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2005-296 ORDINANCE NO. 2.;005 -,:j9& AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY-HORN & ASSOCIATES, INC. FOR ADDITIONAL PROFESSIONAL ENGINEERING SERVICES RELATED TO THE FINAL DESIGN OF THE SOUTHWEST BOOSTER PUMP STATION AND STORAGE FACILITIES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems that it is in the public interest to continue to engage Kimley-Horn & Associates, Inc. a Corporation ("K-H"), to provide further professional engineering services related to the final design of the Southwest Booster Pump Station and Storage Facilities; and WHEREAS, the City Council passed and approved an Ordinance on the 21 st day of May, 2002, being Ordinance No. 2002-157, which authorized that a Professional Services Agreement between the parties hereto be entered into. On the 21 sl day of May 2002, the City of Denton, Texas and Kimley-Horn and Associates, Inc. entered into a "Professional Services Agreement For The design, Bidding and Construction Contract Notification Associated With The Proposed Denton Southwest Pump Station and Ground Storage Tank;" and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the additional above-referenced professional engineering services, and that limited City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I: That the City Manager is hereby authorized by the City Council to execute a First Amendment to Professional Services Agreement with Kimley-Horn and Associates, Inc., a Corporation, for further professional engineering services relating to the final design of the Southwest Booster Pump Station and Storage Facilities, for an additional lump-sum fee of $52,000; in substantially the form of the First Amendment to Professional Services Agreement attached hereto and incorporated herewith by reference. I SECTION 2: That the award of this Agreement by the City is on the basis of the continued demonstrated competence, knowledge, and qualifications of K-H and the demonstrated ability of K-H to perform the services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached First Amendment to Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approvaL PASSED AND APPROVED this the ,.9Bff, day ofoJ' ~471b AJ ,2005. C~~CL EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: ~P/ ~f }uUdjfrl/ OMi/. APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: S:\Our Documents\Ordinances\05\Kimley-Hom & Associates-Final Design-SW Booster-PSA lOOS.doc 2 THE STATE OF TEXAS COUNTY OF DENTON g g g FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT to that certain "Professional Services Agreement For The Design, Bidding and Construction Contract Notification Associated With The Proposed Denton Southwest Pump Station and Ground Storage Tank" in the original not- to-exceed amount of $289,000 (hereafter the "Agreement"), executed on May 21, 2002; and approved by Ordinance No. 2002-157 enacted by the Council on said date, was heretofore entered into by and between the City of Denton, Texas, a Texas Municipal COIporation with its offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter referred to as "CITY"); and the firm of Kim ley-Horn and Associates, Inc., with its offices at 801 Cherry Street, Unit 11, Suite 1025, Fort Worth, Texas 76102, a North Carolina Corporation (hereafter referred to as "K-H"); acting herein by and through their respective duly authorized signatories; and WHEREAS, the work and projects contemplated by the Agreement have been partially completed, but certain portions of projects remain pending or have changed by the delay of the last three years; neither due to the fault of the CITY nor K-H; and additional monetary authority of not to exceed $52,000 (a total amount of $341,000, including the $289,000 amount of the Agreement) is requested by the CITY and K-H at this time; both the CITY and K-H have a mutual desire to enter into the terms of this "First Amendment to Professional Services Agreement" (hereafter the "First Amendment") in order to complete all of the services described and provided for in said Agreement and in the First Amendment; and NOW THEREFORE, the City of Denton, Texas and the firm of Kimley-Hom and Associates, Inc. (hereafter collectively referred to as the "Parties"), in consideration of their mutual promises and covenants, as well as for other good and valuable considerations, do hereby AGREE to the following First Amendment, which amends the terms and conditions of the said Agreement, to wit: 1. That the prOVlSlons of the new Article 11.8. shall be inserted immediately following the enumeration of the three (3) sections of the Scope of Work and Fee Proposal labeled Article I1.A. in the Agreement of May 21, 2002, to wit; "B, To perform those professional services as are set forth in the First Amended Scope of Work which is set out in that certain three (3) page letter from Glenn A. Gary, P.E. of Kimley-Hom and Associates, Inc. to Tim Fisher, P.E., Assistant Director of Water Utilities of the City of Denton, Texas, dated July 20, 2005; 1 which letter is hereby incorporated by reference. (4) sections: 1. 