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DR1101-CN120530 CITY OF COPPELL CONSULTING ENGINEERS CONTRACT STATE OF TEXAS § KNOW ALL BY THESE PRESENTS § CITY OF COPPELL § THIS ENGINEERING SERVICES CONTRACT, hereinafter referred to as "Contract," made, entered into and executed this the 36 day of , 2012, by and between the City of Coppell acting by and through the City Manager wi pproval of the City Council hereinafter referred to as "City", and Freese and Nichols, Inc. , hereinafter referred to as "Engineer". WITNESSETH WHEREAS, the City desires to contract for Professional Engineering Services, hereinafter referred to as "Services", in connection with the North Lake Dam Project No. DR 11-01 , hereinafter referred to as the "Project"; and WHEREAS, the Engineer is acceptable to the City and is willing to enter into a Contract with the City to perform the hereinafter defined Services necessary to complete the Project; and WHEREAS, said Services shall be as defined herein and in the detailed Basic Services, Attachment A, and Special Services, incorporated herein by attachment and by reference; and WHEREAS, this contract shall be administered on behalf of the City by its City Engineer or his duly authorized representative. The Engineer shall fully comply with any and all instructions from said City Engineer. AGREEMENT NOW, THEREFORE, the City and the Engineer, in consideration of the mutual covenants and agreements herein contained, do mutually agree as follows: The City agrees to retain the Engineer, and the Engineer agrees to provide Services in connection with the Project as defined herein, and for having rendered such Services the City agrees to pay to the Engineer fee for these Services as mutually agreed. All Services under this Contract shall be performed under the direct supervision of the City Engineer. 1. Scope of Services. A. Basic Services Parts I & II: The work tasks and activities to be performed and deliverable to be provided by the Engineer shall be in accordance with Attachment A, Scope of Services, including modifications to the Basic Services as mutually agreed to by the City and the Engineer in accordance with the provisions of this Contract. B. Additional Services Not Included In Basic Services: When mutually agreed to in writing by the City and the Engineer, the Additional Services shall be provided by the Engineer. These Additional Services are not included as a part of Basic Services and shall be paid for by the City in addition to payment for Basic Services. Should it be determined that one or more of the requirements of this Contract conflict with the requirements of the Scope of Services, including modifications to the Scope of Services or any attachments to this contract; the requirement of the Contract shall govern. 2. Progress Schedule. Within ten (10) days after receiving Notice to Proceed (NTP) the Engineer shall submit to the City a Schedule of Services consisting of a listing of the major Project tasks, the estimated consultant hours required to perform the tasks, the percentage of the Contract budget estimated to be allocated to each task and a bar chart schedule showing task beginning and completion dates. Significant milestones for the Project shall be identified. At a minimum, milestones shall be provided for the three design submittals described in Attachment A, Scope of Services: Conceptual Design Submittal, Preliminary Design Submittal, and Final Plans, Specifications, and Estimate (PS&E) Submittal. Based on Schedule of Services, the City shall compile Attachment B, Project Schedule which shall become a part of this Contract upon approval of the Engineer and the City. The Engineer shall provide to the City information to report and monitor the design tasks within the Project Schedule by completing a "Design Progress Report" on a form provided by the City. The Engineer shall complete and provide to the City said report at two week intervals. Page 2 3. Compensation. A. Basic Services Part I Fee: The Engineer shall be paid a fee for Basic Services Part I under this Contract pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Part I Fee shall not exceed the lump sum of One hundred fifty nine thousand, eight hundred dollars ($159,800.00 )provided, however, that modifications to the Basic Services Part I, or other conditions defined herein may necessitate a change of Fee which shall be reduced to writing and approved by the City or its designee. B. Basic Services Part II Fee: The Engineer should be paid a fee under this Contract for Basic Services Part II pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Part II Fee shall not exceed the lump sum of Thirty four thousand dollars ($34,000.00) provided, however, that modifications to the Basic Services Part II, or other conditions defined herein may necessitate a change of Basic Fee which shall be reduced to writing and approved by the City or its designee. C. Total Maximum Fee: Total Maximum Fee for this Contract shall be a lump sum of One hundred ninety three thousand, eight hundred dollars ($193,800.00): The