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2002-031ORDINANCE NO. ~/5/~,.~9- ~'fl / AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH FREESE AND NICHOLS, INC., FOR THE DESIGN AND DEVELOPMENT OF MAJOR WATER TRANSMISSION L1NES (36-INCH AND 42-INCH) TO CONNECT TO THE 54-INCH LAKE RAY ROBERTS TRANSMISSION LINE AS SET FORTH IN THE CONTRACT; AND PROVDING AN EFFECTIVE DATE (PSA 2777 - PROFESSIONAL SERVICES AGREEMENT FOR 36- INCH AND 42-INCH TRANSMISSION LINES AWARDED TO FREESE AND NICHOLS, INC. FOR A TOTAL ESTIMATEDAMOUNT OF $233,429). WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into a professional service contract with the Provider, Freese and Nichols, Inc.,, to provide professional services for the design and development of major water transmission lines (36-inch and 42-inch) to connect to the 54-inch Lake Ray Roberts transmission line as set forth in the contract, 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 ~(~_/~ , 2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: z PSA ~2777 - PROFESS~ S~VICES FOR LAKE RAY ROBERTS WATER LINES - 2002 2 STATE OF TEXAS § COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR THE DESIGN AND DEVELOPMENT OF MAJOR WATER TRANSMISSION LINES THIS AGREEMENT is made and entered into as of the J_~ff~day of (/'~,/~7//g't~/'-' , 2002, by and between the City of Denton, Texas, a Texas Municipal Cd(porafion, ,~ith its principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter "OWNER") and Freese and Nichols, Inc., a Texas Corporation, with its offices at 4055 International Plaza, Suite 200, Fort Worth, Texas 76109 (hereafter "CONSULTANT"); the parties acting herein, by and through their duly-anthorized representatives and officers. WlTNESSETH, that in consideration of the mutual promises, covenants, agreements herein, and in consideration of the premises, the parties hereto do mutually AGREE as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set forth herein are in connection with the following described project (the "Project"): Professional engineering services pertaining to the design of the 36" and 42" water transmission lines to connect the 54" Lake Ray Roberts Water Treatment Line which includes, but is not limited to a route study identifying options and obstacles associated with this connection and to the existing water distribution system including development plans and specifications for construction. ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following Basic Services in a professional manner: A. To perform those professional services as set forth in the Scope of Services and Responsibilities of Owner - 36" and 42" Water Transmission Lines for the City of Denton, dated January 9, 2002, prepared by CONSULTANT for OWNER; which document is attached hereto as Exhibit" A," and is incorporated herein by reference; which document is comprised of, and subdivided into the following two(2) sections: 1. Narrative on Scope and Assumptions, Scope of Work, and Responsibilities of Owner 2. Attachment CO - Compensation Page 1 ofll B. If there is any conflict, or if any conflict arises between the terms of this Agreement and Exhibit "A" attached to this Agreement, the terms and conditions of this Agreement shall control over the terms and conditions of the Exhibit. ARTICLE III ADDITIONAL SERVICES Any additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included as Basic Services in the above-described Scope of Services, set forth as provided by Article II. above, shall be later agreed-upon by OWNER and CONSULTANT, who shall determine, in writing, the scope of such additional services, the amount of compensation for such additional services, and other essential terms pertaining to the provision of such additional services by the CONSULTANT. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution by the OWNER and the CONSULTANT and upon the issuance of a notice to proceed by the OWNER, and shall remain in force and effect for the period that may reasonably be required for the completion of the Project, including Additional Services, if any; and any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule reasonably established by the OWNER, acting through its City Manager, its Assistant City Manager for Utilities, or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: "Subcontract Expense" is defined as those expenses, if any, incurred by CONSULTANT in the employment of others in outside firms, for services in the area of professional engineering, or related serviCes. Any subcontractor or subconsultant billing reasonably incurred by the CONSULTANT in connection with the Project shall be invoiced to OWNER at the actual cost plus ten percent. "Direct Non-Labor Expense" is defined as that expense, based upon actual cost, for any out-of-pocket expense reasonably incurred by the CONSULTANT in the performance of this Agreement for long distance telephone charges, telecopy charges, messenger services, printing and reproduction expenses, out-of-pocket expenses for purchased computer time, prudently incurred travel expenses related to the work on the Project, and similar incidental expenses incurred in connection with the Project. page 2 of I 1 B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic Services tasks set forth in the Scope of Services as shown in Article II above; as follows: CONSULTANT shall perform its work on this Project in accordance with the provisions of those tasks which are described and as set forth in "Scope of Services and Responsibilities of Owner - 36" and 42" Water Transmission