2004-176AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE
A PROFESSIONAL SERVICES AGREEMENT WITH DUNKIN, SIMS, STOFFELS, INC. TO
PROVIDE DESIGN COMPLETION, DEVELOPMENT SERVICES, AND CONTRACT
ADMINISTRATION FOR LAKE FOREST PARK; AUTHORIZING THE EXPENDITURE OF
FUNDS THEREFORE AND PROVIDING AN EFFECTIVE DATE (REP 3176 IN AN AMOUNT
NOT TO EXCEED OF $62,100).
WHEREAS, the professional services provider (the "Provider) mentioned in tiffs ordinance is
being selected as the most highly qualified on the basis of its demonstrated competence and
qualifications to perform the proposed professional services; and
WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent
with and not higher than the recommended practices and fees published by the professional
associations applicable to the Provider's profession and such fees do not exceed the maximum
provided by law; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager is hereby authorized to enter into a professional service
contract with Dunkin, Sims, Stoffels, Inc. to provide professional design completion, development
services and construction administration for Lake Forest Park, a copy of which is attached hereto
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 ~ day of ~ ,2004.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
File 3176 Lake Forest park
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PROFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
(/~[f/gTHIS AGREEMENT is made and entered into as of the //~ day of
~ ,2004, by and between the City of Denton, Texas, a Texas municipal
corl~o~aq0n, with its principal office at 215 East McKinney Street, Denton, Denton
County, Texas 76201, hereinafter called "Owner" and Dunkin,Sims,Stoffels,Inc., with its
corporate office at 9603 White Rock Trail, Suite 210, Dallas, TX 75238 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, 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, (describe the
Project in the space below or in an attachment)
Provide Design Development, Construction Documents, Bidding and Construction
Review for Phase I of Lake Forest Park as delineated within the attached proposal labeled
Exhibit A
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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 compensation shall be:
On-Site Topographical Survey:
Total Compensation:
$ 32,100.00
$25,000.00
$57,100.00
2.1.2 Progress payments for Basic Services shall be paid in the following percentages
for of the total compensation for the Basic Services satisfactorily completed at the end
of the following phases of the Project:
Existing Conditions/Base Map
Design Development
Construction Documents
Bidding
Construction Review
10%
2.~5%
4_~5%
15%
2.2 ADDITIONAL SERVICES
2.2.1 Compensation for Additional Services is as follows:
Principals
Associates
CADD Technician
Technical Staff
Clerical Staff
$105.00 per hour
90.00 per hour
75.00 per hour
50.00 per hour
25.00 per hour
2.2.2 Compensation for Additional Services of consultants, including additional
structural, mechanical and electrical eng/neering services shall be based on a multiple of 1.1
times the amounts billed to the Design Professional for such additional services.
2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of
one times the expenses incurred by the Design Professional, the Design Professional's em-
ployees and consultants in the interest of the Project as defined in the General Conditions
but not to exceed a total of $5,000.00 without the prior written approval of the Owner.
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SECTION 3
ENTIRE AGREEMENT
This Agreement includes this executed agreement and the following docments 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. The Design Professional's Proposal
3. Attachments -- through --.
This Agreement is signed by the parties hereto effective as of the date first above written.
~~f~CITY OF DENT
MICHAEL A. COI~F~
CITY MANAGER --
ATTEST:
JE~IFER WALTERS, CITY SECRETARY
APPROVED ~TO LEGAL FORM:
HERB E~R~.)Y.~TY ATTORNEY
BY: -- ~ ~ ~
WITNESS:
· .
Dunk~n SiRls S~toff6ls,
BY: Bob Stoff~ls/~LA
Principal
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CITY OF DENTON
GENERAL CONDITIONS
TO
AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES
ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES
1,1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Prop~al',) to which these
General Conditions are attached) performed by the Architect or Engineer (hereinailer called the "Design Professional") or Design Professional's employees and consultants as
enumerated in Articles 2 and 3 of these General Conditions a~ modified by the Agreement and Proposal (the "Services").
1.2 The Design Professional will perform ail 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 local fly under similar conditions, including re*sonable, thformed judgments and prompt timely
actions (the "Degree of Care"). 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 Owner's approval a schedule for the performance of the Services which may he adjusted as the Project
proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submisalons by authorities having jurisdiction over the Project.