lump sum Basic Services Part I Fee plus the lump sum Basic Services Part II Fee. D. Invoices: The Engineer shall submit invoices at not less than thirty (30) calendar days for Basic Services Part I and/or Basic Services Part II on or before the twenty fifth (25th) calendar day of the month, or the preceding business day if the twenty fifth occurs on a weekend and/or observed holiday. Payment shall be based on the invoices submitted to the City, provided that Services completed as indicated in the Design Progress Reports approved by the City equals or exceeds the increment percentage requested on the Engineer's invoices. Engineer's invoices to City shall provide complete information and documentation to substantiate Engineer's charges and shall be in a form to be specified by the City Engineer. Should additional documentation be requested by the City Engineer the Engineer shall comply promptly with such request. E. Payments: All payments to Engineer shall be made on the basis of the invoices submitted by the Engineer and approved by the City. Following approval of invoices, City shall endeavor to pay Engineer promptly, however, under no circumstances shall Engineer be entitled to receive interest on amounts due. The City, in compliance with Texas State law, shall process a maximum of one payment to the Engineer per month. City reserves the right to correct any error that may be discovered in any invoice whether paid to the Engineer or not, and to withhold the funds requested by the Engineer relative to the error. Page 3 4. Fee Increases. Any other provision in this Contract notwithstanding, it is specifically understood and agreed that the Engineer shall not be authorized to undertake any Services pursuant to this Contract requiring the payment of any fee, expense or reimbursement in addition to the fees stipulated in Article 3 of this Contract, without having first obtained specific written authorization from the City. The written authorization for additional Services shall be in the form of a Modification to the Scope of Services approved by the City Engineer and/or the City Council, if required. 5. Modifications to the Scope of Services. Either the Engineer or the City Engineer may initiate a written request for a Modification to the Scope of Services when in the opinion of the requesting Party, the needs and conditions of the Project warrant a modification. Upon the receipt of a request by either Party, the Engineer and the City Engineer shall review the conditions associated with the request and determine the necessity of a modification. When the Parties agree that a modification is warranted, the Engineer and the City Engineer shall negotiate the specific modification(s) and any changes in the Total Maximum Fee or Project Schedule resulting from the modification(s). Approval of a modification shall be in the form of a written Modification to the Scope of Services which clearly defines the changes to the previously approved Scope of Services, Fee and/or Project Schedule. Said written Modification shall be approved by Engineer, authorized by the City Council, if required, and issued by the City Engineer. Issuance of the approved Scope of Services modification shall constitute a notice to proceed with the Project in accordance with the modified Scope of Services. The City Engineer may issue written Modifications to the Scope of Services without prior approval of the City Council when the modifications are to be accomplished within the authorized Total Maximum Fee and do not materially or substantively alter the overall scope of the Project, the Project Schedule or the Services provided by the Engineer. 6. Project Deliverables. For each submittal identified in Attachment A, Scope of Services, the Engineer shall provide the City with one set of reproducibles, one set of bluelines or hard copy and electronic media of the submittal documents. For any required environmental assessment, the Engineer shall provide one set of draft and one set of final Environmental Reports. The Environmental Reports shall be submitted as original reproducibles and on electronic media. The electronic file may omit photographs and government prepared maps. If photographs are included in the report they shall be taken with a 35 mm camera or larger format camera. Color laser copies may be substituted for the original photographs in the final report. A transmittal letter shall be included with the Environmental Reports and shall include an executive summary outlining: a.) Findings of the Reports; b.) Conclusions; c.) Recommendations; and d.) Mitigation/remediation cost estimates. Page 4 7. Project Control. It is understood and agreed that all Services shall be performed under the administrative direction of the City Engineer. No Services shall be performed under this Contract until a written Notice to Proceed is issued to the Engineer by the City Engineer. In addition, the Engineer shall not proceed with any Services after the completion and delivery to the City of the Conceptual Design Submittal, Preliminary Design Submittal, or the Final PS&E Submittal as described in the Basic Services without written instruction from the City. The Engineer shall not be compensated for any Services performed after the said submittals and before receipt of City's written instruction to proceed. 