2005-288
ORDINANCE NO. 2005- zgg
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH THE FIRM OF
ARTHUR SURVEYING CO., INC. TO PROVIDE PROFESSIONAL SURVEYING
SERVICES IN SUPPORT OF THE CITY OF DENTON ENGINEERING
DEPARTMENT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE
AND PROVIDING AN EFFECTIVE DATE (PSA 3219-IN AN AMOUNT NOT TO
EXCEED $200,000).
WHEREAS,. The professional services provider (the "Provider) mentioned il). this
ordinance is being selected as the most highly qualified on the basis of its demonstrated
competence and qualifications to perform the proposed professional service:>.; 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 Arthur Surveying Co., Inc. to provide professional surveying services
for the City of Denton Engineering Department, a copy of which is on file in the office of
the Purchasing Agent and incorporated by reference herein.
SECTION 2. The City Manager is authorized to expend funds as required by the
attached contract
SECTION 3. The findings in the preamble of this ordinance are incorporated
herein by reference.
SECTION 4. This ordinance shall become effective immediately upon its passage
and approvaL
PASSED AND APPROVED this the 010 ct day o~V ,2005.
C~~cL
EULlNE BROCK, MAYOR
,.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:~itdutUddmf t2u!/r
APPROVED AS TO LEGAL FORM:
EDWIN M. S~CITY ATTORNEY
BY:~~
4-ORD-PSA 3219 Renewal
PROFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
AGREEMENT is made and entered into as of the -.21) day of
, 2005, by and between the City of Denton, Texas, a Texas municipal
corpor ion, with its principal office at 215 East McKinney Street, Denton, Denton
County, Texas 7620 I, hereinafter called "Owner" and Arthur Surveying Co., Inc., with
its corporate office at 220 Elm Street, Suite 200, P.O. Box 54, Lewisville, Texas 75067,
hereinafter called "Design Professional," acting herein, by and through their duly
authorized representatives.
In consideration of the covenants and agreements herein contained, the parties hereto do
mutually agree as follows:
SECTION 1
EMPLOYMENT OF DESIGN PROFESSIONAL
The Owner hereby contracts with the Design Professional, a licensed Texas
architect or engineer or surveyor, as an independent contractor. The Design Professional
hereby agrees to perform the services as described herein and in the Proposal, the General
Conditions, and other attachments to this Agreement that are referenced in Section 3, in
connection with the Project The Project shall include, without limitation,
Indefinite Delivery Surveying Services-with Attachments A, B, and C.
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SECTION 2
COMPENSATION
The Owner shall compensate the Design Professional as follows:
2.1 BASIC SERVICES
2.1.1 For Basic Services the total compensation shall not exceed $200,000 without
additional authorization from the Owner.
2.1.2 Progress payments for Basic Services shall be paid at hourly reimbursable rates
in accordance with Attachment 'B' and 'c' for services performed by the Design
Professional, plus any direct cost reimbursables.
2.2 REIMBURSABLE EXPENSES Reimbursable Expenses shall generally be a multiple
of Ll 0 times the expenses incurred by the Design Professional, the Design Professional's
employees and consultants in the interest of the Project as defined in the General
Conditions. Reimbursable expenses as agreed to between the Owner and Design
Professional are described in more detail in Attachment 'C'.
SECTION 3
ENTIRE AGREEMENT
This Agreement includes this executed agreement and the following documents all of which
are attached hereto and made apart hereof by reference as if fully set forth herein:
L Applicable portions of the City of Denton General Conditions to Agreement for
Architectural or Engineering Services.
2. Attachments A through C.
This Agreement is signed by the parties hereto effective as of the date first above written.
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: Q-Mll!i!!h/lttliIX/ Opt.