Time limits established by this schedule and approved by the Owner shall nob except for reasonable cause, be exceeded by the Design Professional or Owner, and any
adjustments to this schedule shall be mutually aeeaptable to both parties.
ARTICLE 2 SCOPE OF BASIC SERVICES
2.1 BASIC SERVICES DEFINED Thc 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 stmctoral, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate 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 progrmn 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 Owners program, construction schedule and constmetion budget requirements, each in
terms of the other, subject to the limitations set foah 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 illustrating the scale and relationship of Project components. The Schematic Design shall
contemplate compliance with ail 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 categoD' 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.
23 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by thc Owner in thc program, schedule or consb-uction budget, thc 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, structural, mechanical and electrical 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 dccuments, Design Professional warrants that the
Documents and specifications will be sufficient and adequate to fi~lffil 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 qualib' of the Project or in the construction budget
authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documenls consisting of Drawings and Specifications setting
forth in detail requirements for the constmc6on of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations.
2.4.2 The Design Professional shall assist thc Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, 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 edjuslments to previous preliminary estimates of Construction Cost indicated by changes in requirements
or gnneml 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.
22 CONSTUCTION CONTRACT PROCUREMENT
2.5.1 The Design Professional, following the Ownffs approval of the Construction 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 without
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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
thc solo discretion of the Owner.
2.5.2 lfthe conslmction contract amount for the Project exceeds the total constmcti*~n 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 Consteaetion
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 wiII not exceed
the total consmaction cost set forth in the approved Detailed Statement of Probable Constraction Costs.
2.6 CONSTRUCTION PHASE - ADMENISTRATION OF THE CONSTRUCTION CONTRACt
2.6.1 The Design Professional's responsibility to provide Basic Services for the Constmcimn Phase under this Agreement commences with thc award of the Contract
for Consimctinn and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subseedon 8.3.2.
2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth bolow. For design professionalss the administration
shall also be in accordance with AIA document.4201, General Conditions of the Contract for Constmcfion, current as of the dato of the Agreement, 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 Counall of Governments, current as of the date of the Agreement, unless otherwise provided in the Agreement
2.63 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 (1) during constmedon, and (2) at the Owners direction fi.om
time to time during the correction, or warranty period described in the Contract for Conalmction. The Design Professional shall have authority to act on behalf of the
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 inspect the construction sito at least two times a week, regardless of whether consimction is in progress, to bocomo 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 writton repo~ 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 defects or deficiencies in the work of Contractor or any subcoatmctors. The Design Professional represents that
he will follow Degree o£Care in performing all Services under the Agreement~ The Design Professional shall promptly correct any defective designs or specifications
thmished 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 tights hereunder.
2.6.6 The Design Professional shall not have control ovor 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 Con.actor's schedules or
failure to car~ out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's nogligant 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 of the 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 Contractor's Applications for Payment, the Design Professional
shall review and certify the amounts duo 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 date comprising the Contractor's Applicaaon 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 thriher constitute a
representation that the Contractor is entitled to payment in the amount certified. However, thc issu~ace of a Certificate for Payment shall not be a representation that
the Design Professional has (I) reviewed constmation 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 necessa~ 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 mede 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 Con~ractor, 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 Coatmctor's submittals such as Shop Drawings, Product Data and
Samples for file purpose of (1) determining compliance with applicable laws, statutes, ordinances and cedes; and (2) determining whether or not the work, when
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 saparata contractors, while allowing sufficient time in the Design Professional's professional judgment to
permit edequale review. Review of such submitlals is not conducted for the purpose of determining the accuracy mid complcteness of other details such as dimensions
and quantities or for substantiating ins~auctions for installation or performance of equipment or systems designed by the Contractor, all of which ~etoaln thc
responsibility of the Con.actor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safi:ty precautions
or, unless otherwise specifically stated by the Design Professional, of constmctinn means, methods, techniques, sequences or procedures. The Design Professional's
approval ora specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics
of materials, systems or equipment is required by the Contract Documents, thc Design Professional shall be entitled to rely npon such certification to establish that the
materials, systems or equipment will meet the performance criteria required by the Contract Documents.