8. Partnering. The City shall encourage participation in a partnering process that involves the City, Engineer and his or her sub-consultants, and other supporting jurisdictions and/or agencies. This partnering relationship shall begin at the Pre-Design Meeting and continue for the duration of this Contract. By engaging in partnering, the parties do not intend to create a legal partnership, to create additional contractual relationships, or to in any way alter the legal relationship which otherwise exists between the City and the Engineer. The partnering effort shall be structured to draw on the strengths of each organization to identify and achieve reciprocal goals. The objectives of partnering are effective and efficient contract performance and completion of the Project within budget, on schedule, in accordance with the Scope of Services, and without litigation. Participation in partnering shall be totally voluntary and all participants shall have equal status. 9. Disputes. The City Engineer shall act as referee in all disputes under the terms of this Contract between the Parties hereto. In the event the City Engineer and the Engineer are unable to reach acceptable resolution of disputes concerning the Scope of Services to be performed under this Contract, the City and the Engineer shall negotiate in good faith toward resolving such disputes. The City Engineer may present unresolved disputes arising under the terms of this Contract to the City Manager or designee. The decision of the City Manager or designee shall be final and binding. An irreconcilable or unresolved dispute shall be considered a violation or breach of contract terms by the Engineer and shall be grounds for termination. Any increased cost incurred by the City arising from such termination shall be paid by the Engineer. 10. Engineer's Seal. The Engineer shall place his Texas Professional Engineers seal on all engineering documents and engineering data prepared under the supervision of the Engineer in the performance of this Contract. 11. Liability. Approval of the Plans, Specifications, and Estimate (PS&E) by the City shall not constitute nor be deemed a release of the responsibility and liability of Engineer, its employees, subcontractors, agents and consultants for the accuracy and competency of their designs, working drawings, tracings, magnetic media and/or computer disks, estimates, specifications, investigations, studies or other documents and work; nor shall such approval be deemed to be an assumption of such responsibility by the City for any Page 5 defect, error or omission in the design, working drawings, tracings, magnetic media and/or computer disks, estimates specifications, investigations, studies or other documents prepared by Engineer, its employees, subcontractors, agents and consultants. Engineer shall indemnify City for damages resulting from such defects, errors or omissions and shall secure, pay for and maintain in force during the term of this Contract sufficient errors and omissions insurance in the amount of $250,000.00 single limit, with certificates evidencing such coverage to be provided to the City. The redesign of any defective work shall be the sole responsibility and expense of the Engineer. Any work constructed, found to be in error because of the Engineer's design, shall be removed, replaced, corrected or otherwise resolved at the sole responsibility and expense of the Engineer. The parties further agree that this liability provision shall meet the requirements of the express negligence rule adopted by the Texas Supreme Court and hereby specifically agree that this provision is conspicuous. �� !a r -VIA, / 12. Indemnification. Engineer shall indemnify/ hold harmless and-defer the City of Coppell, its officers, agents and employees from any loss, damage, liability or expense, including attorney fees, on account of damage to property and injuries, including death, to all persons, including employees of En n erg any associate consultant, which may arise from errors, omissions or negligent act5on`the part of Engineer, its employees, agents, �p�' consultants or subcontractors, in performance of this Contract, or any breach of any �� obligation under this Contract. It is further understood that it is not the intention of the parties hereto to create liability for the benefit of third parties, but that this agreement shall be solely for the benefit of the parties hereto and shall not create or grant any rights, contractual or otherwise to any person or entity. The parties further agree that this indemnification provision shall meet the requirements of the express negligence rule adopted by the Texas Supreme Court and hereby specifically agree that this provision is conspicuous. 