Lines for the City of Denton - Attachment CO - Compensation" of Exhibit "A" attached hereto and incorporated herewith by reference. For lump sum tasks as identified in Attachment CO, CONSULTANT will submit monthly invoices based on the actual percentage of work completed. For other tasks, CONSULTANT shall bill from time sheets, on a once- monthly basis, in minimum 1/2 hour or smaller time increments, at the hourly Billing Rates or as otherwise provided. For and in consideration of the professional services to be performed by the'CONSULTANT herein, the OWNER agrees to pay, at an hourly rate shown in Exhibit "A" which is incorporated herewith by reference, a total fee, including reimbursement for direct non-labor expenses and for its subcontractor expense, an amount not to exceed $233,249. Partial payments to the CONSULTANT will be made monthly in accordance with the statements reflecting the actual completion of the -Basic Services, rendered to and approved by the OWNER through its City Manager, or its Assistant City Manager for Utilities, or his designee. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The OWNER may withhold the final ten (10%) percent of the above not-to-exceed amount until satisfactory completion of the Project by the CONSULTANT. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory as reasonably determined by the City Manager, or the Assistant City Manager for Utilities or his designee, or which is not submitted by CONSULTANT to the OWNER in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT at any time when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the not-to- exceed amount as stated hereinabove, without first having ol~tained the prior written authorization from the OWNER. CONSULTANT shall not proceed to perform any services to be later provided for under Article III. "Additional Services" without first obtaining prior Written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III. hereinabove, CONSULTANT shall be paid based on a to-be-agreed-upon Page 3 of 11 Schedule of Charges. Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with Article V.B. hereinabove. Statements for Basic Services and any Additional. Services shall be submitted to OWNER no more frequently than once monthly. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT'S undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from and after the said sixtieth (60th) day, and in addition, thereafter, the CONSULTANT may, after giving ten (10) days written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER, for services, expenses and charges. Provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set forth herein, if the OWNER reasonably determines that the CONSULTANT's work is unsatisfactory, in accordance with Article V.B. of this Agreement, and OWNER has notified CONSULTANT of that fact in writing. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any of its subcontractors or subconsultants. ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project and OWNER'S use of these documents in other projects shall be at OWNER'S sole risk and expense. In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this Agreement, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right arising from employee status. Page 4 of 11 ARTICLE IX iNDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys 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, or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, subcontractors, subconsultants, attorneys, and/or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity , to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE X iNSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do'business in the State of Texas by the State Insurance Board or any successor agency, that has a rating with A. M. Best Rate Carriers of at least an "A-" or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate; and with property damage limits of not less than $100,000 for each occurrence, and not less than $100,000 in the aggregate. B. 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 for not less than $100,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements and Employer's Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $2,000,000 annual aggregate. E. CONSULTANT shall furnish insurance certificates or insurance policies to the OWNER to evidence such insurance coverage. The insurance policies shall name the OWNER as an additional insured on all such policies to the extent that is legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without at least thirty (30) days prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation of coverage, Page 5 of 11 deliver copies of any such substitute policies, furnishing at least the same policy limits and coverage, to OWNER. ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement, may include the other party to the disagreement without the other's approval. ARTICLE XII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty (30) days advance written notice to the other party. This Agreement may alternatively be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance or other reason(s), and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. If this Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services upon receipt of the written notice of termination from OWNER, and shall render a final bill for services to the OWNER within twenty (20) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article V. of this Agreement. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and to the new consultant. If applicable, OWNER shall allow CONSULTANT a reasonable time to transition and to turn over the Project to a new consultant. CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its files. ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other Page 6 of 11 work performed pursuant to this Agreement; nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its principals, officers, employees, agents, subcontractors, and subconsukants. ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered to; or telecopied to; or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein: To CONSULTANT: To OWNER: Freese and Nichols, Inc. Robert Pence, Senior Vice-President 4055 International Plaza, Suite 200 Fort Worth; Texas 76109 Fax: (817) 735-7491 City of Denton, Texas City Manager 215 East McKinney Denton, Texas 76201 Fax: (940) 349-8596 All notices given under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given. ARTICLE XV ENTIRE AGREEMENT This Agreement consisting of eleven (11) pages and one (1) Exhibit constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XVI SEVERABILTY If any provision of this 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 this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall refqrm this Agreement, to the extent reasonably possible, to replace such stricken provisign with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision. Page 7 ofll ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended. ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL CONSULTANT represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall immediately inform the OWNER in writing of any conflict of interest or potential conflict of interest that CONSULTANT may discover, or which may arise during the term of this Agreement. All services required hereunder will be performed by CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the OWNER. CONSULTANT shall promptly notify OWNER in writing of any change of its name as well as of any significant change in its corporate structure or in its operations. ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto arising out of, or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in Page 8 of 11 writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXII MISCELLANEOUS A. The following exhibit is attached to, incorporated herewith by reference, and is made a part of this Agreement for all purposes pertinent: Exhibit "A" --"Scope of Services and Responsibilities of Owner - 36" and 42" Water Transmission Lines for the City of Denton, Texas" dated January 9, 2002. CONSULTANT agrees that OWNER shall, until the expiration of four (4) years after the final payment made by OWNER under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct examinations or audits in compliance with this Article. OWNER shall give CONSULTANT reasonable advance notice of all intended examinations or audits. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. For purposes of this Agreement, the parties agree that the Project Principal shall be Raymond Longoria, Principal, P.E., and the key persons who will perform most of the work as the Project Team, include the Project Manager, Russell Gibson, P.E., under, and in accordance with this Agreement, shall be as specifically identified and set forth in "Scope of Services and Responsibilities of Owner - 36" and 42" Water Transmission Lines for the City of Denton" document attached hereto as Exhibit "A". This Agreement has been entered into with the understanding, expectation, and the OWNER's reliance, that the above-stated employees of CONSULTANT shall perform all or a significant portion of the work on the Project. Any proposed changes regarding the change of the Project Manager or other key personnel, requested by CONSULTANT, respecting one or more of the above-stated employees, shall be subject to the approval of the OWNER, which approval the OWNER shall not unreasonably withhold. Nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the other incidental services required herein, under its supervision or control. CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the provisions hereof in accomplishing the Project, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work being carried on by the OWNER. Page 9 of 11 F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANT to perform professional services under this Agreement. OWNER and CONSULTANT agree that CONSULTANT is entitled to rely upon information furnished to it by OWNER without the need for further inquiry or investigation into such information. G. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS WHEREOF, the OWNER, the City of Denton, Texas has executed this Agreement in four (4) original counterparts, by and through its duly-authorized City Manager; and CONSULTANT has executg5~' this Agreement ,by and through its duly-authorized undersigned officer on this the /ffrZ~ day of (_~/~~ ,2002. "OWNER" CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: I-IERBERT L. PROUTY, CITY ATTORNEY Page 10ofll ATTEST: "CONSULTANT' FREESE AND NICHOLS, INC. A Texas Corporation S:\Our Documents\Contracts\0~kFr¢¢se & Nichols PSA-Design of Major Water Transmission Lines-2002.doc Page 11 of 11 EXHIBIT A SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER 36" AND 42" WATER TRANSMISSION LINES FOR THE CITY OF DENTON JANUARY 9, 2002 GENERAL: The City of Denton 36 and 42-Inch Water Transmission Project (the Project) will include the following facilities: · 42-Inch Pipeline along Loop 288 fi.om Sherman Drive to