed by these provisions. Unless otherwise agreed to in writing,the Client shall pay the Consultant for any Additional Services an amount based upon the Consultant's then-currenthourly rates plus an amount to cover certain direct expenses including telecommunications, in-house reproduction,postage, supplies, project related computer time, and local mileage. Other direct expenses will be billed at 1.15 timescost
(2) Client's Responsibilities. In addition to other responsibilities herein or imposed by law, the Client shall(a) Designate in writing a person to act as its representative, such person having complete authority to transmitinstructions, receive information, and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project andall standards of development, design, or construction.(c) Provide the Consultant all available studies, plans, or other documents pertaining to the project, such as surveysengineering data, environmental information, etc., all of which the Consultant may rely upon.(d) Arrange for access to the site and other property as required for the Consultant to provide its services.(e) Review all documents or reports presented by the Consultant and communicate decisions pertaining thereto withina reasonable time so as not to delay the Consultant,(D Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals andconsents from other parties as may be necessary.(g) Obtain any independent accounting, legal, insurance, cost estimating and feasibility services required by Client.(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affectsthe Consultants services or any defect or noncompliance in any aspect of the project.
(3) Period of Services. Unless otherwise stated herein, the Consultant will begin work after receipt of a properlyexecuted copy of this Agreement. This Agreement assumes conditions permitting continuous and orderly progressthrough completion of the services. Times for performance shall be extended as necessary for delays or suspensionsdue to circumstances that the Consultant does not control. If such delay or suspension extends for more than sixmonths, Consultant’s compensation shall be renegotiated
(4) Method of Payment. Client shall pay Consultant as follows:(a) Invoices will be submitted periodically for services performed and expenses incurred. Payment of each invoice willbe due within 25 days of receipt. The Client shall also pay any applicable sales tax. All retainers will be held by theConsultant and applied against the final invoice. Interest will be added to accounts not paid within 25 days at the rateof 1 2% per year beginning on the 25tf1 day. If the Client fails to make any payment due under this or any other agreement
within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving notice to the Clientsuspend services and withhold deliverables until all amounts due are paid.(b) if the Client relies on payment or proceeds from a third party to pay Consultant and Client does not pay Consultant’sinvoice within 60 days of receipt, Consultant may communicate directly with such third party to secure payment.(c) if the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receiptof the invoice or the Client’s objections will be waived, and the invoice shall conclusively be deemed due and owing. Ifthe Client objects to only a portion of the invoice, payment for all other portions remains due,(d) if the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, itsreasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expensesshall include the cost, at the Consultant's normal hourly billing rates, of the time devoted to such proceedings by itsemployees
(e) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The Consultantmay negotiate payment of any check tendered by the Client, even if the words “in full satisfaction” or words intended tohave similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debtand without prejudicing any right of the Consultant to collect additional amounts from the Client.
(5) Use of Documents. All documents and data prepared by the Consultant are related exclusively to the servicesdescribed in this Agreement, and may be used only if the Client has satisfied all of its obligations under this Agreement.They are not intended or represented to be suitable for use or reuse by the Client or others on extensions of this projector on any other project. Any modifications by the Client to any of the Consultant's documents, or any reuse of thedocuments without written authorization by the Consultant will be at the Client's sole risk and without liability to theConsultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, lossesand expenses, including but not limited to attorneys' fees, resulting therefrom. The Consultant’s electronic files andsource code remain the property of the Consultant and shall be provided to the Client only if expressly provided for inthis Agreement. Any electronic files not containing an electronic seal are provided only for the convenience of the
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DocuSign Envelope ID: BA450AFF-9551451A-8B3F-B2903A04B3E8
Client, and use of them is at the Client’s sole risk. In the case of any defects in the electronic files or any discrepanciesbetween them and the hardcopy of the documents prepared by the Consultant, the hardcopy shall govern.
(6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or servicesfurnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions renderedas to costs, including but not limited to the costs of construction and materials, are made solely based on its judgmentas a professional familiar with the industry. The Consultant cannot and does not guarantee that proposals, bids oractual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any cost,it shall employ an independent cost estimator. Consultant's services required to bring costs within any limitationestablished by the Client will be paid for as Additional Services.
(7) Termination. The obligation to provide further services under this Agreement may be terminated by either partyupon seven days' written notice in the event of substantial failure by the other party to perform in accordance with theterms hereof, or upon thirty days’ written notice for the convenience of the terminating party. The Consultant shall be
paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expensesincurred by the Consultant as a result of such termination.