13. Delays and Failure to Perform. Engineer understands and agrees that time is of the essence and that any failure of the Engineer to complete the Services of this Contract within the agreed Project Schedule shall constitute material breach of this Contract. The Engineer shall be fully responsible for its delays or for failures to use diligent effort in accordance with the terms of this Contract. Where damage is caused to the City due to the Engineer's failure to perform in these circumstances, the City may withhold, to the extent of such damage, Engineer's payments hereunder without waiver of any of City's additional legal rights or remedies. The Engineer shall not be responsible for delays associated with review periods by the City in excess of the agreed Project Schedule. 14. Termination of Contract. It is agreed that the City or the Engineer may cancel or terminate this Contract for convenience upon fifteen (15) days written notice to the other. Immediately upon receipt of notice of such cancellation from either party to the other, all Services being performed under this Contract shall immediately cease. Pending fmal determination at the end of such fifteen-day period, the Engineer shall be compensated on Page 6 the basis of the percentage of Services provided prior to the receipt of notice of such termination and indicated in the final Design Progress Report submitted by the Engineer and approved by the City. 15. Personnel Qualifications. Engineer warrants to the City that all Services provided by Engineer in the performance of this Contract shall be provided by personnel who are appropriately licensed or certified as required by law, and who are competent and qualified in their respective trades or professions. 16. Quality Control. The Engineer agrees to maintain written quality control procedures. The Engineer further agrees to follow those procedures to the extent that, in the Engineer's judgment, the procedures are appropriate under the circumstances. 17. Ownership. All Engineer's designs and work product under this Contract, including but not limited to tracings, drawings, electronic or magnetic media and/or computer disks, estimates, specifications, investigations, studies and other documents, completed or partially completed, shall be the property of the City to be used as City desires, without restriction; and Engineer specifically waives and releases any proprietary rights or ownership claims therein and is relieved of liability connected with any future use by City. Copies may be retained by Engineer. Engineer shall be liable to City for any loss or damage to such documents while they are in the possession of or while being worked upon by the Engineer or anyone connected with the Engineer, including agents, employees, consultants or subcontractors. All documents so lost or damaged while they are in the possession of or while being worked upon by the Engineer shall be replaced or restored by Engineer without cost to the City. 18. Project Records and Right to Audit. The Engineer shall keep, retain and safeguard all records relating to this Contract or work performed hereunder for a minimum period of three (3) years following the Project completion, with full access allowed to authorized representatives of the City upon request for purposes of evaluating compliance with provisions of this Contract. Should the City Engineer determine it necessary, Engineer shall make all its records and books related to this Contract available to City for inspection and auditing purposes. 19. Non-Discrimination. As a condition of this Contract, the Engineer shall take all necessary action to ensure that, in connection with any work under this Contract it shall not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex or physical impairment unrelated to experience, qualifications or job performance, either directly, indirectly or through contractual or other arrangements. 20. Gratuities. City of Coppell policy mandates that employees shall never, under any circumstances, seek or accept, directly or indirectly from any individual doing or seeking Page 7 to do business with the City of Coppell, loans, services, payments, entertainment, trips, money in any amount, or gifts of any kind. 21. No Waiver. No action or failure to act on the part of either Party at any time to exercise any rights or remedies pursuant to this Contract shall be a waiver on the part of that Party of any of its rights or remedies at law or contract. 22. Compliance with Laws. The Engineer shall comply with all Federal, State and local laws, statutes, City Ordinances, rules and regulations, and the orders and decrees of any courts, or administrative bodies or tribunal in any matter affecting the performance of this Contract, including without limitation, worker's compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When required, Engineer shall furnish the City with satisfactory proof of compliance therewith. 23. Severability. In case one or more of the provisions contained in this Contract shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 24. Venue. With respect to any and all litigation or claims, the laws of the State of Texas shall apply and venue shall reside in Dallas County. 