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HomeMy WebLinkAboutContract 43790 Cff Y SE(XffARY!p0 CONTRACT Noe CITY of FORT WORTH, TEXAS STANDARD AGREEMENT FOR ENGINEERING RELATED DESIGN SERVICES This AGREEMENT is between the City of Fort Worth, a Texas home-rule municipality (the "CITY"), and MJ Thomas Engineering, LLC, authorized to do business in Texas, (the "ENGINEER"), for a PROJECT generally described as: Quanah Parker Park Drainage Improvements. Article I Scope of Services A. The Scope of Services is set forth in Attachment A. Article II Compensation A. The ENGINEER's compensation shall be $9,300.00 as set forth in Attachment B. Article III Terms of Payment Payments to the ENGINEER will be made as follows: A. Invoice and Payment (1) The Engineer shall provide the City sufficient documentation, including but not limited to meeting the requirements set forth in Attachment D to this AGREEMENT, to reasonably substantiate the invoices. (2) The ENGINEER will issue monthly invoices for all work performed under this AGREEMENT. Invoices are due and payable within 30 days of receipt. (3) Upon completion of services enumerated in Article I, the final payment of any balance will be due within 30 days of receipt of the final invoice. City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08/09/2012 OFFICIAL.RECORD Page 1 of 16 CITY SECRETARY Fr. WORTH, Tx � Eno (4) In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. (5) If the CITY fails to make payment in full to ENGINEER for billings contested in good faith within 60 days of the amount due, the ENGINEER may, after giving 7 days' written notice to CITY, suspend services under this AGREEMENT until paid in full. In the event of suspension of services, the ENGINEER shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. Article IV obligations of the Engineer Amendments to Article IV, if any, are included in Attachment C. A. General The ENGINEER will serve as the CITY's professional engineering representative under this Agreement, providing professional engineering consultation and advice and furnishing customary services incidental thereto. B. Standard of care The standard of care applicable to the ENGINEER's services will be the degree of skill and diligence normally employed in the State of Texas by professional engineers or consultants performing the same or similar services at the time such services are performed. C. Subsurface Investigations (1) The ENGINEER shall advise the CITY with regard to the necessity for subcontract work such as special surveys, tests, test borings, or other subsurface investigations in connection with design and engineering work to be performed hereunder. The ENGINEER shall also advise the CITY concerning the results of same. Such surveys, tests, and investigations shall be furnished by the CITY, unless otherwise specified in Attachment A. City of Fort worth,Texas Standard Agreement for Engineering Related Design Services PMO Official Release Date:08/09/2012 Page 2 of 16 (2) In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect the total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the ENGINEER. D. Preparation of Engineering Drawings The ENGINEER will provide to the CITY the original drawings of all plans in ink on reproducible mylar sheets and electronic files in .pdf format, or as otherwise approved by CITY, which shall become the property of the CITY. CITY may use such drawings in any manner it desires; provided, however, that the ENGINEER shall not be liable for the use of such drawings for any project other than the PROJECT described herein. E. Engineer's Personnel at Construction Site (1) The presence or duties of the ENGINEER's personnel at a construction site, whether as on-site representatives or otherwise, do not make the ENGINEER or its personnel in any way responsible for those duties that belong to the CITY and/or the CITY's construction contractors or other entities, and do not relieve the construction contractors or any other entity of their obligations, duties, and responsibilities, including, but not limited to, all construction methods, means, techniques, sequences, and procedures necessary for coordinating and completing all portions of the construction work in accordance with the Contract Documents and any health or safety precautions required by such construction work. The ENGINEER and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. (2) Except to the extent of specific site visits expressly detailed and set forth in Attachment A, the ENGINEER or its personnel shall have no obligation or responsibility to visit the construction site to become familiar with the progress or quality of the completed work on the PROJECT or to determine, in general, if the work on the PROJECT is being performed in a manner indicating that the PROJECT, when completed, will be in accordance with the Contract Documents, nor shall anything in the Contract Documents or the agreement between CITY and ENGINEER be construed as requiring City of Fort Worth,Texas Standard Agreement for Engineering Reiated Design Services PMO Official Release Date:08/09/2012 Page 3of16 ENGINEER to make exhaustive or continuous on-site inspections to discover latent defects in the work or otherwise check the quality or quantity of the work on the PROJECT. If the ENGINEER makes on-site observation(s) of a deviation from the Contract Documents, the ENGINEER shall inform the CITY. (3) When professional certification of performance or characteristics of materials, systems or equipment is reasonably required to perform the services set forth in the Scope of Services, the ENGINEER shall be entitled to rely upon such certification to establish materials, systems or equipment and performance criteria to be required in the Contract Documents. F. opinions of Probable Cost, Financial