Smart Road. · 16-Inch Pipeline along Stuart Road from Loop 288 to an existing pipeline. · 36-Inch Pipeline along Loop 288 fi.om Stuart Road to Locust. · 16-Inch Pipeline along Locust. · 36-Inch Pipeline along Loop 288 fi.om Locust to the existing 16-inch line near Texas Instruments. · Valves, connections, and pipeline appurtenances as required. The Project will be designed and constructed as one construction contract. ARTICLE I BASIC SERVICES: FNI shall render the following professional services in connection with the development of the Project: A. PRELIMINARY PHASE Upon execution of this AGREEMENT, FNI shall: 1. Consult with OWNER: (1) to review the s~ope of services, (2) to verify OWNER's requirements for the Project, and(3) to review available data. 2. Advise OWNER as to the necessity of OWNER's providing or obtaining data or services fi.om others, and assist OWNER in connection with any such services. 3. Provide preliminary route selection maps with up to two alternate routes. The mapping shall include properties, utilities and topographic information. FNI will prepare cost estimates and recommendations for the final pipeline route. FNI will meet with the OWNER to review the route. Estimates of the cost of land and rights-of-way, compensation for or damages to properties and interest and financing charges will be provided by OWNER or others so designated by OWNER. In amving at its opinion of probable construction cost for the Project, FNI will include the estimates furnished by OWNER and will have no responsibility to determine the accuracy or validity of these estimates. 4. Prepare preliminary design documents consisting of final design criteria, preliminmy drawings and conceptual design information. 5. Based on the information contained in the pralimmary design documents, submit a revised opinion of probable Project Costs. 6. Furnish five (5) copies of the above preliminary design documents and present and review them with OWNER. T:\Dentonkscope 36 and 42 draft 2.doc SC- 1 OWNER~,~,- T:\Dcnton~scop¢ 36 and 42 drall 2.doc B. DESIGN PHASE: Upon approval of the preliminary design documents, FNI shall provide professional services m this phase as follows: 1. Prepare drawings, specifications, Construction Contract Documents, designs, and !ayouts of improvements to be constructed. Attend two meetings with the OWNER to review the project 2. If specifically authorized in writing by the OWNER, FNI wil! provide special services, including environmental services, surveying services, geotechnical services, corrosion engineering services, and miscellaneous special services as described hereaften FNI will advise OWNER of any other special services and the retention of special consultants. The cost of other special services shall be paid by OWNER and are not included in the services performed by FNI. 3. Furnish OWNER, when requested, the engineering data necessary for applications for routine permits required by local, state and federal authorities. Preparation of applications and supporting documents for government grants or for planning advances is an Additional Service. 4. Submit drawings, specifications, and Construction Contract Documents to the applicable federal and state agency(s) for approval, where required, including permit applications for road crossings. 5. Furnish such information necessm3' to utility companies whose facilities may be affected or services may be required for the Project. 6. Review previous surge studies, and verify conclusions from previous surge studies are valid, based on the final design of the Project. 7. Prepare revised opinion of probable construction cost. 8. Prepare bidder's proposal forms (project quantities) of the improvements to be constructed. 9. Furnish OWNER five (5) sets of copies of drawings, specifications, and bid proposals marked "Preliminary" for approval by OWNER. Upon final approval by OWNER, FNI will provide OWNER ten (10) sets of copies of "Final" drawings. C. BID PHASE. Upon completion of the design services and approval of"Final" drawings and specifications by OWNER, FNI will proceed with the performance of services in tiffs phase as follows: 1. Assist OWNER in securing bids. Issue a Notice to Bidders to prospective contractors and vendors listed in FNI's database of prospective bidders, and to selected plan rooms. Provide a copy of the notice to bidders for OWNER to use in notifying construction news publications and publishing appropriate legal notice. The cost for publications shall be paid by OWNER. 2. Print Bid Documents and distribute to selected plan rooms, and to prospective bidders that respond to the Notice to Bidders. Send one (1) copy of Bid Documents to TNRCC, if required. 3. Maintain information on entities that have been issued a set of bid documents. Distribute information on plan holders to interested contractors and vendors on request. 