(8) Standard of Care. The standard of care applicable to Consultant's services will be the degree of care and skill
ordinarily exercised by consultants performing the same or similar services in the same locality at the time the servicesare provided. No warranty, express or implied, is made or intended by the Consultant's performance of services, andit is agreed that the Consultant is not a fiduciary with respect to the Client.
(9) LIMITATION OF LIABILITY. IN RECOGNITION OF THE RELATIVE RISKS AND BENEFITS OF THEPROJECT TO THE CLIENT AND THE CONSULTANT, THE RISKS ARE ALLOCATED SUCH THAT, TO THEFULLEST EXTENT ALLOWED BY LAW. AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THISAGREEMENT OR THE EXISTENCE OF APPLICABLE INSURANCE COVERAGE, THAT THE TOTAL LIABILITY, INTHE AGGREGATE, OF THE CONSULTANT AND THE CONSULTANT'S OFFICERS, DIRECTORS, EMPLOYEES,AGENTS. AND SUBCONSULTANTS TO THE CLIENT OR TO ANYONE CLAIMING BY, THROUGH OR UNDER THECLIENT, FOR ANY AND ALL CLAIMS, LOSSES, COSTS OR DAMAGES WHATSOEVER ARISING OUT OF OR INANY WAY RELATED TO THE SERVICES UNDER THIS AGREEMENT FROM ANY CAUSES. INCLUDING BUT NOTLIMITED TO. THE NEGLIGENCE, PROFESSIONAL ERRORS OR OMISSIONS, STRICT LIABILITY OR BREACH OFCONTRACT OR ANY WARRANTY, EXPRESS OR IMPLIED, OF THE CONSULTANT OR THE CONSULTANT'SOFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUBCONSULTANTS, SHALL NOT EXCEED TWICE THETOTAL COMPENSATION RECEIVED BY THE CONSULTANT UNDER THIS AGREEMENT OR $50,000,WHICHEVER IS GREATER. HIGHER LIMITS OF LIABILITY MAY BE NEGOTIATED FOR ADDITIONAL FEE. THISSECTION 9 IS INTENDED SOLELY TO LIMIT THE REMEDIES AVAILABLE TO THE CLIENT OR THOSE CLAIMING
BY OR THROUGH THE CLIENT, AND NOTHING IN THIS SECTION 9 SHALL REQUIRE THE CLIENT TOINDEMNIFY THE CONSULTANT.
(10) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for anyconsequential, incidental, punitive, or indirect damages including but not limited to loss of income or loss of profits.
(11) Construction Costs. Under no circumstances shall the Consultant be liable for extra costs or otherconsequences due to unknown conditions or related to the failure of contractors to perform work in accordance withthe plans and specifications. Consultant shall have no liability whatsoever for any costs arising out of the Client's
decision to obtain bids or proceed with construction before the Consultant has issued final, fully-approved plans andspecifications. The Client acknowledges that all preliminary plans are subject to substantial revision until plans are fully
approved and all permits obtained
(12) Certifications. All requests for the Consultant to execute certificates, lender consents, or other third-party relianceletters must be submitted to the Consultant at least 14 days prior to the requested date of execution. The Consultantshall not be required to execute certificates, consents, or third-party reliance letters that are inaccurate, that relate tofacts of which the Consultant does not have actual knowledge, or that would cause the Consultant to violate applicablerules of professional responsibility.
(13) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted firstto mediation in accordance with the American Arbitration Association as a condition precedent to litigation. Anymediation or civil action by Client must be commenced within two years of the accrual of the cause of action assertedbut in no event later than allowed by applicable statutes.
(14) Hazardous Substances and Conditions. Consultant shall not be a custodian, transporter, handler, arranger,contractor, or remediator with respect to hazardous substances and conditions. Consultant's services will be limited toanalysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal,
Rev 10/2020
2
DocuSign Envelope ID: BA450AFF-9551451A-8B3F-B2903A04B3E8
or remediation. The Consultant will notify the Client of unanticipated hazardous substances or conditions of which the
Consultant actually becomes aware. The Consultant may stop affected portions of its services until the hazardoussubstance or condition is eliminated
(15) Construction Phase Services.
(a) if the Consultant prepares construction documents and the Consultant is not retained to make periodic site visits,
the Client assumes all responsibility for interpretation of the documents and for construction observation, and the Clientwaives any claims against the Consultant in any way connected thereto.