Considerations, and schedules (1) The ENGINEER shall provide opinions of probable costs based on the current available information at the time of preparation, in accordance with Attachment A. (2) In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the PROJECT, the ENGINEER has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures and market conditions; time or quality of performance by third parties; quality, type, management, or direction of operating personnel; and other economic and operational factors that may materially affect the ultimate PROJECT cost or schedule. Therefore, the ENGINEER makes no warranty that the CITY's actual PROJECT costs, financial aspects, economic feasibility, or schedules will not vary from the ENG I N EER's opinions, analyses, projections, or estimates. G. construction Progress Payments Recommendations by the ENGINEER to -the CITY for periodic construction progress payments to the construction contractor will be based on the ENGINEER's knowledge, information, and belief from selective sampling and observation that the work has progressed to the point indicated. Such recommendations do not represent that continuous or detailed examinations have been made by the ENGINEER to ascertain that the construction contractor has completed the work in exact accordance with the Contract Documents; that the final work will be acceptable in all respects; that the ENGINEER has made an examination to ascertain how or for what purpose the construction contractor has used the moneys paid; that title to any of the work, materials, or equipment has passed to the CITY free and clear of liens, claims, security interests, or encumbrances; or that there are not other City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08/09/2012 Page 4 of 16 matters at issue between the CITY and the construction contractor that affect the amount that should be paid. He Record Drawings Record drawings, if required, will be prepared, in part, on the basis of information compiled and furnished by others, and may not always represent the exact location, type of various components, or exact manner in which the PROJECT was finally constructed. The ENGINEER is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. i. Minority Business and Small Business Enterprise (MBE)(SBE) Participation In accord with the City of Fort Worth Business Diversity Ordinance No. 20020-12-2011, as amended, the City has goals for the participation of minority business enterprises and/or small business enterprises in City contracts. Engineer acknowledges the MBE and SBE goals established for this contract and its accepted written commitment to MBE and SBE participation. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Engineer may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. J. Right to Audit (1) ENGINEER agrees that the CITY shall, until the expiration of five (5) years after final payment tinder this contract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of the ENGINEER involving transactions relating to this contract. ENGINEER agrees that the CITY shall have access during normal working hours to all necessary ENGINEER facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The CITY shall give ENGINEER reasonable advance notice of intended audits. (2) ENGINEER further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant agrees that the CITY shall, until the expiration of five (5) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all subconsultant City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08109/2012 Page 5 of 16 facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article together with subsection (3) hereof. CITY shall give subconsultant reasonable advance notice of intended audits. (3) ENGINEER and subconsultant agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse ENGINEER for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. K. INSURANCE (1) ENGINEER'S INSURANCE a. Commercial General Liability -- the ENGINEER shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000.00 per each occurrence with a $2,000,000.00 aggregate. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this PROJECT or location. i. The CITY shall be included as an insured under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the CITY. The Commercial General Liability insurance policy shall have no exclusions by endorsements that would alter or nullify: p rem isesloperations, productslcompleted operations, contractual, personal injury, or advertizing injury, which are normally contained within the policy, unless the CITY approves such exclusions in writing. ii. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with this agreement. b. Business Auto — the ENGINEER shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of "any auto", including owned, hired, and non-owned autos, when said vehicle is used in the course of the PROJECT. If the engineer owns no vehicles, coverage for hired or non-owned is City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08/09/2012 Page 6 of 16 acceptable. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by ENGINEER pursuant to this agreement or under any applicable auto physical damage coverage. c. Workers' Compensation —ENGINEER shall maintain workers compensation and employers liability insurance and, if necessary, commercial umbrella liability insurance with a limit of not less than $1 00,000.00 each accident for bodily injury by accident or $1 00,000.00 each employee for bodily injury by disease, with $500,000.00 policy limit. i. ENGINEER waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer's liability or commercial umbrella insurance obtained by ENGINEER pursuant to this agreement. d. Professional Liability — the ENGINEER shall maintain professional liability, a claims-made policy, with a minimum of $1,000,000.00 per claim and aggregate. The policy shall contain a retroactive date prior to the date of the contract or the first date of services to be performed, whichever is earlier. Coverage shall be maintained for a period of 5 years following the completion of the contract. An annual certificate of insurance specifically referencing this project shall be submitted to the CITY for each year following completion of the contract. (2) GENERAL INSURANCE REQUIREMENTS a. certificates of insurance evidencing that the ENGINEER has obtained all required insurance shall be delivered to the CITY prior to ENGINEER proceeding with the PROJECT. b. Applicable policies shall be endorsed to name the CITY an Additional Insured thereon, as its interests may appear. The term CITY shall include its employees, officers, officials, agents, and volunteers as respects the contracted services. c. Certificate(s) of insurance shall document that insurance coverage specified in this agreement are provided under applicable policies documented thereon. City of Fort worth,Texas Standard Agreement for Engineering Related Design Services PMO Official Release Date:08109/2012 Page 7 of 16 d. Any failure on part of the CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements. e. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the respective Department Director (by name), City of Fort Worth, 1 000 Throckmorton, Fort Worth, Texas 75102. f. Insurers for all policies must be authorized to do business in the State of Texas and have a minimum rating of A:V or greater, in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. g. Any deductible or self insured retention in excess of $25,000.00 that would change or alter the requirements herein is subject to approval by the CITY in writing, if coverage is not provided on a first-dollar basis. The CITY, at it sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or betters of credit may also be acceptable to the CITY. h. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. i. The CITY shall be entitled, upon its request and without incurring expense, to review the ENGINEER's insurance policies including endorsements thereto and, at the CITY`s discretion; the ENGINEER may be required to provide proof of insurance premium payments. j. Lines of coverage, other than Professional Liability, underwritten on a claims-made basis, shall contain a retroactive date coincident with or prior to the date of the contractual agreement. The certificate of insurance shall state both the retroactive date and that the coverage is claims-made. k. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption nor restrictive modification or charges from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. 1. The CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. City of Fort worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08/09/2012 Page 8 of 16 m. Sub consultants and subcontractors to/of the ENGINEER shall be required by the ENGINEER to maintain the same or reasonably equivalent insurance coverage as required for the ENGINEER. When sub consultants/subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a certificate of insurance. L. Independent Consultant The ENGINEER agrees to perform all services as an independent consultant and not as a subcontractor, agent, or employee of the CITY. M. Disclosure The ENGINEER acknowledges to the CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed PROJECT and business relationships with abutting property cities. The ENGINEER further acknowledges that it will make disclosure in writing of any conflicts of interest that develop subsequent to the signing of this contract and prior to final payment under the contract. N. Asbestos or Hazardous Substances (1) If asbestos or hazardous substances in any form are encountered or suspected, the ENGINEER will stop its own work in the affected portions of the PROJECT to permit testing and evaluation. (2) If asbestos or other hazardous substances are suspected, the CITY may request the ENGINEER to assist in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. o. Permitting Authorities - Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which the ENGINEER should have been aware of at the time this Agreement was executed, the ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards criteria which are published after the date of this Agreement which the ENGINEER could not have been reasonably aware of, the ENGINEER shall notify the CITY of such changes and an adjustment in compensation will be made through an City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:081�912Qi 2 amendment to this AGREEMENT. P. Schedule ENGINEER shall manage the PROJECT in accordance with the schedule developed per Attachment D to this AGREEMENT. Article V Obligations of the City Amendments to Article V, if any, are included in Attachment C. A. City-Furnished Data ENGINEER may rely upon the accuracy, timeliness, and completeness of the information provided by the CITY. B. Access to Facilities and Property The CITY will make its facilities accessible to the ENGINEER as required for the ENGI N EER's performance of its services. The CITY will perform, at no cost to the ENGINEER, such tests of equipment, machinery, pipelines, and other components of the CITY's facilities as may be required in connection with the ENGI N EER's services. The CITY will be responsible for all acts of the CITY's personnel. C, Advertisements, Permits, and Access Unless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange, and pay for all advertisements for bids; permits and licenses required by local, state, or federal authorities; and land, easements, rights- of-way, and access necessary for the ENGINEER's services or PROJECT construction. City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMo Official Release Date:08/09/2012 Page 10 of 16 D. Timely Review The CITY will examine the ENGINEER's studies, reports, sketches= drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with -the project schedule prepared in accordance with Attachment D. E. Prompt Notice The CITY will give prompt written notice to the ENGINEER whenever CITY observes or becomes aware of any development that affects the scope or timing of the ENGINEER's services or of any defect in the work of the ENGINEER or construction contractors. F. Asbestos or Hazardous Substances Release. (1) CITY acknowledges ENGINEER will perform part of the work at CITY's facilities that may contain hazardous materials, including asbestos containing materials, or conditions, and that ENGINEER had no prior role in the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of City, City hereby releases ENGINEER from any damage or liability related to the presence of such materials. (2) The release required above shall not apply in the event the discharge, release or escape of hazardous substances, contaminants, or asbestos is a result of ENGINEER's negligence or if ENGINEER brings such hazardous substance, contaminant or asbestos onto the project. G. contractor Indemnification and claims The CITY agrees to include in all construction contracts the provisions of Article IV.E. regarding the ENGINEER's Personnel at Construction Site, and provisions providing contractor indemnification of the CITY and the ENGINEER for con-tractor's negligence. H. contractor claims and Third-Party Beneficiaries (1) "rhe CITY agrees to include the following clause in all contracts with construction contractors and equipment or materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMo official Release Date:08/09/2012 Page 11 of 16 no direct action against the ENGINEER, its officers, employees, and subcontractors, for any claim arising out of, in connection with, or resulting from the engineering services performed. Only the CITY will be the beneficiary of any undertaking by the ENGINEER." (2) This AGREEMENT gives no rights or benefits to anyone other than the CITY and the ENGINEER and there are no third-party beneficiaries. (3) The CITY will include in each agreement it enters into with any other entity or person regarding the PROJECT a provision that such entity or person shall have no third-party beneficiary rights under this Agreement. (4) Nothing contained in this section V.H. shall be construed as a waiver of any right the CITY has to bring a claim against ENGINEER. I. CITY's Insurance (1) The CITY may maintain property insurance on certain pre-existing structures associated with the PROJECT. (2) The CITY will ensure that Builders Risk/Installation insurance is maintained at the replacement cost value of the PROJECT. The CITY may provide ENGINEER a copy of the policy or documentation of such on a certificate of insurance. (3) The CITY will specify that the Builders Risk/Installation insurance shall be Comprehensive in coverage appropriate to the PROJECT risks. J. Litigation Assistance The Scope of Services does not include costs of the ENGINEER for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the CITY. In the event CITY requests such services of the ENGINEER, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties. K. changes The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the ENGINEER's cost of or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate CITY approval. City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO Official Release Date:08109/2012 Page 12 of 15 Article VI General Legal Provisions Amendments to Article VI, if any, are included in Attachment C. A. Authorization to Proceed ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the ENGINEER, whether in hard copy or in electronic form, are instruments of service for this PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by the CITY or by others acting through or on behalf of the CITY of any such instruments of service without the written permission of the ENGINEER will be at the C ITY's sole risk. The CITY shall own the final designs, drawings, specifications and documents. C. Force Majeure The ENGINEER is not responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the ENGINEER that prevent ENGINEER's performance of its obligations hereunder. D. Termination (1) This AGREEMENT may be terminated only by the City for convenience on 30 days' written notice. This AGREEMENT may be terminated by either the CITY or the ENGINEER for cause if either party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with in 5 days of written notice and diligently complete the correction thereafter. (2) If this AGREEMENT is terminated for the convenience of the City, the ENGINEER will be paid for termination expenses as follows: a.) Cost of reproduction of partial or complete studies, plans, specifications or other forms of ENGINEER'S work product; City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08/09/2012 Page 13 of 16 b.} out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; c.} The time requirements for the ENGINEER'S personnel to document the work underway at the time of the CITY'S termination for convenience so that the work effort is suitable for long time storage. (3) Prior to proceeding with termination services, the ENGINEER will submit to the CITY an itemized statement of all termination expenses. The CITY'S approval will be obtained in writing prior to proceeding with termination services. E. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the services of the ENGINEER for the convenience of the CITY. In the event of such suspension, delay, or interruption, an equitable adjustment in the PROJECT's schedule, commitment and cost of the ENGINEER's personnel and subcontractors, and ENGINEER's compensation will be made. F. Indemnification In accordance with Texas Local Government Code Section 271.904, the ENGINEER shall indemnify, hold harmless, and defend the CITY against liability for any damage caused by or resulting from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the ENGINEER or ENGINEER's agent, consultant under contract, or another entity over which the ENGINEER exercises control. G. Assignment Neither party shall assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Interpretation Limitations on liability and indemnities in this AGREEMENT are business understandings between the parties and shall apply to all the different theories of recovery, including breach of contract or warranty, tort including negligence, strict or statutory liability, or any other cause of action, except for willful misconduct or gross negligence for limitations of liability and sole negligence for indemnification. Parties mean the CITY and the ENGINEER, and their officers, employees, agents, and subcontractors. City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08/09/2012 Page 14 of 16 I. Jurisdiction The law of the State of Texas shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. The venue for any litigation related to this AGREEMENT shall be Tarrant County, Texas. J. Severability and Survival If any of the provisions contained in this AGREEMENT are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Articles U.F., VI.B., VI.D., VI.F., VI.H., and VI.I. shall survive termination of this AGREEMENT for any cause. K. observe and Comply ENGINEER shall at all times observe and comply with all federal and State laws and regulations and with all City ordinances and regulations which in any way affect this AGREEMENT and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. ENGINEER agrees to defend, indemnify and hold harmless CITY and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law, ordinance, or regulation, whether it be by itself or its employees. Article VII Attachments, Schedules, and Signatures This AGREEMENT, including its attachments and schedules, constitutes the entire AGREEMENT, supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. The following attachments and schedules are hereby made a part of this AGREEMENT: Attachment A- Scope of Services Attachment B — Compensation Attachment C -Amendments to Standard Agreement for Engineering Services Attachment D -- Project Schedule City of Fort Worth,Texas Standard Agreement for Engineering Related Design Services PMO official Release Date:08/09/2012 Page 15 of 16 Attachment E - Location Map Executed and effective this the 27th day of September, 2012. BY: BY: CITY OF FORT WORTH ENGINEER MJ Thomas Engineering, LLC u4j.%/ usan Alariis J li K. Tho as Assistant City Manager ri cip I Date. Date. APPROVAL RECOMMENDED: By: CD:- qichard Zavala rector, Parks and Community Services APPROVED AS TO FORM AND LEGALITY M&C No.: Not Required By: M&C Date: Douglas W. Black Assistant City Attorney A' 0 wh 0000000 oh ATTEST: ,b � W.► � 0� 010�04 10, ° 11 dpr e Ma J. � �►0�-�0 City Secr 00 City of Fort Worth,Texas OFFICIAL RECORD Standard Agreement for Engineering Related Design n Services PMO official Release Date:a8i�91 012 CR�ARY Page e 1 fi of 15 Clury MJ TH MAS MJT No. 506-008 August 3,2012 City of Fort Worth Parks and Community Services 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115-0383 Attention: Mr. Joel McElhany Reference: Proposal for Professional Surveying &Civil Engineering Services Quanah Parker Park Drainage Improvements Fort Worth,Texas Dear Mr. McElhany: MJ Thomas Engineering, LLC. (MJT) is pleased to present this letter contract for professional surveying and civil engineering services at Quanah Parker Park.The scope is to include a detail topographic survey of the site as depicted on the attached sketch and civil engineering design to correct the existing drainage/erosion conditions at eth two locations crossing the park road. Listed below is a breakdown of the services to be provided: A. Quanah Parker Park 1. Topographic Survey. MJT's sub-consultant will perform the necessary fieldwork to prepare a topographic map of the site for use in the design of all site improvements described herein. MJT's sub-consultant will provide a detailed topographic survey including existing surface features and trees of 4" caliper and larger within this limit. Approximate locations of existing underground utilities based off of public records including size and depth where possible. The survey shall include the following items. 1. Relate survey to North Central Zone NAD 83 coordinate system. 2. Locate edge of asphalt paving. 3. Locate end of RCP. 4. Elevations shot on approximately a 50' grid with grade breaks to produce a topographic survey with one foot contours. B. ON-SITE CIVIL ENGINEERING 1. on-Site Gradina/Drainage Plan MJT will design and prepare the required grading and drainage plans to correct the erosive conditions crossing the park road. MJT will prepare Mass Grading Plans for the site to assure positive surface drainage to the storm sewer system. The Civil Drawings are to include spot elevations and finished grade contours. 3400 Hulen Street, Suite 100 P: (817)732-9839 Fort Worth,Texas 78107 F: (817)732-9841 Registration #F-9435 ATTACHMENT A Proposal for Professional Surveying Services Quanah Parker Park Drainage improvements Fort Worth, Texas June 28, 2012 MJT will also provide an existing and proposed drainage area map and storm sewer plans for the On-Site area to meet the City's minimum requirements. Calculations will be presented on the plans for the City's approval.The Construction Drawings will include storm sewer plan and profiles,agreed improvements and shall conform to the City of Fort Worth Public Works Department. Design of extensions for storm sewer or outfall ditch improvements off-site and detention design have not been included in the Scope of Services as we do not see this as a requirement for this site. MJT has not included providing HEC, HECRAS, or other hydraulic modeling of the Trinity River or any of its tributaries in association with this project. 