4. Assist Owner by responding to questions and interpreting bid documents. Prepare and issue addenda to the bid documents to plan holders if necessary. FNI.g_~4( SC-2 OWNER.t~ At OWNER request, FNI will assist OWNER in the opening, tabulating, and analyzing the bids received. Review the qualification information provided by the apparent low bidder to determine if, based on the information available, they appear to be qualified to construct the project. Recommend award of contracts or other actions as appropriate to be taken by OWNER. Pre-qualification of all prospective bidders and · issuing a list of eligible bidders prior to the bid opening is an additional service. Assist the OWNER in conducting a pre-bid conference for the construction projects and coordinate responses with OWNER. Response to the pre-bid conference will be in the form of addenda issued after the conference. Attend the tour of the project site after the pre-bid confe)'ence. Assist OWNER in the preparation of Construction Contract Documents for construction contracts. Provide ten (10) sets of Construction Contract Documents which include information from the apparent low bidders bid documents, legal documents, and addenda bound in the documents for execution by the OWNER and construction contracton Distribute five (5) copies of these documents to the contractor with a notice of award that includes directions for the execution of these documents by the construction contractor. Provide OWNER with the remaining five (5) copies of these documents for use during construction. Additional sets of documents can be provided as an additional service. 8. Furnish contractor ten (10) copies of the drawings and specifications for construction pursuant to the General Conditions of the Construction Contract. CONSTRUCTION PHASE: Upon completion of the bid phase services, FNI will proceed with the performance of construction phase services as described below. FNI will endeavor to protect OWNER in providing these services however, it is understood that FNI does not guarantee the Contractor's performance, nor is FNI responsible for supervision of the Contractor's operation and employees. FNI shall not be responsible for the means, methods, techniques, sequences or procedures of construction selected by the Contractor, or any safety precautions and programs relating in any way to the condition of the premises, the work of the Contractor or ,any Subcontractor. FNI shall not be responsible for the acts or omissions of any person (except its own employees or agents) at the Project site or otherwise performing any of the work of the Project. These services are based on the use of OWNER's standard General Conditions for construction projects. The OWNER agrees to include provisions in the construction contract documents that will require the construction contractor to include FNI and their subconsultants on this project to be listed as an additional insured on contractor's insurance policies. Assist OWNER in conducting pre-construction conference with the Contractor, review construction schedules prepared by the Contractor pursuant to the requirements of the construction contract, and prepare a proposed estimate of monthly cash requirements of the Project from information provided by the Construction Contracton 2. Establish communication procedures with the OWNER and contracton Establish and maintain a project documentation system consistent with the requirements of the construction contract documents. Monitor the processing ofcontractor*s submittals and provide for filing and retrieval of project documentation. Review contractor's submittals, including, requests for information, modification requests, shop drawings, schedules, and other submittals in accordance with the requirements of the construction contract documents for the projects. Monitor the progress of the contractor in sending and processing submittals to see that documentation is being processed in accordance with schedules. 4. Based on FNI's observations as an experienced and qualified design professional and review of the Payment Requests and supporting documentation submitted by Contractor, determine the amount that FNI reconuge, nds T:kDemonkseope 36 and 42 draa 2.doc S C-3 OWNER/~ Contractor be paid on monthly and final estimates, pursuant to the General Conditions of the Construction Contract. FNI will attend the pm-construction meeting and f'mal inspection visit(s). In addition, FNI will make five (5) visits to the site (as distinguished from the continuous services of a Resident Project Representative) to observe the progress and the quality of work and to attempt to deterrinne in general if the work is proceeding in accordance with the Construction Contract Documents. In this effort FNI will endeavor to protect the OWNER against defects and deficiencies in the work of Contractors and will report any observed deficiencies to OWNER. Visits to the site in excess of the specified number am an additional service. Notify the contractor of non4conformmg work observed on site visits. Review quality related documents provided bY the contractor such as test reports, equipment installation reports or other documentation required by the Construction contract documents. 7. Provide recommendations to the OWNER for the work of testing laboratories and inspection bureaus required for the testmg or inspection of materials, witnessed tests, factory testing, etc. for quality control of the Project. The cost of such quality control shall be paid by OWNER and is not included in the services to be performed by FNI. Interpret the drawings and specifications for OWNER and Contractor(s). Investigations, analyses, and studies requested by the Contractor(s) and approved by OWNER, for substitutions of equipment and/or materials or deviations from the drawings and specifications is an additional service. Establish procedures for administering constructive changes to the construction contracts. Process contract modifications and negotiate with the contractor on behalf of the OWNER to determine the cost and time impacts of these changes. Prepare change order documentation for approved changes for execution by the OWNER. Documentation of field orders, where cost to OWNER is not impacted, will also be prepared. Investigations, analyses, studies or design for substitutions of equipment or materials, corrections of defective or deficient work of the contractor or other deviations from the construction contract documents requested by the contractor and approved by the Owner are an additional service. Substitutions of materials or equipment or design modifications requested by the OWNER are an additional service. 