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AmendedbyOrdinanceNo.201733611/07/17TJ
AmendedbyOrdinanceNo.1916202/26/19JR
ORDINANCENO. M -Ll~a
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR DESIGN AND
ENGINEERING SERVICES RELATING TO THE PECAN CREEK TRIBUTARY PEC-4
DRAINAGE IMPROVEMENTS PHASES 1 AND 2 FOR THE CITY OF DENTON
ENGINEERING DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 4308-AWARDED TO FREESE
AND NICHOLS, INC., IN AN AMOUNT NOT-TO-EXCEED $301,545).
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 I. The City Manager is hereby authorized to enter into a professional service
contract with Freese and Nichols, Inc., to provide professional design and engineering services for
the Pecan Creek Tributary drainage improvements, a copy of which is attached hereto and
incorporated by reference herein.
SECTION II. The City Manager is authorized to expend funds as required by the attached
contract.
SECTION III. The findings in the preamble of this ordinance are incorporated herein by
reference.
SECTION IV. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the J day of ,2009.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
r
BY:
3-O ile 4308
PROFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
THIS AGREEMENT is made and entered into as of the day of~
20by and between the City of Denton, Texas, a Texas municipal corporation, ith its principal
office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner"
and Freese and Nichols, Inc., with its corporate office at 4055 International Plaza, Suite 200, Fort Worth,
Texas 76109 hereinafter called "FNI," acting herein, by and through their duly authorized representatives.
In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree
as follows:
SECTION 1
EMPLOYMENT OF DESIGN PROFESSIONAL
The City of Denton PEC-4 Drainage Improvements (the Project) will include the preparation of
construction documents for the following facilities:
Phase I of the project consists of approximately 700 linear feet (LF) of channel improvements
and appurtenant drainage structures including two (2) roadway crossings at Wainwright and
Locust, associated paving improvements, water and sewer utility adjustments and relocations.
Phase I extends from the PEC-4 confluence with Pecan Creek to the upstream side of Locust
Street.
Phase II of the project consists of 900 LF of channel improvements and appurtenant
structures as described in Phase 1. The project includes two (2) roadway crossings at Elm and
Prairie. Phase 11 extends from the upstream side of Locust Street (the upstream end of Phase
I) to the upstream side of Prairie Street.
The Project will include design and preparation of construction documents for the improvements listed
above. A single bid package will be prepared for the construction of the Phases described above.
SECTION 2
COMPENSATION
The project will have a total fee of $301,545.00, divided such that $258,765.00 is Basic Services and
$42,780.00 is Special Services as outlined below. The Owner shall compensate the Design Professional as
follows:
2.1 BASIC SERVICES
2.1.1 For Basic Services and related Expenses for Article 1, Tasks A-C, the total compensation shall
be a lump sum amount of $258,765.
Progress payments for Basic Services shall be paid monthly as a percentage of the total compensation
for the Basic Services satisfactorily completed.
Page 1
Revised 05-06-2009
2.2 SPECIAL SERVICES
2.2.1 For Special Services of Article II-A, Environmental Permitting, a Lump Sum amount of
$27,500.
2.2.2 Compensation for easements for Special Services of Article II-B will be $550 per each
easement prepared. Fifteen easements are anticipated for this project, totaling $8,250.
Additional easements will be prepared at the same rate, only with written permission from the
OWNER
2.2.3 For Special Services of Article II-C, Geotechnical Engineering, the total compensation shall be
a Lump Sum amount of $7,030.
2.3 ADDITIONAL SERVICES
2.3.1 Compensation for Additional Services will be based on the attached schedule of charges.
2.3.2 Compensation for Additional Services of the consultant (FNI), shall be based on a multiple of
2.21 times the amounts billed to the Design Professional for such additional services.
SECTION 3
RIGHT TO AUDIT
The Owner shall have the right to audit and make copies of the books, records and computations
pertaining to this agreement. FNI shall retain such books, records, documents and other
evidence pertaining to this agreement during the contract period and five years thereafter, except
if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept
until all audit tasks are completed and resolved. These books, records, documents and other
evidence shall be available, within 10 business days of written request. Further, FNI shall also
require all subconsultants, material suppliers, and other payees to retain all books, records,
documents and other evidence pertaining to this agreement, and to allow the Owner similar
access to those documents. All books and records will be made available within a 50 mile radius
of the City of Denton. The cost of the audit will be borne by the Owner unless the audit reveals
an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable
cost of the audit, including any travel costs, must be borne by FNI which must be payable within
five business days of receipt of an invoice.
Failure to comply with the provisions of this section shall be a material breach of this contract
and shall constitute, in the Owner's sole discretion, grounds for termination thereof. Each of the
terms "books", "records", "documents" and "other evidence", as used above, shall be construed
to include drafts and electronic files, even if such drafts or electronic files are subsequently used
to generate or prepare a final printed document.
Page 2
Revised 05-06-2009
SECTION 4
ENTIRE AGREEMENT
This Agreement includes this executed agreement and the following documents all of which are attached
hereto and made a part hereof by reference as if fully set forth herein:
1. City of Denton General Conditions to Agreement for Architectural or Engineering Services.
2. Exhibit A (Scope of Services) through CO
3. Exhibit B (Schedule)
4. Figure 1 (Location Map).
THIS SPACE INTENTIONALLY LEFT BLANK
Page 3
Revised 05-06-2009
This Agreement is signed by the parties hereto effective as of the date first above written.