2. 3. 4. This letter is composed of four Item 1 - Electrical Generator Item 2 - Hydropneumatic Tank Item 3 - Delay of Project Item 4 - Construction Phase Services" II. That the provisions of old Article II.R shall instead be labeled as Article II.C. Article II.C. shall instead read: "C. If there is any conflict, or if any conflict arises between the terms of this First Amendment and the Exhibits attached to the Agreement and the First Amendment, the terms and conditions of this First Amendment shall control over the terms and conditions of the Exhibits." III. That the provisions of Article V.B.1., shall be deleted and the following language is substituted for the same. The provision shall instead read: "I. CONSULTANT shall perform its work on this Project in accordance with the provisions of those tasks which are described and as set forth in the "Scope of Services" of Exhibits "A" and "B" attached hereto and incorporated herewith by reference. CONSULTANT shall bill from time sheets, on a once-monthly basis, in minimum Y. hour or smaller time increments, at the hourly billing rate, or as otherwise provided in Article V. For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, at an hourly rate as determined by Exhibit "C" entitled "Compensation Effective August 1, 2005" which is incorporated herewith by reference, including reimbursement for direct non-labor expenses and for its subcontractor expense. CONSULTANT and OWNER agree that the fee for this First Amendment is not to exceed $52,000. That amount consists of: (1) a lump sum fee of $15,000 associated with adding the Electrical Generator, as contained in Item 1 of Exhibit "B" hereto; (2) a lump sum fee of $8,500 associated with the addition of two 15,000 gallon pressure tanks ("Hydropneumatic Tank") as contained in Item 2 of Exhibit "B" hereto; (3) a lump-sum fee of $3,500 associated with the project delay of several years ("Delay of Project") as contained in Item 3 of Exhibit "B" hereto; and (4) a not-to-exceed hourly fee in accordance with Exhibit "c" attached hereto regarding additional construction phase services regarding Item 4 of Exhibit "B" hereto, in an amount not-to-exceed $25,000. The original Agreement executed by CONSULTANT and OWNER on the 21't day of May, 2002, provided for professional fees in the lump sum amount of $289,000. This First Amendment authorizes the expenditure of not-to-exceed an 2 additional $52,000 in professional fees. Therefore, this First Amendment authorizes the total expenditure by OWNER of not- to-exceed $341,000." IV. That the following language shall be added to Article XXII.A ofthe Agreement: "Exhibit "B" - First Amendment - Scope of Services - as contained in the letter described hereinabove as Article ILB. "Exhibit :C: - Compensation - attached hereto as Exhibit "c" V. The Parties hereto agree, that except as specifically provided for by this First Amendment, that all of the terms, covenants, conditions, agreements, rights, responsibilities, and obligations of the Parties, set forth in both the Agreement and the First Amendment, shall remain in full force and effect IN WITNESS WHEREOF, the City of Denton, Texas and the firm of Kimley- Horn and Associates, Inc. have each executed this First Amendment to Professional Services Agreement, in (4) original counterparts, by and through their respective duly authorized representatives and officers on this the 20fh day of c.'5b(Jfem./;;0y'", 2005. "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation ity Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: 111M fjehdfdJ~ I1M;t APPROVED AS TO LEGAL FORM: 3 {'Il. EDWIN 11. SNYDER, CITY ATTORNEY By:/W~~~ "K-H" KIMLEY-HORN AND ASSOCIATES, INC. A North Carolina Corporation By: /2 c/~ GLENN A. GARY, Vice President ATTEST: By: S:\Our Documents\Contracts\05\Kimley-Hom First 4 Exhibit C Kimley-Horn and Associates, Inc. Rates Schedule (Hourly Rate) Senior Professional II Senior Professional Professional Designer Technical Support Clerical! Administrative Support $150 - $190 $110 - $155 $60-$110 $95 - $105 $45 - $90 $55 - $70 Effective January 1,2005 C:\Documents and Setting;\glenn.gary\My Documents\FTW05_Master.doc89 ~=~ Kimley-Horn and Associates, Inc. July 20, 2005 Me. Tim Fisher, P.E. Assistant Director of Water Utilities City of Denlon 901-A Texas Street Denton, TX 76205 Re: Denton Southwest Pump Station and Ground Storage Tank KHA No. 061024005 Dear Tim: The following are items not included in the Scope of Services of