10. Prepare documentation for contract modifications required to implement modifications in the design of the project. Receive and evaluate notices of contractor claims and make recommendations to the OWNER on the merit and value of the claim on the basis of information submitted by the contractor or available in project documentation. Endeavor to negotiate a settlement value with the Contractor on behalf of the OWNER if appropriate. Providing these services to re~,iew or evaluate construction contractor(s) claim(s), supported by causes not ~vithin the control of FNI are an additional service. 11. Conduct, in company with OWNER's representative, a final review of the Project for conformance with the design concept of the Project and general compliance with the Construction Contract Documents. Prepare a list of deficiencies to be corrected by the contractor before recommendation of fmal payment. Assist the Ci.ty in obtaining legal releases, permits, warranties, spare parts, and keys from the contracton Review and comment on the certificate of completion and the recommendation for fmal payment to the Contractor(s). Visiting the site to review completed work in excess of two trips are an additional service. 12. Revise the construction drawings in accordance with the information furnished by construction Contractor(s) reflecting changes in the Project made during construction. Two (2) sets of prints of "Record Drawings" shall be provided by FNI to OWNER. FNI will also provide an electronic copy of the "Record Drawings" in CADD format. SURVEYING: If specifically authorized in writing, FNI will retain and monitor the efforts of a surveying T:\Denton'~scope 36 and 42 draft 2.doc SC-4 firm (Surveyors and Engineers of North Texas) to provide the following services: · Prepare a parcel map showing property ownership based on tax appraisal information · Provide deed research for the preparation of easement documents. (This task does not include title research) · Provide survey control along the pipeline route in a coordinate system approved by the Owner, and compatible with other pipeline projects. · Prepare metes and bounds easement descriptions for each private tract. For budgeting purposes, a maximum of fifteen tracts are estimated. Payment for parcel descriptions shall be on a per parcel basis. If more than fifteen parcels are required, then additional compensation will be required. · Provide topographic survey for a 100-foot width along the pipeline routes · Provide survey ties to major utility lines, as located by the utility owners · Stake the pipeline at 1000-foot intervals during the bid phase, for use of prospective bidders · Meet with the Contractor and flag control points, for contractor's use GEOTECHNICAL ENGINEERING: If specifically authorized in writing by the City of Denton, FNI will provide geotechnical engineering and a sub-consultant drilling and laboratory-testing finn (Groundwater Monitoring, Inc.) to provide the following services: · Review geologic maps and the'pipeline route to identify testing locations · Drill up to ten (10) borings averaging 20 feet deep. Log the borings, and obtain soil samples for soil classification and the corrosion analysis testing. Provide rock cores and RQD of rock, where applicable. · Provide laboratory testing, including atteburg limits, unconfined strength of rock samples, sieve analysis, and water content. · Provide conclusions of testing and geoteclmical analysis in a report, for use of the pipeline designers and prospective bidders. CORROSION ENGINEERING: If specifically authorized hi writing by the City of Denton, FNI will retain ,md monitor the services of a corrosion-engineering fn'm (Con-pro Companies, Inc.) to provide the following services: · Conduct field soil resistivity surveys along the proposed pipeline route. Conduct tests for foreign pipeline cathodic protection systems, and AC interference. · Conduct laboratory tests of soil samples, including pH, moisture, chlorides, sulfides and conductivity. · Analyze data and make recommendations for cathodic protection systems and pipeline materials for up to three alternate pipeline materials. · Prepare detailed drawings and specifications for corrosion monitoring systems and cathodic protection systems. · During the construction phase, review contractor's submittals and provide comments · Provide one day of on-site inspector training, at the beginning of construction · Observe the cathodic protection system commissioning and interference testing, to be provided by the Contractor. · Review the Contractor's commissioning report. T:/Denton~scope 36 and 42 draft 2.doc ENVIRONMENTAL PERMITTING: If specifically authorized in writing by the City of Denton, FNI will provide office research and a field review of the pipeline route, to determine if any environmental permits are required. FNI will provide an archeological review of the portion of the route that is on undisturbed property.. Based on this field review, FNI will prepare a memorandum to the OWNER, indicating the conclusions of the analysis. It is anticipated that no