CITY OF DENTON
BY:
&GE C. CAMP ELL
CITY MANAGER
ATTEST:
JET IFER WALTERS, C YY] SECRETARY
BY~%~II ~C I YI vl /
APPRWED AS-TO LEGAL FORM:
ANITA BU G S, CITY NEY
BY:
Freese and Nichols, Inc.
BY
WITNESS:
BY:
Page 4
Revised 05-06-2009
CITY OF DENTON
GENERAL CONDITIONS
TO
AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES
ARTICLE]. ARCHITECT OR ENGINEER'S RESPONSIBILITIES
L I The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal") to which these
General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as
enunciated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services").
1.2 'The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skill ordinarily
exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely
actions (the "Degree of Card'). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project.
Upon request of the Owner, the Design Professional shall submit for the Owners approval a schedule for the performance of the Services which may be adjusted as the Project
proceeds, and shall include allowances for periods of time required for the Owners review and for approval of submissions by authorities having jurisdiction over the Project.
'rime limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any
adjustments to this schedule shall be mutually acceptable to both parties.
ARTICLE 2 SCOPE OF BASIC SERVICES
2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Sections 2.2 through 2.6 of these General Conditions and include
without limitation normal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accumle set of
Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owners needs and to establish the
requirements for the Project.
2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in
terms of the other, subject to the limitations set forth in Subsection 5.2.1.
2.2.3 the Design Professional shall review with the owner alternative approaches to design and construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner,
Schematic Design Documents consisting of drawings and other documents tllwtmting the scale and relationship of Project components. 'The Schematic Design shall
contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations.
2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and
which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the
commencement to the completion of construction.
2.3 DESIGNDEVELOPMENTPHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design
Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the sire and
character of the Project as to architectural, structural, mechanical and cl ctrical systems, materials and such other elements as may be appropriate, which shall comply
with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owners approval of the documents, Design Professional represents that the
Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project.
2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described
in Section 2.2.5.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget
authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting
forth in detail requirements for the construction ofthe Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations.
2.4.2 'The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement fortes, the
Conditions of the contract, and the form of Agreement between the Owner and contractor.
2.4.3 The Design Professional shall advise the Owner of my adjustments to previous preliminary estimates of Constmction Cost indicated by changes in requirements
or general market conditions.
2.4.4 The Design Professional shall assist the Owner in connection with the (tuners responsibility for filing documents required for the approval of governmental
authorities having jurisdiction over the Project.
2.5 CONSTUCTION CONTRACT PROCUREMENT
2.5.1 'the Design Professional, following the Owners approval of the Constmction Documents and of the latest preliminary detailed estimate of Construction Cost,
shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including wahom
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limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the construction contract is in
the sole discretion of the Owner.
2.5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable
Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and expense, will revise the Construction
Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed
the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs.
2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract
for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2.
2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionalss the administration
shall also be in accordance with AIA document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement as may be
amended by the City of Denton special conditions, unless otherwise provided in the Agreement For engineers the administration shall also be in accordance with the
Standard Specifications for Public Works Construction by the North Central Texas Council of Governments, current as of the date ofthe Agreement, unless otherwise
provided in the Agreement.
2.6.3 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without written
agreement of the Owner and Design Professional.
2.6A The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owners direction from
lime to time during the correction, or warranty period described in the Contract for Construction. 'Ihe Design Professional shall have authority to act on behalfofthe
Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument.
2.6.5 The Design Professional shall observe the construction site at least one time a week, while construction is in progress, and as reasonably necessary While
construction is not in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner
indicating that the work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner a written report subsequent to
each on-site visit. On the basis of on-site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall
exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Contractor or any
subcontractors. 'the Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement 'I he Design Professional shall
promptly cored any defective designs or specifications famished by the Design Professional at no cost to the Owner. The Owners approval, acceptance, use of or
payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the
Owners rights hereunder.
2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractor's schedules or
failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omis-
sions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any
other persons performing portions ofthe work.
2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress.
2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor
shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Design Professional.
2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractors Applications for Payment, the Design Professional
shall review and certify the amounts due the Contractor.
2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional's observations at the site as
provided in Subsection 2.6.5 and on the data comprising the Contractors Application for Payment, that the work has progressed to the point indicated and that the
quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents cor-
rectable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a
representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that
the Design Professional has (I) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor
has used money previously paid on account of the Contract Sum.
2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenever the Design
Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require
additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or
completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give rise
to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons
performing portions of the work.
2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractors submittals such as Shop Drawings, Product Demand
Samples for the purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, "lien
completed, will be in compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable promptness to cause no
delay in the work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to
permit adequate review. Review of such submittals is not conducted for the purpose ofdeterminingthe accuracy and completeness of other details such as dimensions
and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the
responsibility of the Contractor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions
or, unless otherwise specifically staled by the Design Professional of construction means, methods, techniques, sequences or procedures. The Design Professional's
approval ofa specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics
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of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the
materials, systems or equipment will meet the performance criteria required by the Contract Documents.
2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by
the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may
authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent
of the Contract Documents.
2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if
requested by the Owner shall issue Certificates of Substantial and Final Completion. The Design Professional will receive and review written guarantees and related
documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the
requirements of the Contract Documents.
2.6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor under the requirements
of Ihe Contract Documents on written request of either the Owner or Contractor. 'I he Design Professional's response to such requests shall be made with reasonable
promptness and within any time limits agreed upon.
2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall
be in writing or in the form ofdmwings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance
by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this
Agreement and in the absence of negligence.
2.6.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and
Contractor relating to the execution or progress of the work as provided in the Contract Documents.