(b) The Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choiceand usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority orresponsibility to stop or direct the work of any contractor. The Consultant's visits will be for the purpose of endeavoringto provide the Client a greater degree of confidence that the completed work of its contractors will generally conform tothe construction documents prepared by the Consultant. Consultant neither guarantees the performance ofcontractors, nor assumes responsibility for any contractor’s failure to perform its work in accordance with the contractdocuments
(c) The Consultant is not responsible for any duties assigned to it in the construction contract that are not expresslyprovided for in this Agreement. The Client agrees that each contract with any contractor shall state that the contractorshall be solely responsible for job site safety and its means and methods; that the contractor shall indemnify the Clientand the Consultant for all claims and liability arising out of job site accidents; and that the Client and the Consultantshall be made additional insureds under the contractor's general liability insurance policy.
(16) No Third-Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefitsto anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this
Agreement will be for the sole benefit of the Client and the Consultant. The Client shall not assign or transfer any rightsunder or interest in this Agreement, or any claim arising out of the performance of services by Consultant, without thewritten consent of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as itdeems appropriate due to project logistics, schedules, or market conditions. If the Consultant exercises this right, theConsultant will maintain the agreed-upon billing rates for services identified in the contract, regardless of whether theservices are provided by in-house employees, contract employees, or independent subconsultants.
(17) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the projectand to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of itsservices. If, however, any facts, data or information are specifically identified in writing by the Client as confidential,the Consultant shall use reasonable care to maintain the confidentiality of that material.
(18) Miscellaneous Provisions. This Agreement is to be governed by the law of the State of Texas. This Agreementcontains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneousnegotiations, representations. agreements or understandings, whether written or oral. Except as provided in Section1, this Agreement can be supplemented or amended only by a written document executed by both parties. Anyconflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expresslyrejected by the Consultant. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of
such unenforceability without invalidating the remaining provisions. The non-enforcement of any provision by eitherparty shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the
remainder of this Agreement.
Rev 10/2020
DocuSign Envelope ID: BA450AFF-9551451A-8B3F-B2903A04B3E8
CONFLICT OF INTEREST QUESTIONNAIRE -For vendor or other Person doina business with local governmental enti
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 asdefined 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 thedate 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 amisdemeanor.
a My.Kim1 ey-Horn and Associates , Inc .rD 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 dayafter 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
Tlris section, (item 3 including subparts 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 govemment officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?n Yes B No
B Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer
named in this section AND the taxable income is not received from the local governmental entity?[] Yes [i] 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 anofficer or director, or holds an ownership of one percent or more?n Yes M No
D Describe each employment or business and family relationship with the local government officer named in this section
4
5
[d I have no Conflict of Interest to disclose.
&#IMf 1/25/2022
Signature ofvendo;-doing business with the governmental entity Date
[kx>uSign
Certificate Of Completion
Envelope Id: BA450AFF9551451 A8B3FB2903A04B3E8
Subject: Please DocuSign: City Council Contract 7599-007
Status: Completed
Source Envelope,
Document Pages: 30 Signatures: 7
Initials: 1Certificate Pages: 6
AutoNav: Enabled
Envelopeld Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
Envelope Originator:
Erica Garcia
901 B Texas Street
Denton, TX 76209
erica.garcia@cityofdenton. comIP Address: 198.49.140.104
Record Tracking
Status: Original
1/24/2022 4:14:01 PM
Holder: Erica Garcia
erica.garcia@cityofdenton,com
Location: DocuSign
Signer Events
Erica Garcia
erica.garcia@cityofdenton.com
Buyer
City of Denton
Security Level: Email, Account Authentication(None)
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Signature Timestamp
Sent: 1/24/2022 4:24:41 PM
Viewed: 1/24/2022 4:24:58 PM
Signed: 1/24/2022 4:26:03 PM
Completed
Using IP Address: 198.49.140.104
Lori Hewell
lori.hewell@cityofdenton,corn
Purchasing Manager
City of Denton
Security Level: Email, Account Authentication(None)
Sent: 1/24/2022 4:26:05 PM
Viewed: 1/24/2022 4:28:59 PM
Signed: 1/24/2022 4:29:20 PM
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.104
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Marcella Lunn
marcella.lunn@cityofdenton.com
Catherine Clifton, Interim City Attorney
City of Denton
Security Level: Email, Account Authentication(None)
Sent: 1/24/2022 4:29:22 PM
Viewed: 1/24/2022 5:19:56 PM
Signed: 1/24/2022 5:22:38 PM
Signature Adoption: Pre-selected Style
Using IP Address: 68.191.210.54
Signed using mobile
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Scott Arnold
Scott.arnold@kimley-horn .com
Vice President
Kimley-Horn and Associates, Inc.