APPROVED AS TO LEGAL FORM:
::RB[~ORNEY
WITNESS:
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BY:
B :
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ATTACHMENT "A'
SCOPE OF BASIC SERVICES
The scope of Basic Services for this project generally consists of professional surveying services
in support of the City of Denton (Owner) as administered by the City of Denton Engineering
Department. Services will be on an indefinite delivery basis for specific tasks or projects as
requested by City staff. The total amount of work is undetermined and may be limited by the total
maximum compensation indicated in Section 2, Compensation, of the Professional Services
Agreement. Specific tasks may include the following:
. Construction staking
. Field design surveys
. Topographic surveys
. Boundary surveys and analysis
. Preparation of easement or right-of-way exhibits
. GPS monument placement
. Other professional surveying services as requested
All survey services will be performed under the direct supervision of a Registered Professional
land Surveyor (RPlS) licensed to practice in the State of Texas. The Design Professionai will
seal all boundary surveys and other documents requiring the seal of an RPlS. All surveying
services will meet or exceed the minimum standards of practice established by the Texas Board
of Professional land Surveyors. In addition to field crew(s}, the Design Professional will provide
the services of an RPlS and/or survey technician to support the field crew, both to prepare
materials prior to field work and to compile, analyze or map the information gathered by the field
crew or to otherwise prepare the work of the field crew for delivery to the Owner.
PROCEDURE
A representative of the Owner will provide the Design Professional with a written Survey Request
Form. This request will provide a minimum of forty-eight (48) hours notice of the need for specific
services and will outline briefly the nature of the work to be provided along with the necessary
timeline. If the Design Professional is unable to meet the required schedule, he will notify the
Owner. within twenty-four (24) hours so that other provisions or a revised schedule can be
arranged.
Once the Design Professional has reviewed the preliminary information provided with the Survey
Request Form and has agreed to accept the specific assignment as detailed, the Owner will
provide detailed information, including written instructions, construction plans or drawings, deeds,
sketches, 'electronic drawing files, or any other information necessary to complete the
assignment.
,
Upon review of the detailed information, the Design Professional will provide an estimate of the
effort and/or cost of services to the Owner's designated representative.
Upon completion of the work, the Design Professional will provide electronic files, plots, maps,
exhibits, field ncites, point files, and/or other materials as requested by the Owner. Deliverables
will be produced and transmitted to the Owner using standards established and set forth by the
City of o.enlon Engineering Department.
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H:\Survey Serv!ces\Contract 2006\Attachment Adoc
Exhibit A - Page I
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ATTACHMENT '8'
SCHEDULE OF FEES
A, BASIC SERVICES:
For work performed by the Design Professional within the scope identified in Attachment A,
Scope of Basic Services, the Design Professional will be reimbursed as described below:
1.
labor
Design Professional shall be reimbursed on the basis of negotiated fees for each
item of service provided, as mutually agreed to by the Design Professional and the
Owner, or on the basis of labor of personnel employed by the Design Professional on '.
an hourly basis in accordance with ATTACHMENT 'C', Standard Rate Schedule for
Reimbursable/Multiplier Contracts. When services are based on hourly reimbursable
rates, the time charged will not include travel time to the project site from the
lewisville office of the Design Professional and will cease upon completion of the
task in Denton. No travel time will be charged by the Design Professional.
2.
Direct Expenses
Direct expenses, such as printing, reproductions, delivery/courier services, etc. will
be reimbursed to the Design Professional at his direct invoice expense times a
multiplier as set forth in Attachment 'C'. Where appropriate, a noHo-exceed amount
will be estabiished and agreed to for each item of service provided.
R\Survey Services\Contnlct 2006\Attachmcnt B.doc
Exhibit B - Page 1
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ATTACHMENT 'c'
STANDARD RATE SCHEDULE FOR
REIMBURSABLE/MUL TIPLlER CONTRACTS
(to be attached by the Design Professional)
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H:\Survey Services\Contrnct 2006\Attachment C.doc
Arthur Surveying Co./ Inc.
Professional Land Surveyors
220 Elm Street Suite #200
P.o. Box 54
Lewisvilfe, Texas 75067
(972) 221-9439 Fax (972) 221-4675
SCHEDULE OF HOURLY RATES
220 Elm Street, Suitc #200
Lcwisvillc, Texas 75067
Effective January 2003
Registered Professional Land Surveyor
Project Representativc
Senior Technician
Junior Technician
Survey Coordinator
Office Manager
Office Clerical
Conventional rield Crcw/ Junior Party Chief
Conventional Ficld Crcw/ Senior Party Chief
GPS rield Crcw
$100.00 per hour
$50.00 per hour
$75.00 per hour
$45.00 per hour
$50.00 per hour
$50.00 pcr hour
$30.00 per hour
$80.00 per hour
$100.00 pcr hour
$125.00 per hour
STAKES: Stakes will be chargcd at cost + 10% ifan exccssive numbcr are requircd.