2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care, (2) will reimburse the Owner for all damages
caused by the detective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any
rights the Owner may have underthe Agreement or diminish any of the Design Professional's obligations thereunder.
2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Construction Documents during
the Construction Phase.
ARTICLF,3 ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 "Ihe services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the
Owner as provided in the Agreement, in addition to the compensation for Basic Services. Tile services described under Sections 3.2 and 3A shall only be provided if
authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond
the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives written
approval from the Owner to proceed. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Design Professional
shall have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if
they are not required due to the negligence or fault of Design Professional.
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1 If more extensive representation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project
Representatives to assist in carrying out such additional on-site responsibilities.
3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefor as
agreed by the Owner and Design Professional.
3.3 CONTINGEN,r ADDITIONALSERVICES
3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are.
L inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owners
program or Project budget;
2" required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or
3, due to changes required as a result of the Owners failure to render decision in a timely manner.
3.3.2 Providing services required because of significant changes in the Project including but not limited to, size, quality, complexity, or the Owners schedule, except
for services required under Subsection 2.5.2.
3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and
Construction Change Directives.
3.3.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with
the replacement of such work.
3.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of performance
of either the Owner or Contractor under the Contract for Construction.
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3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work.
3.3.7 Providing services in connection with a public hearing arbitration proceeding or legal proceeding except where the Design Professional is party thereto.
3.3.8 Providing services in addition to those required by Article 2 for preparing documents for alternate, separate or sequential bids or providing services in connection
with bidding or construction prior to the completion of the Construction Documents Phase.
3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are
caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the
Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The
intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.3 9.
3.4 OPfIONALADDITIONAL SERVICES
3.4.1 Providing financial feasibility or other special studies.
3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites.
3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the
Project.
3.4.4 Providing services relative to future facilities, systems and equipment.
3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof
3.4.6 Providing services to verify the accuracy of drawings or other information furnished by the Owner.
3.4.7 Providing coordination of construction performed by separate contractors or by the Owners own forces and coordination of services required in connection with
construction performed and equipment supplied by the Owner.
3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor.
3.4.9 Providing analyses of operating and maintenance costs.
3.4.10 Making investigations, inventories of materials or equipment, or valuations and derailed appraisals of existing facilities.
3.4.12 Providing assistance in the ulilusition of equipment or systems such as testing adjusting and balancing preparation of operation and maintenance manuals,
training personnel for operation and maintenance and consultation during operation.
3.4.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related
equipment.
3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Wamanly,
period of the Contract for Construction.
3.4.15 Providing services of consultants for other than architectural, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of
Basic Services.
3.4.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural
practice.
3.4.17 Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work made during con-
struction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional.
3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are
caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the
Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The
intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18.
ARfIC1.E 4 OWNER'S RESPONSIBILITIES
4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Owners objectives, (2) schedule and design
constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as mom speci-
fically described in Subsection 2.2.1.
4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owners other costs and reasonable contingencies
related to all of these costs
4.3 If requested by the Design Professional, the Owner shall famish evidence that financial arrangements have been made to fulfill the Owners obligations under this
Agreement.
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4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project The Owner or such authorized representative shall
render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential
progress of the Design Professional's services.
4.5 Where applicable, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written
legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and
structures; adjacent drainage; rights-of-way, restrictions easements, encroachments, zoning deed restrictions, boundaries and contours of the site; locations,
dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both
public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a project benchmark.
4.6 Where applicable, the Owner shall furnish the services of geolechnical engineers when such services are requested by the Design Professional. Such services may
include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and re-
sistivity tests, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendations.
4.6.1 The Owner shall famish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Design
Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services.
4.7 When not a part of the Additional Services, the Owner shall furnish stmclural, mechanical, chemical, air and water pollution tests, tests of hazardous materials,
and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents
4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the
Owner may require to verify the Commences Applications for Payment or to aseenain how or for what purposes the Contractor has used the money paid by or on
behalf of the Owner.
4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be famished at the Owners expense, and the Design
Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional.
4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconformance with
the Contract Documents.
4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's consultants and
shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require
knowledge or services beyond the scope of the Agreement.
ARTICLES CONSTRUCf1ONCOS'f
5.1 CONSTRUCTION COST DEFINED
5.1.1 The Construction Cost shall be the total cost or estimated cost to the Omer of all elements of the Projectdesigned or specifiedby the Design Professional
-
5.1.2 the Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or
specially provided for by the Design Professional, plus a reasonable allowance for the Contractors overhead and profit. In addition, a reasonable allowance for con-
tingencies shall be included for market conditions at the time of bidding and for changes in the work during construction.
5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land, rights-of-way,
financing or other costs which are the responsibility of the Owner as provided in Article 4.
5.2 RESPONSIRII,1'rY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owners Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design
Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither
the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contractors methods of determining bid prices, or over
competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary
from the Owners Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional.
5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the furnishing, proposal or establishment ofa Project budget, unless
such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted
to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be
included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the
Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract
for Construction.
5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project
budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the dale ofsubmission
of the Construction Documents to the Owner and the date on which proposals are sought.
ARTICLE6 OWNERSIIIP AND USE OF DOCUMENTS
6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's service and shall
become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such
documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the
Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design
Professional is released from any and all liability relating to their use in that project
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6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication
in derogation of the Design Professional's reserved rights.
ARTICLE7 TERMINATION, SUSPENSION OR ABANDONMENT
7.1 The Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in accordance with the
terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof with or without cause upon thirty (30) days
prior written notice to the Design Professional. All work and labor being performed under the Agreement shall cease immediately upon Design Professional's receipt of such
notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt ofsuch notice. No
amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the
Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with anew Design Professional for continuation
of services on the Project, Design Professional shall cooperate in providing information.