Security Level: Email, Account Authentication(None)
'DoeuSi9n•d by:1 1.4th&'DIB5A8a061EE4E9
Sent: 1/24/2022 5:22:42 PM
Viewed : 1/25/2022 8:45:17 AM
Signed: 1/25/2022 2:24:58 PM
Signature Adoption: Uploaded Signature Image
Using IP Address: 208.127.245.208
Electronic Record and Signature Disclosure:Accepted: 3/27/2020 10:55:11 AMID: alf38400-e5cc-4b57-8548-4dd7e031355d
Signer Events
Gary Packan
Gary.Packan@cityofdenton.com
Director of Parks and Recreation
Parks and Recreation
Security Level: Email, Account Authentication(None)
Signature Timestamp
Sent: 1/25/2022 2:25:01 PM
Viewed: 1/25/2022 2:57:51 PM
Signed: 1/25/2022 2:58:56 PM
Signature Adoption: Pre-selected Style
Using iP Address: 198.49.140.10
Electronic Record and Signature Disclosure:Accepted: 1/25/2022 2:57:51 PMID: bdc9795b-485b4fa9-98b2-bld02939c951
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Procurement Administration Supervisor
City of Denton
Security Level: Email, Account Authentication(None)
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Completed Sent: 1/25/2022 2:58:59 PM
Viewed: 2/2/2022 8:07:28 AM
Signed: 2/2/2022 8:12:18 AMUsing IP Address: 198.49.140.104
Sara Hensley
sara.hensley@cityofdenton.com
Interim City Manager
City of Denton
Security Level: Email, Account Authentication(None)
'DocuSign•d by:I SMA IIoqq
' 523608296270423_,
Sent: 2/2/2022 8:12:21 AM
Viewed: 2/2/2022 8:14:28 AM
Signed: 2/2/2022 8:14:35 AM
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.10
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Rosa Rios
rosa.rios@cityofdenton.com
City Secretary
Security Level: Email. Account Authentication(None)
Sent: 2/2/2022 8:14:39 AM
Viewed : 2/2/2022 8:40:59 AM
Signed: 2/2/2022 8:41:51 AM
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.104
Electronic Record and Signature Disclosure:Accepted: 2/2/2022 8:40:59 AMID: 2f3a86e0-1369-4fOe-ald8-7f1 b0954f698
In Person Signer Events Signature
Status
Timestamp
Editor Delivery Events Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status
Status
Timestamp
Carbon Copy Events
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Contract Administrator
City of Denton
Security Level: Email, Account Authentication(None)
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Timestamp
Sent: 1/24/2022 4:26:05 PM
Carbon Copy Events
Gretna Jones
gretna.jones@cityofdenton,com
Legal Secretary
City of Denton
Security Level: Email, Account Authentication(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Status Timestamp
Sent: 1/25/2022 2:59:00 PM
Viewed : 1/25/2022 2:59:59 PM
City Secretary Office
citysecretary@cityofdenton.com
Security Level: Email, Account Authentication(None)
Electronic Record and Signature Disclosure:Not Offered via DocuSign
Sent: 2/2/2022 8:41 :54 AM
Drew Huffman
Drew.Huffman@cityofdenton.com
Parks and Recreation Assistant Director
Security Level: Email, Account Authentication(None)
Electronic Record and Signature Disclosure:Accepted : 7/13/2018 2:52:26 PMID: 0fcc9a04-4fe5-41d0-935e-32877832cf92
Sent: 2/2/2022 8:41 :55 AM
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events
Envelope Sent
Certified Delivered
Signing Complete
Completed
Status Timestamps
1/24/2022 4:24:41 PM
2/2/2022 8:40:59 AM
2/2/2022 8:41:51 AM
2/2/2022 8:41 :55 AM
Hashed/Encrypted
Security Checked
Security Checked
Security Checked
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM
Parties agreed to: Scott Arnold, Gary Packan, Rosa Rios, Drew Huffman
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, City of Denton (we, us or Company) may be required by law to provide to
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If you decide to receive notices and disclosures from us electronically, you may at any time
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If you elect to receive required notices and disclosures only in paper format, it will slow the
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All notices and disclosures will be sent to you electronically
Unless you tell us otherwise in accordance with the procedures described herein, we will provide
electronically to you through your DocuSign user account all required notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided or
made available to you during the course of our relationship with you. To reduce the chance of
you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required
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How to contact City of Denton:
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To contact us by email send messages to: purchasing@cityofdenton.com
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To let us know of a change in your e-mail address where we should send notices and disclosures
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88 These minimum requirements are subject to change. If these requirements change, we will
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