(Typically included in crcw rate.)
IRONS: Irons will be chargcd at cost + 10% if an exccssive number are requircd.
(Typically included in crew ratc.)
SPECIAL MONUMENTS: Special Monuments will be chargcd at cost + 10%.
SPECIAL EQUIPMENT: Any special equipment requircd on ajob will be chargcd at
rental cost + 10%.
OVERTIME RATES: Jobs requiring work on weekcnds or holidays will be billcd at 1.5 times
thc standard rate.
Each project is evaluated to dctcrmine the bcst/most cost cffective pcrsonnel for that particular
project. The numbcr of pcrsons on a ficld crew is dctermined in the same manner. There is
no cost difference in a 2 or 3 man crew.
SCHEDULE OF REIMBURSABLE EXPENSES
Reproduction-Out of~House
V cllum Prints
Mylar Prints
Bond Prints
Actual Expensc x 1.5
$10.00/ sheet
$ 20.00 / sheet
$1.50 / sheet
Boundary surveys, cxhibits, etc. requiring a lump sum price, plcase call for a
quote @ 972-221-9439.
CITY OF DENTON
GENERAL CONDITIONS
TO
AGREEMENT FOR ARCHITECI'URAL OR ENGINEERING SEllVICES
ARTICLE I. ARCHITECT OR ENGINEER'S RESPONSIBILITIES
l.l The Archilect or Engineer's services consist of those services for the Project (as defined in lhe agreement (the "Agreement") and proposal (the "Proposal'') to which these
General Conditions are attached) performed by the Architoct or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as
enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services").
1.2 the Design Professional will perform all Services as an independent contmctor 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 Care''). The Services shall be perfonned 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 Owner's approval a schedule for the pcrfonnance of the Services which may be adjusted as the Project
proceeds, and shall include a.llowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project
Time limits established by this schedule and approved by the CMner 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 nonnal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accumte 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 Owner's 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
tenns 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 Projecl
2.2.4 Based on the mutua.lly agreed~upon progrwn, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner,
Schematic Design Docwnents consisting of drawings and other documents illustrating 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, volwne 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 DESIGN DEVELOPMENT PHASE
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 size and
character of the Project as to architectural, structura1, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply
with all applicable laws, statutes. ordinances. codes and reguJations. Notwithstanding Owner's approval of the docwnents, 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 Docwnents 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 of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations.
2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement fOnTIs, 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 any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements .
or general market conditions
2.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental
authorities having jurisdiction over the Project.
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2.5 CONSTUCTION CONTRACT PROCUREMENT
2.5.1 The Design Professional, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, ':hl..
shall assist the Owner in procuring a construction contract for the Project through any procurement method. that is legally applicable to the Project including without . ,.:~
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limitation. the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award oflbe construction contract is in
the sole discretion oflbe 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 - ADMINISI'RATlON OF TIlE 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 8.32.
2.6.2 The Design Professional shall provide detailed administration of the ContrdCt for Construction as set forth below. For design professionalss the administration
shall also be in accordance with AlA document A20 I, 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 Govenunents, current as of the date of the 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.
2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (I) during construction, and (2) at the Owner's direction from
time to time during the correction, or warranty period described in the Contnu..i for Construction. The Design Professional shall have authority to act on behalf of the
Owner only to the extent provided in the Agreement and these Geneml 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 oflhe work completed and to detennine 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 infonned 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 deficien::ies in the work of Contractor or any
subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall
promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or
payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the
Owner's rights hereunder.
2.6.6 The Design Professional shall not have 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 Docwnents 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 perfonning portions of the work. i.e-
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 Contractor's Applications for Payment, the Design Professional
shall review and certity the amounts due the Contractor.
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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 Contractor's 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 constiMe- a
representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shaJl not be a representation that
the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor
has used money previousl'y 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 Desigt;.~. .