7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to
notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption
and resumption of the Design Professional's services.
7.3 The Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently
abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written
notice.
7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non-
performance and cause for termination.
7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily perforated, the Design
Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement
7.6 In the event of termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to
termination.
ARTICLES PAYMENTSTOTHE DESIGN PROFESSIONAL
8.1 DIRECT PERSONNEL EXPENSE
8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their
mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays,
vacations, pensions and similar contributions and benefits.
8.2 REIMBURSABLE EXPENSES
8.2.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Design Professional and
Design Professional's employees and consultants in the interest of the Project, as identified in the following Clauses.
8.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out-of-town travel; long-distance communications;
and fees paid for securing approval of authorities havingjurisdiction over the Project.
8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings,
Specifications and other documents.
8.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates.
8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner,
8.2.1.5 Expense of computer-aided design and calling equipment time when used in connection with the Project.
8.2.1.6 Other expenses that are approved in advance in writing by the Owner.
8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the
basis set forth in Section 2 of the Agreement and the schedule of work.
8.3.2 If and to the extent that the dine initially established in the Agreement is exceeded or extended through no fault of the Design Professional, compensation forany
services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement.
8.3.3 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for
those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 of the
Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed
estimate of Construction Cost for such portions of the Project.
8.4 PAYMEN'T'S ON ACCOUNT OF ADDITIONAL SERVICES
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8AA Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days afler the
presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred.
8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld
from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible.
ARTICLE 9 INDEMNITY
9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability,
claims, demands, damages, losses, and expenses, including but not limited to court costs and reasonable attorney fees incurred by the Owner, and including, without
limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers,
shareholders, agents, or employees in the performance of the Agreement.
9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses,
both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which
defenses are hereby expressly reserved.
ARTICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an
insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Rest
Rafe Carriers of al least an A- or above:
10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate,
and with property damage limits of not less than $100,000 for each occurrence and not less than $250,000 in the aggregate.
10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property
damage limits ofnot less than $100,000 for each accident.
10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each
accident including occupational disease.
DOA Professional Liability Insurance with limits of not less than $ 1,000,000 annual aggregate.
10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 at the time
of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers'
Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or
modified without thirty (30) days' prior written notice to Owner and Design Professional. In such event, the Design Professional shall, prior to the effective date of the
change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article 10.
ARTICLE 11 MISCELLANEOUS PROVISIONS
11.1 The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County,
Texas.
11.2 'lire Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to
the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assign its
interests in the Agreement without the written consent of the Owner.
11.3 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 of the
Agreement %inch together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or
agreements, either written or oral- The Agreement may be amended only by written netmment signed by both Owner and Design Professional. When interpreting the
Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is
reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized,
such documents shall be given priority in the following order:
L 'the executed Agreement
2. Attachments referenced in Section 3 of the Agreement other than the Proposal
3. These General Provisions
4. The Proposal
11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design
Professional.
11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Project, including photographs
of the exterior and interior, among the Design Professional's promotional and professional materials. The Design Professional's materials shall not include the Owners
confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi-
dential or proprietary . The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project.
11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents,
subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such
responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants.
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11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective panics by depositing
same in the United Stales mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herein.
All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after mailing
11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the
remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform the Agreement to replace such
stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision.
11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they
may now read or hereinafter be amended during the term of this Agreement.
11.10 In performing the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex,
national origin or ancestry, age, or physical handicap.
11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement.
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EXHIBIT A
SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER
PEC-4 DRAINAGE IMPROVEMENTS PROJECT
FOR THE CITY OF DENTON
GENERAL: The City of Denton PEC-4 Drainage Improvements (the Project) will include the preparation
by Freese and Nichols, Inc. (hereinafter called FNI) of construction documents for the following facilities:
Phase I of the project consists of approximately 800 linear feet (LF) of channel improvements
and appurtenant drainage structures including two (2) roadway crossings at Wainwright and
Locust, associated paving improvements, water and sewer utility adjustments and relocations.
Phase 1 extends from the PEC-4 confluence with Pecan Creek to the upstream side of Locust
Street.
Phase 11 of the project consists of approximately 900 LF of channel improvements and
appurtenant structures as described in Phase 1. The project includes two (2) roadway crossings at
Elm and Prairie. Phase II extends from the upstream side of Locust Street (the upstream end of
Phase I) to the upstream side of Prairie Street.
The Project will include design and preparation of construction documents for the improvements listed above
with assistance from the OWNER. A single bid package will be prepared for the construction of the Phases
described above.
ARTICLE I
BASIC SERVICES:
The Project is defined as follows: This project will consist of Surveying, Final Design Plans, Specifications
and Construction Estimates and associated engineering tasks for Phases I and II of Upper PEC-4 Drainage
Improvements, based on preliminary design and CLOMR performed by another engineering firm. Phase I
extends from the confluence with Pecan Creek to the upstream side Locust Street in the alignment shown on
the attached Figure L Phase If provides continuation from the upstream end of Phase I at Locust Street to the
upstream side of Prairie Street. The existing open channel between Prairie and Wainwright will be filled and
replaced with a closed storm drain system sized to carry local flows only. The main flows of PEC-4 will be
carried in the revised alignment located north of the existing channel as shown on Figure 1. The project
includes drainage improvement design, as well as appurtenant water and sanitary sewer relocations within
the project vicinity.