25. Prior Negotiations. This Contract supersedes any and all prior understandings and agreement by and between the Parties with respect to the terms of this Contract and the negotiations preceding execution of this Contract. 26. Contacts. The Engineer shall direct all inquiries from any third party regarding information relating to this Contract to the City Engineer. Page 8 27. Notification. All notices to either Party by the other required under this Contract shall be delivered personally or sent by certified U.S. mail, postage prepaid, addressed to such Party at the following respective addresses: City: City of Coppell, Texas r— Engineer: �/'e��c £\\ II se'r- s,;CNC. 1764 r+l\ Co!UYi IN WITNESS WHEREOF, the City of Coppell, Texas and the Engineer has caused these presents to be executed by duly authorized representatives on the day and year set forth above. Iv THE CITY OF COPPELL ENGINE BY: BY: in?-1,1)11f- e Ci anager Name &Title 7( 2 Date: -�d �L Date: S ( ATTEST: ATTEST: ,o10 A _ (4/1^ C (CORPORATE SEAL) Page 9 ATTACHMENT "A" DESIGN PHASE SERVICES The project consists of the final design and preparation of plans and specifications for the new spillway at the North Lake Dam to lower the uncontrolled spillway level from the current 510 to elevation 485. Primary components of the constructed project will consist of: 1. Drop inlet box approximately 10 x 10 x 10. 2. Approximately 500 to 600 LF of 5' x 5' reinforced concrete conduit, either placed in a cut and cover procedure or tunneled. 3. Reinforced concrete headwall for the outlet of the pipe and transition to the existing chute and stilling basin. 4. Associated grading and erosion protection such as rock riprap and grassing. 5. Removal of appropriate portions of the existing spillway. The design will be based on mapping information and services provided by others. Environmental permitting will be covered under a separate agreement. Efforts will include project management and monthly status reports will be provided. I. Gather and review existing information that may be available or provided, including: a. Geotechnical and geologic data and mapping b. Available mapping c. Soils reports for the watershed d. Texas Commission on Environmental Quality (TCEQ) dam safety rules and regulations 2. Visit the project site to familiarize the project team with the dam and surrounding area. 3. Perform additional geotechnical investigations at the dam, with up to 4 borings, as shown in the attached Figure "A", which would include one at the inlet, two along the pipeline alignment, and one for the outlet structure. Lengths will vary from 35 to 70 feet. a. Subcontract with a drilling contractor to drill the borings at the proposed locations. The borings will be drilled with either continuous flight or hollow-stem augers. Obtain soil samples for laboratory testing using thin-walled sampler tubes in fine- grained soils, perform Standard Penetration Tests in coarse-grained soils to obtain samples and perform cone penetrometer tests on rock in the field. Backfill borings with cement-bentonite grout and plug the upper foot of each boring with concrete sack mix to prevent a tripping hazard. b. Provide an engineer or geologist experienced in logging borings to direct the drilling, log the borings, record the blow counts from the cone penetrometer tests and handle the samples. c. Select samples for laboratory testing, assign tests, deliver samples to a subcontract laboratory selected by FNI, and review test results. Tests expected include Page 10 classification tests (liquid and plastic limits and percent passing the #200 Sieve), unit dry weight/moisture contents and strength tests (unconfined compression tests, unconsolidated-undrained tests and CU triaxial tests). 4. Update the hydrologic hydraulic analyses from the preliminary phase for flood routing and spillway sizing according to TCEQ requirements given the final alignment and configuration. 5. Perform analyses to demonstrate adequate safety factors as required by TCEQ for the following conditions: a. Excavation slope stability 1. During construction (interim condition) b. Appurtenant structural stability of principal spillway and outlet works 6. Develop 30% design level plans and technical specifications for the structure. 7. Prepare a 30% design level estimate of probable construction cost for the structure. 8. Coordinate with the design efforts of other improvements on the property, including the attendance at up to four project meetings with the project team and/or Owner. 9. Provide drawings and information to the City of Dallas for their review and approval. Any fees for City permitting will be paid by the City of Coppell. 10. Develop 95% design level plans, specifications, and contract documents for the structure. Furnish OWNER three (3) copies of drawings and technical specifications, and bid documents marked "Preliminary" for approval by OWNER. Upon final approval by OWNER, FNI will provide OWNER ten (10) sets of Final plans and specifications to the OWNER for use in the bidding process. 