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2.6.13 The Design Professional shall prepare Change Orders and Comttuction Change Directives, with supporting documentation and data if deemed necessapy 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 edjustment in the Contract Sum or an extension &the Contract Time which are not inconsistent with the intent
&the Contract Documents.
2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections th 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 Constmctinn 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 ~commendations on matters conceming performance of the Owner and Confi.actor under the ~gnirements
of the Contract Documents on written ~equest of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable
promptness and within any time limits agreed upon.
2.6.16 lna:rpretations 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 of drawings. When making such intelpretations 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 inte~pretafinns 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 ~easonable 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 Decuments.
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 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 T~e Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Construction Documents during
thc Construction Phase.
ARTICLE 3 ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 Thc 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 thc
Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if
authorized or confirmed in va-iting by the Owner. If services described under Contingent Additional Services in Section 3.3 are required duc to circumstanc~ beyond
the Design Professional's control, thc Design Professional shall notify thc Owner in writing and shall not commence such additional services until it receives written
approval fi.om thc 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 bc responsible for compensating the Design Professional for Contingent Additional Services only if
they are not required due to thc 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 mom Project
Representatives to assist in can~ing 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 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are:
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 regnlalions subsequent to the preparation of such documents, or
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 algnificant changes in the Project including hut net limited to, size, quality, complexity, or the Owner's schedule, except
for services required under Subsection 2.5.2.
3.3.3 Preparing Drawings, Specifications and other documentation and suppntting data, and providing other services in connection with Change Orders and
Construction Change Directives.
3.3.4 Providthg consultation concerning replacement of work damaged by fire or other cause during conalmction, 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 detects or deficiencies in the work of the Contractor, or by failure of performance
of either the Owner or Contmator 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.
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33,7 Providing services in connection with a public hearing, arbitration proceeding or ?gal 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 altemata, saparat¢ ol sequential bids or providing services in connection
with bidding or constmatinn prior t~ the completion of the Construction Documenls Phase.
3.3.9 No~vithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this/micle 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 Pmfessinnal's obligations under this Subsection 3.3.9.
3.4 OPTIONAL ADDITIONAL 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 gnvemmental authorities or others.having jufisdiction over the
Project.
3.4.4 Providing services relative to future facilities, systems and equipment.
3.43 Providing services to investigate existing conditions or faedities or to make measured drawings thexeot~
3.4.6 Providing services to verify the accuracy of drawings or other information fumiabed by the Owner.
3.4.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with
constmatinn 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 valuabons 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, fumishings 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 Constractinn.
3.4.15 Providing services of consultants for other than architectural, civil, slmctural, mechanical and electrical engineering portions of the Project provided as a part of
Basic Services.
3A.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted archituc~ral
practice.
3.4.17 Prepanng a set of reproducible record drawings m addttlon to those reqmred by Subsection 2.6. 9, showing slgmficant changes in the work made during cou~
strucgon based on marked-up prints, drawings and other data fumlshed by the Contractor to the Design Professional.
3.4.18 Notwithshmding 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 o£ in part due to the negligent act o£ omission of thc Design Professional shall be performed by the Design Professional as a part of the
Basic Services unde£ the Agn~ment with no additional compensation above and beyond the compensation due the Gesign Professional for the Basic Services. The
intervening or concunent negligence of the Owner shall not limit the Design Pmfessinnal's obligatinm under this Subsection 3.4.18.
ARTICLE 4 OWNER'S RESPONSIBILITIES
4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) 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.
4.2 The Owner shall establish and update an overall budget for the Project, including the Conslraation Cost, the Owner's other costs and reasonable contingencies
feinted to all of these costs.
4.3 ff 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
4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to ',he Project. The Owner or such authorized :repr~entative 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.
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4.5 Where applicable, the Owner shall thmish 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 sfreets, alleys, pavements and adjoining property and
structures; adjacent drainage; rights-of-way, restrietlons, e~sements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations,
dimensions and necessmy 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 Wlaere applicable, the Owner shall thmish the services of geotechnical engineers when such services are requested by the Design Pmthssinnal. 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 thmish 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 thmish stmc0aral, mechanical, chemical, air and water pollution tests, tests of hmrardous materials,
and other inboratoty and environmental tests, inspections and reports required by law or the Con~raat Documents.