Surveying and Geotechnical Engineering Services associated with this project will be included as sub-
consultant services to this project. The sub-consultants' scope of services are included as an Attachment to
this contract. Surveying services are included as Basic Services. Geotechnical Engineering services are
included in Special Services.
While the project is intended to be constructed in two phases, only one set of bid and construction documents
will be prepared. The design sheets and contract documents will be arranged such that the project can be
constructed in two phases with one set of drawings.
It was determined in Preliminary Design that a U.S. Army Corps of Engineers (USACE) Individual 404
Permit will be required for construction of this project. Those services will be performed as a sub-consultant
service included in this contract. The sub-consultant's scope of services is included in Special Services. FNI
R:\Contract\2009\Contract\2009\Denton\PEC-4 DesignAm Exhibit A-I
and the Environmental Sub-Consultant will assist and advise the OWNER regarding the optional solutions
for mitigation.
TxDOT permitting will be required for drainage improvements crossing Locust and Elm Streets. FNI will
meet with the OWNER and TxDOT (up to 3 meetings) to obtain permit approval. FNI will submit plans to
TxDOT through the OWNER for TxDOT review and approval. The OWNER will provide coordination and
facilitate communication with TxDOT.
FNI shall render the following professional services in connection with the development of the Project:
A. PRELIMINARY PHASE (50% Design Drawings)
FNI shall utilize the Conceptual Study with preliminary design alignment prepared by Teague Nall and
Perkins (TNP), dated August, 2008 as the source of preliminary design. FNI assumes that the preliminary
design as shown in the TNP Study has been reviewed and approved in concept by the OWNER. The project
alignment is based on Preliminary Design Report Option C (TNP, August 2008). Utilizing the alignment
shown in this study, FNI shall:
1. Plan, Coordinate, Attend and Facilitate a project kick-off meeting to discuss alignment, schedule
and any special design considerations.
2. Review drainage calculations prepared by TNP to confirm that the proposed design meets
OWNER'S drainage criteria.
Coordinate sub-consultant (Brittain and Crawford) design survey for project limits. Survey
services scope includes the following:
(a) Survey and prepare a design/topographic map, 60 feet in width, of the project area
outlined on Figure 1. The survey will be prepared in electronic media, based upon the
Texas State Plane Coordinate System, and NAVD 88 vertical datum (and matching the
City of Denton survey control system).
4. Coordinate sub-consultant geotechnical engineering investigation for inclusion in the design.
Geotechnical scope of services is included in the Special Services section of this contract.
5. Coordinate sub-consultant environmental services for USACE 404 Individual Permit application.
Environmental scope of services is included in the Special Services section of this contract.
Prepare 50% design documents consisting of final design criteria, 50% design drawings and
outline specifications for drainage, paving, water and sewer improvements. Construction plan
and profile sheets shall be prepared at a scale of I" = 40' horizontal and I" = 4' vertical.
Based on the information contained in the 50% design documents, submit a revised opinion of
probable project costs.
8. Furnish four (4) copies of the above 50% design documents and review them with OWNER.
9. Attend up to one additional project meeting between project kick-off meeting and presentation of
50% design (three meetings total in the 50% design phase).
R:\Contract\2009\Contract\2009\Denton\PEC-4 Dcsign.dm Exhibit A-2
B. FINAL DESIGN PHASE: FNI shall provide professional services in this phase as follows:
1. Prepare drawings, specifications, Construction Contract Documents, designs, and layouts of
improvements to be constructed.
2. Furnish OWNER the engineering data necessary for applications for routine permits required by
local, state and federal authorities. This Item specifically includes application for TxDOT
roadway crossing permits at Locust and Elm Streets. Preparation of applications and supporting
documents for government grants or for planning advances is an Additional Service.
3. Furnish such information necessary to utility companies whose facilities may be affected or
services may be required for the Project. Submittal to franchise utility companies will be based
on OWNER approval of 50% Design Plans as described in Task A above.
4. Attend up to three (3) Project Meetings during the Final Design Phase, prior to the Bid Phase.
5. Prepare revised opinion of probable construction cost.
6. Prepare bidder's proposal forms (project quantities) of the improvements to be constructed.
BID PHASE. Upon completion of the design services and approval of "Final" drawings and specifications
by OWNER, FNI will proceed with the performance of services in this phase as follows:
Provide the OWNER with two (2) full size (22" x 34") and four (4) half size sets (I I"x17") of
construction drawings and contract documents and distribute them to prospective bidders through
FNI's offices. FNI will post the notice of construction on FNI's website. FNI will send plans and
specifications to two plan rooms, sending plans and specifications to additional plan rooms will
be an additional service. It is the responsibility of the OWNER to notify the newspaper of the
project advertisement and prospective bid opening date, if so desired by the OWNER.
2. Assist OWNER in securing bids. Issue a Notice to Bidders to prospective contractors and
vendors listed in City of Denton's and FNI's database of prospective bidders, and to selected plan
rooms. Provide a copy of the Notice to Bidders for OWNER to use in notifying construction
news publications and publishing appropriate legal notice. The cost for publications shall be paid
by OWNER.
3. Assist OWNER by responding to questions and interpreting bid documents. Prepare addenda to
the bid documents for FNI to distribute to all prospective bidders that have picked up plans and
specifications for bidding.
4. FNI will assist Owner in the tabulating and analyzing of the bids received. FNI will review the
qualification information provided by the apparent low bidder to determine if, based on the
information available, they appear to be qualified to construct the project. FNI will recommend
award of contract or other action as appropriate to be taken by Owner.
5. Furnish contractor and OWNER copies of the drawings and specifications for construction
pursuant to the General Conditions of the Construction Contract.