11. Prepare a submittal package for the improvements for the TCEQ. The submittal package will include: a) the final plans and specifications, b) a design report addressing the investigations, methodologies, and assumptions in developing the design, and c) any application forms required by the TCEQ. Address review comments by the TCEQ, as necessary, to obtain approvals. 12. Prepare an opinion of probable construction cost for the improvements. 13. Upon completion of the design services and approval of final drawings and contract documents by OWNER, FNI will assist OWNER in securing bids. The cost for notifying construction news publications and publishing appropriate legal notice publications shall be paid by OWNER. OWNER will be responsible for obtaining, coordinating, and negotiating bids. a. Assist Owner by responding to questions and interpreting bid documents. Prepare and issue addenda to the bid documents to plan holders if necessary. b. At OWNER request, FNI will assist OWNER in reviewing the qualifications 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. c. Assist OWNER in the preparation of Construction Contract Documents. Provide 10 sets of Construction Contract Documents which include information from the Page 11 selected contractor, bid documents, legal documents, and addenda bound in the documents for execution by the OWNER and construction contractor. 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. CONSTRUCTION PHASE SERVICES Upon completion of the negotiation 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 FM 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 FNI standard General Conditions for construction projects. Modifications to these services required by use of other general conditions or contract administration procedures would be an additional service. If general conditions other than FNI standards are used, the OWNER agrees to include provisions in the construction contract documents that will require the construction contractor to include FNI on this project to be listed as an additional insured on contractor's insurance policies. 1. Upon request of the OWNER, furnish the services of a Resident Project Representative to act as OWNER's on-site representative during the Construction Phase. The Resident Project Representative will act as directed by FNI in order to provide more extensive representation at the Project site during the Construction Phase. Through more extensive on-site observations of the work in progress and field checks of materials and equipment by the Resident Project Representative and assistants, FNI shall endeavor to provide further protection for OWNER against defects and deficiencies in the work. The compensation associated with providing a Resident Project Representative is not included in this authorization and will be negotiated in a separate contract amendment. 2. Assist OWNER in conducting pre-construction conference(s) with the Contractor(s), review construction schedules prepared by the Contractor(s) 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 Contractor. 3. Establish communication procedures with the OWNER and contractor. Submit (insert frequency; i.e. monthly, bi-monthly, quarterly, etc)reports of construction progress. Reports will describe construction progress in general terms and summarize project costs, cash flow, construction schedule and pending and approved contract modifications. Page 12 4. Establish and maintain a project documentation system consistent with the requirements of the construction contract documents. Monitor the processing of contractor's submittals and provide for filing and retrieval of project documentation. Produce monthly reports indicating the status of all submittals in the review process. 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. 5. 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 recommends Contractor be paid on monthly and final estimates, pursuant to the General Conditions of the Construction Contract. 6. Make up to twelve (12) visits appropriate to the stage of construction to the site (as distinguished from the continuous services of a Resident Project Representative)to observe the progress and the quality of work and to attempt to determine in general if the work is proceeding in accordance with the Construction Contract Documents. In this effort FNI will endeavor to protect the OWNER against defects and deficiencies in the work of Contractors and will report any observed deficiencies to OWNER. The number of site visits for projects will be included in the Task Authorizations. Visits to the site in excess of the specified number are an additional service. 7. Notify the contractor of non-conforming 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. 8. Coordinate the work of testing laboratories and inspection bureaus required for the testing or inspection of materials, witnessed tests, factory testing, etc. for quality control of the Project. The cost of such quality control shall be paid by OWNER and is not included in the services to be performed by FNI. 9. 