environmental permit notifications will be needed for the project and the Project SC-5 OWNE~ will be applicable to Nationwide Permit No. 12, since most of the route is previously disturbed, and only one small drainage swale is crossed. If environmental permit applications or in-depth environmental studies wererequired, then these studies would be an additional service. ARTICLE II ADDITIONAL SERVICES: Additional Services to be performed by FNI, if specifically authorized in writing by OWNER, which are not included in the above-described basic services, are described as follows: A. GIS mapping services or assistance with these services. Making revisions to drawings, specifications or other documents when such revisions are 1) consistent with approvals or instructions previously given by OWNER or 2) due to other causes not solely within the control of FNI. C. Providing consultation concerning the replacement of any Work damaged by fire or other cause during the construction, and providing services as may be required in connection with the replacement of such Work. Investigations involving consideration of operation, maintenance and overhead expenses, and the preparation of rate schedules, earnings and expense statements, feasibility studies, appraisals, evaluations, assessment schedules, and material audits or inventories required for certification of fome account construction performed by OWNER. Providing shop, mill, field or laboratory inspection of materials and equipment. Observe factory tests of equipment at any site remote to the project or observing tests required as a result of equipment failing the initial test. F. Preparing Operation and Maintenance Manuals or conducting operator training. (3. Furnishing the services of a Resident Project Representative to act as OWNER's on-site representative during the Construction Phase· H. Performing investigations, studies and analyses of substitutions of equipment and/or materials or deviations from the drawings and specifications. Providing environmental support services including the design and implementation of ecological baseline studies, environmental monitoring, impact assessment and analyses, permitting assistance, and other assistance required to address environmental issues. J. Performing investigations, studies, and analysis of work proposed by construction contractors to correct defective work. K. Design, contract modifications, studies or analysis required to comply with local, State, Federal or oth6r reguiatory agencies that become effective after the date of this a~eement. L. Services required to resolve bid protests or to rebid the projects for any reason. M. Visits to the site in excess of the number of trips included in Article I for periodic site visits, coordination meetings, or contract Completion activities. T:ff)entonXseope 36 and 42 draft 2.doc SC-6 R. S. T. Any services required as a result of default of the contractor(s) or the failure, for any reason, of the contractor(s) to complete the work within the contract time. Providing services after the completion of the construction phase not specifically listed in Article I. Providing basic or additional services on an accelerated time schedule. The scope of this service include cost for overtime wages of employees and consultants, inefficiencies in work sequence and plotting or reproduction costs directly attributable to an accelerated time schedule directed by the OWNER. Providing services made necessary because of unforeseen, concealed, or differing site conditions or due to the presence of hazardous substances in any form. Providing services to review or evaluate construction contractor(s) claim(s), provided said clanns are supported by causes not within the control of FNI. Providing value engineering studies or reviews of cost savings proposed by construction contractors after bids have been submitted. Provide follow-up professional services during Contractor's warranty period. ARTICLE III TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services in accordance with the following schedule: · Complete surveying and easement documents within nine (9) wee'ks of receiving permission to access properties. · Complete design plans and specifications within twenty (20) weeks of receiving permission to access properties. If FNI's services are delayed through no fault of FNI, FNI shall be entitled to adjust contract schedule consistent with the number of days of delay. These delays may include but are not limited to delays in OWNER or regulatory reviews, delays on the flow of information to be provided to FNI, governmental approvals, etc. If these delays are excessive, then FNI reserves the fight to negotiate additional compensation for additional services related to the delay ARTICLE IV RESPONSIBILITIES OF OWNER: OWNER shall perform the following in a timely manner so as not to delay the services of FNI: Designate in ~witing a person to act as OWNER's representative with respect to the services to be rendered under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive information, iuterpret and defme OWNER's policies and decisions with respect to FNI's services for the Project. Provide all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the drawings and specifications. T:\Denton~s¢op¢ 36 and 42 draft 2.do¢ Assist FNI by placing at FNI's disposal all available information pertment to the Project including previous reports and any other data relative to design or construction of the Project. SC-7 OWNE~ L. M. N. O. Arrange for access to and make all provisions for FNI to enter upon public and private property as required for FNI to perform services under tins AGREEMENT. If conditions are muddy, the driller will delay drilling until conditions improve. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as OWNER deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of FNI. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. Provide title investigations and title insurance, if deemed necessary by the OWNER. Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER may require or FNI may reasonably request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their fumishing and performing the work. OWNER shall determine, prior to receipt of construction bid, if FNI or OWNER will furnish Resident Project Representative service. If OWNER designates a person to serve in the capacity of Resident Project Representative who is not FNI or FNI's agent or employee, the duties, responsibilities and limitations of authority of such Resident Project Representative(s) will be set forth in an Attachment attached to and made a part of this AGREEMENT before the Construction Phase of the Project begins. Attend the pre-bid conference, bid opening, preconstmction conferences, construction progress and other job related meetings and substantial completion inspections and final payment inspections. Give prompt written notice to FNI whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of FNI's services, or any defect or nonconformance of the work of any Contractor. Fumish, or direct FNI to provide, Additional Services as stipulated in Attachment SC, Article II of this AGREEMENT or other services as required. Provide easement acquisition services. Bear all costs incident to compliance with the requirements of this Article IV. ARTICLE V DESIGNATED REPRESENTATIVES: FNI and OWNER designate the following representatives: Owner's Designated Representative - Name: T:\Denton~scope 36 and 42 dran 2.doc Frank G. Pavne. P.E. 601 E. Hickory, Suite B Denton, TX 76205 SC-8 Phone:: (940) 349-8910 Fax:: (940) 349-8951 E-mail: frank.p avne@cityofdenton.com FNI's Project Manager - · FNI's Accounting Representative - Name: Russell Gibson, P.E. 4055IntematioaalPlaza, Suite 200 Fon Worth, Texas 76109-4895 Phone:: 817-735-7323 Fax:: 817-735-7491 E-mail: rlg~freese.com Name: Terri Witcher 4055IntemationalPlaza, S~te 200 Fo~Worth, Texas 76109-4895 Phone:: 817-735-7339 Fax:: 817-735-7491 E-mail: ttw~freese.com T:\Denton~scope 36 and 42 draft 2.doc SC-9 OWNE~ ATTACHMENT CO COMPENSATION LUMP SUM WITH ADDITIONAL WORK BASED ON COST TIMES MULTIPLIER Basic Services: Compensation to FNI for the Basic Services in Exhibit A, Article I, Paragraphs A, B, C, and D shall be the lump sum of $143,300. IfFNI sees the Scope of Services changing so that additional services are needed, including but not limited to those services described as Additional Services in Attachment SC, FNI will notify OWNER for OWNER's approval before proceeding. Additional Services shall be computed based on the Schedule of Charges. Special Services: The total fee for special services in Exhibit A shall be computed based upon the Schedule of Charges for Additional Work as described below, but shall not exceed the following: Article I Article Article Article Article - Paragraph E (Surveying): Topographic Survey - Not to Exceed $19,085.00 Easement Parcels - 15 Parcels at $473.00/lump sum each = $7,095.00 Bid and Construction Phase - Not to Exceed $12,738.00 I - Paragraph F (Geotechnical Engineering): 5 test holes, coordination, and report - Not to Exceed $11~550.00 5 additional holes at $1,500/lump sum each = $7,500.00 I - Paragraph G (Corrosion Engineering): Corrosion Design Phase ~ Not to Exceed $10,450.00 Corrosion Construction Phase - Not to Exceed $3,828.00 I - Paragraph H (Environmental Permitting): Not to Exceed $7,700.00 II - Miscellaneous Additional Services as agreed to by the Owner Not to Exceed $10,000.00 C. Schedule of Charges for Additional Work: StaffMember Salary Cost Times Multiplier of 2.3 Resident Representative Salary Cost Times Multiplier of 2.0 Salary Cost is defined as the cost of salaries (including sick leave, vacation, and holiday pay applicable thereto) plus unemployment and payroll taxes and contributions for social security, employment compensation insurance, retirement benefits, medical and other insurance, and other miscellaneous benefits. Other Direct Expenses Actual Cost Times Multiplier of I. 10 Other direct expenses shall include outside printing and reproduction expense, communication expense, travel, transportation and subsistence away from Fort Worth and other miscellaneous expenses directly related to the work, including costs of laboratory analysis, test, and other work required to be done by independent persons other than staff members. Rates for In-house Services Computer and CAD Calcomp Plotter PC CAD Stations $10.00 per connect hour Bond Interpro $12.50 per connect hour Color T:\Denton~op¢ 36 and 42 draft 2.doc CO-1 $ 2.00 per plot $ 3.50 per plot OWNER~ PC Stations VAX Computer Print Shop $ 8.00 per connect hour $20.00 per connect hour ATTACHMENT CO Vellum $ 4.00 per plot Mylar $10.00 per plot Bluelines Offset and Xerox Copies Offset and Xerox Copies GBC Binding (Regular Cover) GBC Binding (Emboss. Cover) Tape Binding (Regular Cover) Tape Binding (Emboss. Cover) $ 0.07 per square foot $ 0.07 per single side copy $ 0.14 per double side copy $ 2.00 per book $ 4.00 per book $1.75 per book $ 3.75 per book 4-29-95 T:\Denton~scope 36 and 42 drat~ 2.~toc CO-2 OWNER~__~