CONSTRUCTION PHASE: Upon completion of the bid phase services, FNI will proceed with the
performance of construction phase services as described below. FNI will endeavor to protect OWNER
in providing these services; however, it is understood that FNI does not guarantee the Contractor's
performance, nor is FNI responsible for supervision of the Contractor's operation and employees. FNI
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shall not be responsible for the means, methods, techniques, sequences or procedures of construction
selected by the Contractor, or any safety precautions and programs relating in any way to the condition
of the premises, the work of the Contractor or any Subcontractor. FNI shall not be responsible for the
acts or omissions of any person (except its own employees or agents) at the Project site or otherwise
performing any of the work of the Project.
These services are based on the use of City of Denton front documents for construction projects. The
OWNER agrees that FNI will include provisions in the construction contract documents that will
require the construction contractor to include FNI and their subconsultants on this project to be listed
as an additional insured on contractor's insurance policies.
Attend a pre-construction conference. The OWNER will conduct the meeting and prepare
minutes. FNI will provide the Contractor and OWNER three full size (22" x34") sets of plans and
conformed specifications each, totaling 6 plans and specifications. The conformed sets of books
will include a half size set of plans (I 1"x 17").
a. Establish communication procedures with the OWNER and contractor. All communications
between FNI and the Contractor will be through the OWNER.
2. Review contractor's submittals, including, requests for information and shop drawings in
accordance with the requirements of the construction contract documents for the projects.
a. FNI will be responsible for verifying that all required submittals have been received from the
Contractor. FNI will notify the OWNER in writing of the outstanding required submittals.
It is the responsibility of the OWNER to notify the Contractor of the outstanding submittals.
b. FNI will not be responsible for the log in or distribution of contractor submittals, which are
the responsibility of the OWNER.
C. FNI will not review pay estimates, which are the responsibility of the OWNER.
3. FNI will serve in the capacity of General Representation during construction. In this capacity, FNI
will:
a. Make four (4) visits to the site (as distinguished from the continuous services of a Resident
Project Representative) to observe the progress and the quality of work and to attempt to
determine in general if the work is proceeding in accordance with the Construction Contract
Documents. In this effort, FNI will endeavor to protect the OWNER against defects and
deficiencies in the work of Contractors and will report any observed deficiencies to
OWNER. Visits to the site in excess of the specified number are an additional service.
b. Provide general recommendations to the OWNER for the work of testing laboratories and
inspection bureaus required for the testing or inspection of materials, witnessed tests, factory
testing, etc. for quality control of the Project. The cost of such quality control shall be paid
by OWNER and is not included in the services to be performed by FNI.
C. Interpret the drawings and specifications for OWNER and Contractor(s). Investigations,
analyses, study or design for substitutions of equipment or materials, corrections of defective
or deficient work of the contractor or other deviations from the construction contract
documents requested by the contractor and approved by the Owner are an additional service.
Substitutions of materials or equipment or design modifications requested by the OWNER
are an additional service.
d. Prepare Record Drawings of the completed project after the final walk through. The
OWNER will coordinate with the CONTRACTOR to produce a set of plans with markings
that represent how the pipeline was installed that both parties agree on. The OWNER will
provide the plans to FNI to produce record drawings. FNI will deliver to the OWNER two
sets of full size (22"04") drawings, one on bonded paper and one on mylar film, and
electronic file of drawings in ACAD 2000 format.
R:AConvaa\2009AContractA2009ADentonAPEC-4 Design.doc Exhibit A-4
4. Conduct, in company with OWNER's representative, one final review of the Project for
conformance with the design concept of the Project and general compliance with the Construction
Contract Documents. Visiting the site to review completed work in excess of one trip is an
additional service.
ARTICLE II
SPECIAL SERVICES:
A. USACE Section 404 Individual Permit will be performed by a Subconsultant, Integrated
Environmental Solutions (IES):
Through preliminary coordination with the USACE it has been determined that the proposed
project can only be authorized under an Individual Permit (IP). Prior to preparing the IP,
Subconsultant will attend a pre-application meeting with FNI, OWNER and the USACE to
describe the proposed project and identify any potential issues based on the concept plan.
Next Subconsultant will prepare a preliminary project description to be submitted to the
USACE to establish an interagency meeting. This meeting would then be held on-site, with
OWNER and FNI in attendance, to describe the project and provide a brief tour of the
project for all agencies to provide preliminary comments. After the meeting, Subconsultant
will work with FNI to identify solutions on how to incorporate the preliminary agency
comments. Finally, Subconsultant will prepare and submit an IP through OWNER to the
USACE. This process requires that a mitigation plan be prepared that addresses
compensatory mitigation. Subconsultant will prepare a stand-alone conceptual mitigation
plan for this submittal. The Section 404 mitigation plan will include: Description of the
proposed action; Description of the site, including a delineation of the waters of the United
States; Alternatives analysis to the proposed action that do not impact waters of the United
States; Description of the project's avoidance and minimization efforts; Quantitative and
qualitative description of the unavoidable impacts to the waters of the United States;
Develop/conduct a functional assessment on both the current and proposed channels to
determine if there is a need for compensatory mitigation; and Description of the proposed
conceptual mitigation (i.e., proposed earthwork, species and densities of plant materials,
success criteria/performance standards, and monitoring program).