4.8 The Owner shall fumish all legal, accounting and insurance counseling services as may be necessa,'y at any time for the Project, including auditing services the
Owner may require to verify the Contractor's Applications fur 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 sarvices, information, 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 Des gn Profess onal ,~ z
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 Contxact Decuments,
4.11 Design Professional shall propose language for certificates or certifications m 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 5 CONSTRUCTION COST
5.1 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 rates of labor and materials fi~mished by the Owner and equipment designed, specified, selected or
specially provided for by the Design Professional, plus a reasonable allowance for the Conh-actor's overhead and profit. In addition, a reasonable allowance for cnn-
tingencies shall be included for market conditions at the time of bidding and for changes in the work during constmcfion.
5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land. fights-of-way,
financing or other costs which are the responsibility of the Owner as provided in Paticle 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Conan'uction Cost and detailed estimates of Constmation Cost prepared by the Design
Professional represent the Design Professional's best judgment as a design professional familiar with the consh-uction indusl~y. It is recognized, however, that neither
the Design Professional nor the Owner has cnntml 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 warrant or represent tha~ bids or cost proposals will nut vmy
from the Owner's Project budget or from any estimate of Constmedon 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 thmishing, proposal or establishment ufa Project budget, unless
such fixed limit has been agreed upon in writing and signed by the pa~ties 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 matetials, 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 altamate 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 Conh-act Sum occurring after execution of the Contract
for Construction.
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5.23 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 date of submission
of the Construction Documents to the Owner and the date on which proposals are sought.
ARTICLE 6 OWNERSHIP 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 propofiy 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 fi.om any and all liabilily relating to their use in that project
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.
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ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT
7.1 The Design Professional may terminate the Agreement upon not less than thi~y 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 thiay (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 thiriy (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed pdor 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 properly of the Owner upon termination of the
Agn:ement and shall be promptly delivered to the O',mcr in a reasonably organized form. 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 thc Owner for more than 30 consecutive days, fac Design Professional shall be compensated for services satisfactorily performed prior to
notice of such suspension. When the Project is resumed, thc Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in thc interruption
and resumption of the Design Professional's services.
73 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 fac Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non-
performance and cause for termination.
7.5 If tile Owner falls to make payment to Design Professional wifain thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Desi~'
Professional may, upon seven days wfiiten notice to the Owner, suspend performance of services under fac AgrcemenL
7.6 In the event of termination not the fault of thc Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to
termination.
ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL
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8.1 DIRECr PERSONNEL EXPENSE
8.1.1 Direct Personnel Expense is defined as fac direct salaries of the Design Professional's personnel engaged on the Project and fac portion of the cost of their
mandatory and customa~ contributions and beneths 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 Profi~s~ional and
Design Professional's employecs 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 having jurisdiction 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 ofaer documents.
8.2.13 If auti~ofized in advance by the Owner, expense of overtime work requiring higher faan regnlar 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 drafiing 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.
83 PAYMENTS ON ACCOUNT OF BASIC SERVICES
83.1 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 fac additional period of time shall be computed in the manner set forth in Section 2 of the Agreement.
8.33 When compensation is based on a percentage of Construation Co~t and any portions of the Project are deleted or otherwise not consiaucted, 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 thc
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 Consmaction Co~t or detailed
estimate of Construction Cost for such portions of fac Project.
8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
I 8.4.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days after the
presentation to the Owner of the Design Professinnal% statement of services rendered or expenses incurred.
8.5 PAYMENTS WITHHELD No deductions shall be made from thc 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.
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8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of
Reimbursable Expenses and expenses pertaining to Additional Services and services performed on thc basis of a multiple of Direct Personnel Expense for inspection and
copying during regu]ar business hours for three years after the date of the final Certificate of Payment. or unt 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 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 execution, operation, or 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 par~ 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 Best
Rate Carriers 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 thc 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 accideut, and with proper~
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 shalI Inrnish 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 shag 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 MISCELLANEOUSPROV1SIONS
11.1 Thc Agreement shall be governed by thc laws of the State of Texas. Vcnuc of any suit or cause of action under the Agreement shall lie exclusively in Denton County,
Texas.