our current contract for the Southwest Pump Station project. We have provided a description of each item and the fee increase associated with each item. Item 1 - Electrical Generator - The current plan for the service area proposed to be served by the Southwest Pump Station is to delay the construction of elevated storage. The TCEQ requires emergency power for systems with greater than 250 connections and do not meet the elevated storage requirement of 100 gallon per connection. Emergency backup generation is listed in the contract as an additional service but was not included in the total agreement price of $289,000. The additional fee associated with adding this item as stated in the contract is a lump sum of$15,OOO. The projected additional construction cost for electrical generation is $300,000. Item 2 - Hydropneumatic Tank - If elevated storage is not constructed then the TCEQ allows for up to 2,500 connections to be served by a 30,000 gallon pressure tank. Kimley-Hom submitted a variance request to the TCEQ on behalf of the City of Denton to have variable speed pumps to control pressure rather than a pressure tank. This request was denied by the TCEQ and a pressure tank will have to be constructed for pressure maintenance unless elevated storage is constructed. Because of the operating pressure at this station two (2) 15,000 gallon pressure tanks are anticipated to be constructed. As you know, pressure tanks are typically used in rural areas where fire demand is not considered, so the demand from the tank is fairly consistent. In this situation even though a pressure tank is not a reliable method to provide fire protection, the design allows the system to operate at fire demands which can be 5 to 10 times higher than the normal anticipated demand. The conlrol of a pressure tank in this hydraulic condition can become complex to meet the wide range of anticipated demand . TEL 8173356511 FAX 8173355070 . Suite 1025 801 CherryStreel, Unil11 Fort Worth, Texas 76102-6803 ~=~ Kimley-Horn and Associates, Inc. Mr. Tim Fisher, P.E., July 20, 2005, Page 2 conditions. A good portion of the design deals with pump controls that allow the pressure tank to operate through a wide range of demand conditions. The projectedJeeJor the addition oJtwo 15,000 gallon pressure tank, is a lump sum $8,500. The projected additional construction cost Jar the two pressure tanks is approximately $135,000. Item -3 Delay of Project - The project has been delayed for nearly two years now. We have to change a few contracts with some of our sub consultants to account for the delay of the project. Some of it is related to starting up the project again, some of it is things like having the surveyor verify property information and comers. The additional fee to cover subs is approximately $3,500. I would like to request that we shift the cost of the reserved funds for geotech to cover Kimley-Hom's cost to stop and start the contract. The geotech information we received early in the project was sufficient to cover the majority of our needs. We have only spent $600 of the budgeted $6,600 to have the geotech sub consultant revise his report The total additional cost we are requesting Jar project delay is a lump sum oj $3,500. Item 4 - Construction Phase Services - Our current Scope of Services includes only shop drawing review and monthly site visits. You have indicated that there may be a need for more detailed correspondence between your inspector and Kimley-Hom during construction. It is very difficult to project the actual additional fee for this; it is dependant upon contractors, vendors, developer's contractors, and your staff. We propose that the construction phase service of the contract be increased approximately $25,000 to cover these additional services. This would allow an additional 2 to 5 hours per week of services as needed from your staff. This time is not designated to cover errors and omissions by Kimley- Hom, but to allow the staff the flexibility for additional services as needed through the construction period. Additional construction phase services are proposed to be hourly up to a budgeted amount oj $25,000 ~=~ Kimley-Horn and Associates, Inc. Mr. Tim Fisher, P.E., July 20, 2005, Page 3 Summary Additional Services - Lump Sum Electrical Generator Hydro Pneumatic Tank Delay Sub consultant Cost Subtotal $ 15,000 $ 8,500 $ 3.500 $ 27,000 Additional Services - Reimbursable Construction Phase Services $ 25,000 Total additional services $ 52,000 Current Conlract Amount Proposed Contract Amount $289,000 $341,000 Please review this information and let me know your thoughts, then we can work through how you would like to proceed. Sincerely, KIMLEY-HORN AND ASSOCIATES, INC. /2---- c/ ~ Glenn A. Gary, P.E. GAG:jlp P:\06] 024.005\L TRlamendment2.doc