An IP also requires additional background information for the completion of the public
notification and approval process. These services include the following: Completing the IP
Application (ENG Form 4345); Identifying and submitting to USACE two tiers of adjacent
landowners names and addresses for the Public Notice; Coordinate with USACE to complete
the Public Notice; Completing information for the TCEQ 401 Water Quality Certification
(different requirements based on impacts); Coordinate with the five regulatory agencies to
obtain comments and try to resolve any conflicts with the proposed project, which may
require revising the mitigation plan; Address all public notice comments received and
provide USACE a comment sheet how the comments were incorporated into the
design/mitigation plan or why they were dismissed; and Provide assistance to the USACE to
draft the Decision Document and Permit.
B. EASEMENTS: FNI will retain and monitor the efforts of a surveying firm (Brittain and Crawford)
to provide the following services:
• Provide deed research for the preparation of easement documents. (This task does not include
title research)
• Prepare metes and bounds easement descriptions for each private tract. A separate description
R:\Contract\2009\Contract\2009\Denton\PEC-4 Design.doc Exhibit A-5
will be prepared for both permanent and temporary easements. For budgeting purposes, a
maximum of fifteen (15) Easement Documents are anticipated. Payment for parcel descriptions
shall be on a per parcel basis. If more than 15 Easement Documents are required, then additional
payment will be required, for not only the cost for easement preparation on a per each basis but
also for the cost of additional field work. Work for additional Easement Documents above 15
will not commence without written approval of OWNER.
Each Temporary and Permanent Easement will be provided at a cost of $550 per each easement
document prepared, Not To Exceed $8,250 for 15 easements.
C. GEOTECHNICAL ENGINEERING: FNI will provide subconsultant geotechnical engineering and
a sub-consultant drilling and laboratory-testing firm (through CMJ Engineering) to provide the
following services:
• Review geologic maps and the pipeline route to identify testing locations
• Drill up to four (4) borings up to 20 feet deep. For budgeting purposes, a maximum of four (4)
borings are assumed. Scope and Fee may be adjusted to account for additional borings, as
necessary. Log the borings, and obtain soil samples for soil classification and the corrosion
analysis testing. Provide rock cores and RQD of rock, where applicable.
• Provide laboratory testing, including Atterberg limits, unconfined strength of rock samples, sieve
analysis, and water content.
• Provide conclusions of testing and geotechnical analysis in a report, for use of the pipeline
designers and prospective bidders.
ARTICLE III
ADDITIONAL SERVICES: Additional Services to be performed by FNI, if specifically authorized in
writing by OWNER, which are not included in the above-described basic services, are described as follows:
A. Field layouts or the furnishing of construction line and grade surveys.
B. GIS mapping services or assistance with these services.
C. Making property, boundary and right-of-way surveys, preparation of easement and deed
descriptions, including title search and examination of deed records.
D. Providing services to investigate existing conditions or facilities, or to make measured drawings
thereof, or to verify the accuracy of drawings or other information furnished by OWNER.
E. Providing renderings, model, and mock-ups requested by the OWNER.
F. Providing consultation concerning the replacement of any Work damaged by fire or other cause
during the construction, and providing services as may be required in connection with the
replacement of such Work.
G. Investigations involving consideration of operation, maintenance and overhead expenses, and the
preparation of rate schedules, earnings and expense statements, feasibility studies, appraisals,
evaluations, assessment schedules, and material audits or inventories required for certification of
force account construction performed by OWNER.
H. Preparing applications and supporting documents for government grants, loans, or planning advances
and providing data for detailed applications.
R:AContractA2009AContractA2009A1)entonAPEC-4 Design.doe Exhibit A-6
I. Providing shop, mill, field or laboratory inspection of materials and equipment. Observe factory
tests of equipment at any site remote to the project or observing tests required as a result of
equipment failing the initial test.
J. Preparing data and reports for assistance to OWNER in preparation for hearings before regulatory
agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition,
and preparations therefore before any regulatory agency, court, arbitration panel or mediator.
K. Furnishing the services of a Resident Project Representative to act as OWNER's on-site
representative during the Construction Phase.
L. Assisting OWNER in preparing for, or appearing at litigation, mediation, arbitration, dispute review
boards, or other legal and/or administrative proceedings in the defense or prosecution of claims
disputes with Contractor(s).
M. Performing investigations, studies and analyses of substitutions of equipment and/or materials or
deviations from the drawings and specifications.
N. Assisting OWNER in the defense or prosecution of litigation in connection with or in addition to
those services contemplated by this AGREEMENT. Such services, if any, shall be furnished by FNI
on a fee basis negotiated by the respective parties outside of and in addition to this AGREEMENT.
0. Providing environmental support services including the design and implementation of ecological
baseline studies, environmental monitoring, impact assessment and analyses, permitting assistance,
and other assistance required to address environmental issues except as specifically noted in the
Articles I and II above..
P. Performing investigations, studies, and analysis of work proposed by construction contractors to
correct defective work.
Q. Design, contract modifications, studies or analysis required to comply with local, State, Federal or
other regulatory agencies that become effective after the date of this agreement.
R. Services required to resolve bid protests or to rebid the projects for any reason.
S. Visits to the site in excess of the number of trips included in Article I for periodic site visits,
coordination meetings, or contract completion activities.
T. Any services required as a result of default of the contractor(s) or the failure, for any reason, of the
contractor(s) to complete the work within the contract time.
U. Providing services after the completion of the construction phase not specifically listed in Article I
V. Providing basic or additional services on an accelerated time schedule. The scope of this service
include cost for overtime wages of employees and consultants, inefficiencies in work sequence and
plotting or reproduction costs directly attributable to an accelerated time schedule directed by the
OWNER.
W. Providing services made necessary because of unforeseen, concealed, or differing site conditions or
due to the presence of hazardous substances in any form.