I 1.2 The Owner and Design Professional, respectively, bind themselves, their pattners, successors, assigns and legal representatives to the other patty to this Agreement and to
the parlners, successors, assigns and legal representatives of such other pa,'~y 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, thc Proposal, these General Conditions and other attachments referenced in Section 3 of thc
Agreement which together represent the entire and integrated agreement between thc Owner and Design Professional and supersedes all prior negotiations, represcatations or
agreements, either written or oral. The Agreement may be aracnded only by written instrument signed by both Owner and Design Professional. When interpreting thc
Agreement the cxcctacd Agreement, Proposal, these General Conditions and thc 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 hamlonized,
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
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 patty against either the Owner or Design
Professional.
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I 1.5 Upon receipt of prior written approval of Owner, thc 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 proprietu~y 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 thc 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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I 1.7 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 receip[ requested, unIess 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, roles, regulations, and ordinances applicable to the work covered hereunder as they
may now read or hereinalter be amended.
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'
LAKE FOREST PARK - PHASE I
Denton, Texas
May 20, 2004
Mr. Bob Tickner
Parks & Recreation Department
City of Denton
321 East McKinney Street
Denton, Texas 76201
Dear Mr. Tickner:
We appreciate the opportunity to submit this scope of services for design development and preparation of
construction documents for Lake Forest Park. Dunkin Suns Stoffels, Inc. (DSS) Will serve as the primary
consultant for this project. Other professional firms will be employed by DSS to complete the scope of
work; including, a civil engineering fn'm, acceptable to the City, to conduct the on-site topographical and
existing conditions surveys and preparation of civil engineering documents and an architectural firm,
acceptable to the City, will be retained if master planned facilities include architectural structures.
The following scope of services outlines the professional services to be performed in association with the
design development and preparation of construction documents for Lake Forest Park.
SCOPE OF SERVICES
Existing Conditions/Base Map
DSS obtained information concerning the existing site conditions, existing infrastructure, proposed
infrastructure improvements, city topographical maps, as well as, other pertinent data readily available
through the various City Departments during preparation of the Lake Forest Park Master Plan. The
above outlined information was used to prepare a base map which w'fll be used in design development
and the preparation of construction documents. For preparation of construction documents a survey
crew w'ill conduct on-site surveys of all portions of the Park where it is deemed prudent to obtain
accurate data reflecting the elevafional and spatial position within areas where desired facilities are to
be constructed. Fees for the inclusion of the on-site surveys will be included in the consultant's
professional fee.
Final Master Plan
The final master plan which was developed with input from City Staff, The Parks and Recreation
Board, City Council and a public meeting held at the Lake Forest Community Center will be reviewed
for the purpose of selecting the Phase I Development Elements.
9603 White Rock Trail, Suite 210 Dallas, Texas 75238
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Design Development Phase
Following review of the final master plan and upon receiving written authorization from City Staff the
consultant team will begin preparation of the construction documents by further analyzing those
elements to be incorporated within Lake Forest Park - Phase I and proposing refined design
recommendations and solutions for additional review and comment by City Staff. Detailed opinions
of probable cost for the construction of proposed elements will be prepared. These opinions of
probable costs may impact construction phasing of the proposed elements and which elements are to
be incorporated into the initial phase of construction.
Construction Documents and Specifications
Construction documents and specifications will be prepared for those park elements included within
the first phase construction as determined jointly with City Staff and the Parks and Recreation Board.
The construction plans and specifications shall be submitted for review by City Staff. Following Staff
review the construction documents shall be refined to address any comments and concerns noted by
City Staff. A final opinion of probable cost will be prepared for submission with the construction
documents.
Bidding Phase
After receiving written authorization from City Staff to proceed with project bidding the Consultants
Prepare addenda, as necessary, to interpret and clarify the bidding documents.
Consult with City Staff to make determinations regarding the acceptability of substitute
materials and equipment proposed by bidders, when substitution prior to the award of
contracts is allowed by the bid documents.
Assist the City in receiving bids,
Analyze the bids and make a written recommendation to the City for awarding a contract.