Professional considers it necessary or advisable for implementation of the intent of the Contract Docwnents, 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 othe~ Persons,
performing portions of the work. ' .
2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and'
Samples for the purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when"
completed, will be in cOmpliance with the requirements of the Contract Docwnents. The Design Professional shall act with such reasonable promptness to cause .rio~' ,
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 ',>
pennit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions:< ",
and quantities or for substantiating instructions for installation or perfonnance of equipment or systems designed by the Contractor. all of which remain the-;.. .;'.
responsibility of the Contractor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions , :.
or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences or procedures. The Design ProfeSsional'S" .- .
approvaJ of a 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, wilh. supporting documentation and data if deemed necessary by
the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Owners approval and execution in accordance with the Contral.'t 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 the Contract Documents on written request of either the Owner or Contractor. TIle Design Professional's response to such requests shall be made with reasonable
promptness and within any time limits agreed u{Xln.
2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably infemble from the Contract Documents and shall..
be in writing or in the form of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance ;-"
by both Owner and Contrat.'tor, 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 mitten dccisions 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 ContrJ.t.i Documents.
2.6.18 The Design Professional (I) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages
caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any
rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder.
2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing an significant changes to the Construction Documents during
the Construction Phase.
ARTICLE 3 ADDITIONAL SERVICES
3.t GENERAL
3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or ProposaJ, and they shall be paid for by the
Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described Wlder Sections 3.2 and 3.4 shall only be provided if
authorized or confinned in writing by the Owner. If services described lUlder 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 St:fVices 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 10 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. I
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions arc:
1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's
program or Project budget;
2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or
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3. due to changes required as a result of the Owner's failure to render decision in a timely manner.
3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except" '!.
for services required Wlder 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 fife 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 fuilure of perfonmince
of either the Owner or Contnu..ior 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 OPTIONALADDITlONALSERVICES
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 dmwings thereof
3.4.6 Providing services to verity the accunlCy of drawings or other information furnished by the Owner.
3.4.7 Providing coordination of construction perfonned by separate contractors or by the Owners own forces and coordination of services required in cO/mection with
construction perfonned and equipment supplied by the Owner.
3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor.
3.4.9 Providing analyses of operating and maintenance costs.
3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities.
3.4.12 Providing assistance in the utilization 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 Warranty
period of the Contract for Construction.
3.4.15 Providing serVices of consultants for other than architectural, civil, structural, mechanical and el~trical engineering JXlrtions 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 arc
caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be perfonned 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.
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ARTICLE 4 OWNER'S RESPONSIBILITIES
4.1 The Owner shall consult with the Design Professional regarding requirements for the Project:, including (I) the Owner's objectives, (2) schedule and design..
constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more speci~,
fically described in Subsection 2.2.1.
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4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies'.
related to all of these costs.
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4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this .
Agreement.
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4.4 The Owner shaH 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 lUlfeasonable delay in the orderly and sequential
progress of the Design Professional's services.
4.5 Where applicable, the Owner shall furnish swveys describing physical characteristics., 1ega11imitations and utility locations for the site of the Project, and a written
legal description of the site. 111e swveys 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, wning, deed restrictions, bOlUldaries 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 infomlation on the SUfVl..'Y shall be referenced to a project benchmark.
4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services arc requested by the Design Professional. Such services may
include but arc 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 re{Xlrts and appropriate professional recommendations.
4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and arc 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 structural, mechanical, chemical, air and water {Xlllution tests, tests of hazardous materials,
and other labomtory and environmental tests, inspections and reports required by law or the Contract Documents.
4.8 The Owner shall furnish all legal, accounting and insumnce counseling services as may be necessary at any time for the Project, including auditing services the
Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on
behalf of the Owner.
4.9 The services, infonnation, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished at the Owner's expense, and the Design
Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional.
4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconformance with
the Contract Docwnents.
4.11 Design Professional shall pro{Xlse 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.
ARTICLE S CONSTRUCTION COST
S.I CONSTRUCTION COST DEFINED
5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional.