R:AContractA2009AContractA2009ADentonAPEC-4 Design.doc Exhibit A-7
X. Providing services to review or evaluate construction contractor(s) claim(s), provided said claims are
supported by causes not within the control of FNI.
Y. Providing value engineering studies or reviews of cost savings proposed by construction contractors
after bids have been submitted.
Z. Preparing statements for invoicing or other documentation for billing other than for the standard
invoice for services attached to this professional services agreement.
AA. Provide follow-up professional services during Contractor's warranty period
ARTICLE IV
TIME OF COMPLETION: FNI agrees to complete the services in accordance with the attached schedule,
Exhibit B
ARTICLE V
RESPONSIBILITIES OF OWNER: OWNER shall perform the following in a timely manner so as not to
delay the services of FNI:
A. Designate in writing a person to act as OWNER's representative with respect to the services to be
rendered under this AGREEMENT. Such person shall have contract authority to transmit
instructions, receive information, interpret and define OWNER's policies and decisions with respect
to FNI's services for the Project..
B. Provide all criteria and full information as to OWNER's requirements for the Project, including
design objectives and constraints, space, capacity and performance requirements, flexibility and
expandability, and any budgetary limitations; and furnish copies of all design and construction
standards which OWNER will require to be included in the drawings and specifications.
C. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including
previous reports and any other data relative to design or construction of the Project.
D. Arrange for access to and make all provisions for FNI to enter upon public and private property as
required for FNI to perform services under this AGREEMENT.
E. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents
presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as
OWNER deems appropriate for such examination and render in writing decisions pertaining thereto
within a reasonable time so as not to delay the services of FNI.
F. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project
and such approvals and consents from others as may be necessary for completion of the Project.
G. OWNER shall make or arrange to have made all subsurface investigations, including but not limited
to borings, test pits, soil resistivity surveys, and other subsurface explorations. OWNER shall also
make or arrange to have made the interpretations of data and reports resulting from such
investigations. All costs associated with such investigations shall be paid by OWNER.
R:\Contract\?009\Contraet\2009\Denton\PEC-4 Design.doc Exhibit A-8
H. Provide such accounting, independent cost estimating and insurance counseling services as may be
required for the Project, such legal services as OWNER may require or FNI may reasonably request
with regard to legal issues pertaining to the Project including any that may be raised by
Contractor(s), such auditing service as OWNER may require to ascertain how or for what purpose
any Contractor has used the moneys paid under the construction contract, and such inspection
services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule,
regulation, ordinance, code or order applicable to their furnishing and performing the work.
1. Give prompt written notice to FNI whenever OWNER observes or otherwise becomes aware of any
development that affects the scope or timing of FNI's services.
1. Furnish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of
this AGREEMENT or other services as required.
ARTICLE VI
DESIGNATED REPRESENTATIVES: FNI and OWNER designate the following representatives:
Owner's Designated Representative - Noreen Housewright, P.E., CFM; City of Denton, 901-A Texas Street,
Denton, Texas 76209; phone: 940-349-7121; fax: 940-349-8951; email:
Noreen.Housewright@cityofdenton.com
FNI's Project Manager - Kelly Dillard, P.E., CFM, 4055 International Plaza, Suite 200, Fort Worth, Texas
76109; phone 817-735-7300; fax 817-735-7491; email kdd@freese.com
FNI's Accounting Representative - Patti Allen, 4055 International Plaza, Suite 200, Fort Worth, Texas
76109; phone 817-735-7466; fax 817-735-7491; email pla@freese.com
R:\Contrac(\2009\Contract\2009\1)cnton\PEC-4 Design.doc Exhibit A-9
COMPENSATION
LUMP SUM WITH ADDITIONAL WORK BASED ON COST TIMES MULTIPLIER
A. Basic and Special Services: Compensation to FNI for the Basic Services and expenses shall be Two
Hundred Fifty Eight Thousand Seven Hundred Sixty Five Dollars ($258,765). For Special Services the
fee shall be Forty Two Thousand Seven Hundred Eighty Dollars ($42,780). If FNI sees the Scope of
Services changing so that additional services are needed, including but not limited to those services
described as Additional Services in Exhibit A, FNI will notify OWNER for OWNER's approval before
proceeding. Additional Services shall be computed based on the Schedule of Charges.
B. Schedule of Charges for Additional Work:
Staff Member Salary Cost Times Multiplier of 2.21
Resident Representative Salary Cost Times Multiplier of 2.0
Salary Cost is defined as the cost of salaries (including sick leave, vacation, and holiday pay applicable
thereto) plus unemployment and payroll taxes and contributions for social security, employment
compensation insurance, retirement benefits, medical and other insurance, and other miscellaneous
benefits.
Other Direct Expenses Actual Cost Times Multiplier of 1.10
Other direct expenses shall include outside printing and reproduction expense, communication expense,
travel, transportation and subsistence away from Fort Worth and other miscellaneous expenses directly
related to the work, including costs of laboratory analysis, test, and other work required to be done by
independent persons other than staff members. For CAD services performed In-house by non-FNI
employees where FNI provides workspace and equipment to perform such services, these services will
be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI employee
was performing the same or similar services.
Rates for In-house Services
Computer
$10.00 per hour
Printing
Black and White
$0.10 per copy
Plotter
Bond
Special
$ 2.50 per plot
$ 5.00 per plot
Color
$0.50 per copy
Binding
$5.75 per book
Testing Apparatus
Density Meter $350.00 per month
Gas Detection $ 10.00 per test
3-10-043.2
R:\Contract\2009\Contract\2009\Demon\PEC-4 Design.doc
FNI
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