Construction Review
The Consultants will perform the following professional services during construction of the facilities:
· Consult and provide advice to the City.
· Preparation of elementary and supplementary sketches required to resolve field conditions.
· Approval of submittals and shop drawings submitted by the Contractor for conformance with
the design concept.
· The consultant shall make periodic site visits (one per month, minimum) to determine if the
project is proceeding in accordance with the contract documents. This shall not involve
exhaustive or continuous on-site inspections to check the
quality or quantity of work or materials. The consulting team shall not be responsible or liable
for the Contractor's failure to perform the construction work in accordance with the contract
documents.
· Review all certificates for payment submitted by the Contractor and make appropriate
recommendations for approval of pay requests.
· Prepare Change Orders for the City's approval and execution.
· Coordinate final site walk through with thc City at the conclusion of construction and provide
a punch list to Contractor of items to be corrected and/or completed.
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· Conduct final inspection review to verify that punch list items have been completed.
Compensation to Consultant
The consultants' total fee for the services outlined within this proposal is divided into two distinct
tasks as follows:
Construction Documentation
The professional services fee for the preparation of design development and construction
documents as outlined in this proposal is $32,100.00 and is based upon a construction budget of
$387,000.00.
On-Site Topographic Survey
The estimated professional serv/ces fee for the preparation of the on-site survey associated with
Phase I plans is $25,000.00
Billing for professional services will be submitted monthly and will be due and payable upon receipt.
Reimbursable Expenses
Reimbursable expenses include, but are not limited to, the following:
Printing/reproduction and photocopying charges, delivery/courier and mailing expenses. DSS
will bill direct reimbursable expenses to the City at their actual incurred cost. We recommend
that the City budget $5,000.00 for reimbursable expenses.
Additional Design Services
DSS will provide design services not identified in this scope of services upon receipt of authorization
from the City. We propose that additional services be provided on an hourly rate basis with a
mutually agreed "not to exceed" total. For additional services the following hourly rates shall be used:
Principal
Landscape Architect
CADD Technician
Technical Support
Clerical Support
$i05.00 per hour
$ 90.00 per hour
$ 75.00 per hour
$ 50.00 per hour
$ 25.00 per hour
Such additional services might include the following:
Design
Additional design services beyond those identified in the scope of services.
Any design changes following the preparation of the construction documents will be
considered an additional service and DSS will bill the City for the resultant changes to the
construction documents and for increased services at the hourly rates outlined above.
· Construction
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Preparation of Change Orders as required/requested which expand the original scope of
services.
Preparation of Alternates
The Consultant's fees are based upon the total dollars allocated for construction of the project
(construction budget). The Consultant will prepare an opinion of probable cost for construction.
This estimate will be based on the design development phase of the project. Should the City request
design alternates be prepared for bidding, the consulting team will invoice the City, in addition to the
original contract amount, the agreed percentage of construction cost for preparafion of plans,
construction documents and specifications for the alternates. The agreed percentage shall be
applicable to the amount that the alternate construction costs exceed the primary construcfion budget
on which the consultants fees were originally based.
Additional Services
The following services can be provided in addition to the Basic Design Services. DSS cannot
provided fixed fees for these items, however a recommended budgetary amount has been stipulated
for each service.
Site Plan and Final Plat
The consultants will prepare a site plan and final plat for the park. These documents will be prepared
according to the City of Denton's requirements for platting. We recommend the City budget
$10,000.00 for this task.
Geotechnical Consultants
A geotechnical firm will provide soil analysis and recommendations for the construction of the
various elements in the park. It is difficult, at this time, to estimate the quantity of borings required
until the consulting team has completed the master plan and has a clear understanding of the elements
to be included in phase I. This service will have to be authorized by the City of Denton. The services
of the geotechrrical consultant will be provided through the City, separate from DSS's contract. Based
on our experience, we recommend the City allow $15,000.00 for geotechnical services.
We appreciate the opportunity to provide you with this proposal, and we look forward to working with you
on this project. If you would like to discuss the content of this proposal or if I can be of further assistance,
please do not hesitate to contact me.
Sincerely,
DUNKIN SIMS STOFFELS, INC.
THE CITY OF DENTON
Accepted And Approved By:
Principal
Mayor
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