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. 10. 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. 11. Prepare documentation for contract modifications required to implement modifications in the design of the project. Make recommendations to the OWNER on the Page 13 merit and value of the claim on the basis of information submitted by the contractor or available in project documentation. 12. Assist in the transfer of and acceptance by the construction contractor of any Owner furnished equipment or materials. 13. 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 final payment. Assist the City in obtaining legal releases, permits, warranties, spare parts, and keys from the contractor. Review and comment on the certificate of completion and the recommendation for final payment to the Contractor(s). Visiting the site to review completed work in excess of two trips are an additional service. 14. 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. ARTICLE II ADDITIONAL SERVICES: Additional Services to be performed by FNI, if authorized by OWNER, which are not included in the above described basic services, are described as follows: 1. Preparation of CLOMR and LOMR permit applications are assumed to be performed by the developer but can be performed as an additional service, if needed. 2. Investigations of existing conditions or facilities, or to make measured drawings thereof, or to verify the accuracy of drawings or other information furnished by OWNER. 3. Assisting OWNER in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and/or administrative proceedings in the defense or prosecution of claims disputes with Contractor(s). 4. Performing investigations, studies and analyses of substitutions of equipment and/or materials or deviations from the drawings and specifications. 5. Assisting OWNER in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this AGREEMENT. Such services, if any, shall be furnished by FNI on a fee basis negotiated by the respective parties outside of and in addition to this AGREEMENT. 6. Assisting the OWNER with any hearings or public meetings that may be needed as part of the dam safety permitting process. 7. 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. 8. Performing investigations, studies, and analysis of work proposed by construction contractors to correct defective work. 9. Design, contract modifications, studies or analysis required to comply with local, State, Federal or other regulatory agencies that become effective after the date of this Page 14 agreement. 10. Services required to resolve bid protests or to rebid the projects for any reason. 11. 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. 12. 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. 13. Providing services after the completion of the construction phase not specifically listed in Article I. 14. Providing basic or additional services on a time schedule accelerated from that stipulated in Article III. 15. Providing services made necessary because of unforeseen, concealed, or differing site conditions or due to the presence of hazardous substances in any form that could not have reasonably been anticipated by FNI. 16. Providing services to review, evaluate, or negotiate a settlement of a construction contractor(s) claim(s), provided said claims are supported by causes not within the control of FNI. 17. Providing value engineering studies or reviews of cost savings proposed by construction contractors after bids have been submitted. 18. Provide follow-up professional services during Contractor's warranty period for issues not related to the design services provided by FNI. 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: Phase 1 — Design: 30% design documents are to be submitted within 120 days from date of execution of this contract. 95% design submittals are to be submitted for review within 90 days of receipt of comments on the 30% set. Negotiation phase services will be based on the Owner's schedule. The EAP and O&M manual will be completed prior to submittal of the design package to TCEQ. Phase 2 — Construction: Schedule is to be based on the construction schedule negotiated with the Contractor. If FNI's services are delayed or extended 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. These delays may result in an adjustment to compensation as outlined on the face of this AGREEMENT. ARTICLE IV Page 15 COMPENSATION: Compensation to FNI for the Basic Services, Design Phase, shall be the lump sum of$159,800 for the design and $34,000 for the geotechnical exploration (task 3), for a total of $193,800. Construction Phase services shall be added by addendum. If FNI sees the Scope of Services changing so that additional services are needed, including but not limited to those services described as Additional Services, FNI will notify OWNER for OWNER's approval before proceeding. Additional Services shall be computed based on a negotiated lump sum. 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