5.1.2 The Construction Cost shall include the cost at current market mtes 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 Contractor's 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 res{Xlnsibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCfl0N COST
5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design
Professional rt..'Present 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 Contractor's methods of determining bid prices, or over
competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrnnt or represent that bids or cost proposals will not vary
from the Owner's Project budget or from any estimate ofCorn.1ruction Cost or evaluation prepared or agreed to by the Design Professional.
5.2.2 No fixed limit of Construction Cost shall be established ~ a condition of the Agreement by the fwnishing. proposal or establishment of a Project budget, unless' . ~
such fixed limit has been agreed U{Xln in writing and signed by the parties thereto. If such a frxed limit has been established, the Design Professional shall be permitted .
to include contingencies for design, bidding and price escalation, to detennine 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 ContrclCt Documents alternate bids to adjust the .
Construction Cost to the fIXed limit. Fixed limits, if any, shall be increased in the amount ofan increase in the Contract Sum occurring after execution of the Contract'
for Construction.
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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 genem1level of prices in the construction industry between the date of submission
of the Construction Documents to the Owner and the date on which proposals are sought.
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ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS
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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 docwnents. 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 f
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 1<.
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.
ARTICLE 7 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 tenninate the Agreement or any phase theroofwith 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 Proft:Ssional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such notice. No
amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the
Agreement and shall be promptly delivered to the Owner in a reasonably organized fom} Should Owner subsequently contract with a new 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 Profl."SSional's compensation shall be equitably adjusted to provide for expenses incurred in the intenuption
and resumption of the Design Professional's services.
7.3 The Agreement may be 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. Ifthe 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 tennination.
7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design
Professional may, upon seven days written notice to the Owner, suspend perfonnance of services under the Agreement
7.6 In the event oftennination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily perfonned prior to
tennination.
ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL
8.1 DIRECT PERSONNEL EXPENSE
8.1.1 Direct Persormel Expense is defined as the direct salaries of the Design Professional's persormel 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 employCl."S and consultants in the interest of the Project, as identified in the following Clauses.
8.2.1.1 Expense oftrnnsportation 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 having jurisdiction over the Project.
8.2.1.2 Expense of reproductions (except the reprodudion of the sets of docwnents referenced in Subsection 2.6.19), postage and handling of Drawings,
Specifications and other documents.
8.21.3 rfauthorized 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.
8.21.5 Expense of computer-aided design and drafting equipment time when used in connection with the Project.
8.21.6 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 time initially established in the Agreement is exceeded or extended through no fault of the Design Professional, compensation for any
services rendered during the additional period oftime shall be computed in the maMer set forth in Section 2 of the Agreement.
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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 (I) 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 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
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8.4.1 Payments on account of the ,Design Professional's Additional Services and for Reimbl.lNable Expenses shall be made monthly within 30 days after the
presentation to the Owner of me Design Professional's statement of services rendered or expenses incurred. .~-;.
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8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums \vithheld
from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible.
8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of
Reimbursable Expe~ and expe~ pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and
copying during regular business hours for three years after the date of the fmal Certificate of Payment, or until any litigation related to the Project is final, whichever date is
later.
ARTICLE 9 INDEMNITY
9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability,
claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the Ov.rncr, 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 inSWdIlce 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 Best
Rate Carrien; of at least an A- or above:
10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate,
and with property damage limits of not less than $100,000 for each 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 of not 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.
10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate.
10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with 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 shaH, 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 calise of action under the Agreement shall lie exclusively in Denton COWlty,
Texas.
J 1.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to
the partnen;, 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 v..ritten consent of the Owner.
11.3 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 of the .
Agreement which together represent the entire and integrated agreement between the Owner and Design Protessional and supersedes all prior negotiations, representations or
agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. When interpreting the
Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is
reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized,
such documents shall be given priority in the following order:
1. The executed Agreement
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2. Attachments referenced in Section 3 of the Agreement other than the Proposal
3. These General Provisions
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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 ~ign
Professional.
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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 Owner's":
confidential or proprietary. information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be 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. ~,,,':'~J'
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11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents,
subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such
responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants.
11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing
same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless 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 Ifany 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 oflhis 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.
11.1 I 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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