2. On-Site Pavina Plans MJT will also prepare and provide paving details for the repair of the park road. City of Fort Worth Parks Department shall provide MJT with the desired paving sections for the road. MJT will provide top and bottom of wall elevations for any retaining walls and will coordinate the location of the walls with the project Structural Engineer, if required. 3. Civil Coordination MJT will provide coordination with the City of Fort Worth Transportation Department and Parks and Community Services Department during the review process. Plan revisions by the owner after the first submittal to the City will be considered additional services, and will be billed at an agreed upon lump sum fee C. CIVIL CONSTRUCTION PHASE 1. Civil Contract Administration a. MJT will assist in answering questions and preparation of addenda. b. MJT will make visits to the site to observe the progress of work and attend site meetings as required. For budgetary purposes, we have anticipated a maximum of two (2) site meetings. Additional site visits may require additional compensation depending on the circumstances and may be negotiated with the Architect at that time. C. MJT will provide assistance in processing the Construction Manager's shop drawings and answering questions during construction relating to the site work. D. ASSUMPTIONS AND NOT INCLUDED Due to the unknowns involved in the preparation of this proposal, we have made the following assumptions. If these assumptions change, we may have to revise the represented fee. These assumptions are: 1. There will be no requirements for off-site drainage design, detention design, easement acquisition or grade-to drain permission. 2. Construction staking will be considered as additional services if required. 3. Changes in the site plan, scope of work, or other items, which result in redesign of the civil drawings may require MJT to adjust our fees and will be done so in writing prior to proceeding. If these assumptions change, or if any of the below items are required, these services can be performed at an agreed upon lump sum fee or hourly rate.These assumptions are: • Preliminary Platting • SWPPP • Off-site Plans • Traffic Impact Analysis MJ Thomas Engineering, LLC. Page 2 of 6 Proposal for Professional Surveying Services Quanah Parker Park Drainage Improvements Fort Worth, Texas June 28, 2012 M TxDOT Permits 0 Flood Studies • Wetland Studies • Environmental Services — Environmental services are not included in this proposal. If desired, these services can be performed though a sub-consultant. 0 Soil Investigation/Laboratory Testing: MJT would recommend to the Client that an independent laboratory be retained for use in any testing required during the design phase. Payment for these services should be paid directly by the Owner to the laboratory and should not be handled by MJT. • Retaining wall design, unless it is design build. • Re-design, re-study and/or revisions to recommended directives, conceptual or final studies, drawings, specifications or other documents after same have been previously approved by the owner in order to accomplish changes requested by the owner. Assistance as a consultant or expert witness in any discussions or litigation with third parties arising from this project. ■ Lift Station Design • All other items except as specifically listed. MJT proposes to perform all work outlined base services for a lump sum fee (Base Fee as listed below). Reimbursable expenses will be billed as outlined on the accompanying Terms and Conditions(TAC)and billed as an additional item. The TAC document forms a part of this proposal/contract. Reimbursable expenses consist of printing, reproduction, filing fees required by/to the City and delivery charges. Monthly statements for all work will be submitted to you by the 25th of each month, and are due by the 15th of the following month. Monthly bills will be based upon the Engineer's estimate of percent completion of the various work tasks. The fees are as follows: A. Topographic Survey................................................................................$2,300.00 B. On-Site Civil Engineering(Base Services}_____.._ ................... .........$7,,000.40 Additional services other than those outlined herein will also be accomplished on a Labor x 2.7 multiplier or lump sum,whichever is deemed to be the most appropriate. Items identified as additional services will be authorized in writing by the owner and confirmed by MJT via a memorandum and a job initiation form. As a matter of convenience we will also identify the job number which will bear the expense of additional services so all accounting can be appropriately identified. We consider design changes required by others than MJT after plans are significantly complete to be additional services. Alterations and modifications required as a normal course of review are considered part of this agreement. T_ E R IS 0 S Engineering and Planning s Lump sumiFaed fee contract. The basis pensation for additional services not included in the fixed fee ct by MJ Thomas Engineering,LLC.'s staff will be calculated by multiplyi employee's hourly rate by 3.6. Limitation of Liability—To the fullest extent permitted by law,and no nding any o vtsions of this Agreement,or existence of applicable insurance coverage, the total liability, in the aggregate of MJ Tho tineering, LLC. and MJ Thomas Engineering, LLC's officers,directors,employees,agents and Sub-consultants,to the ' , o Client and a claiming by,through or under Client,for any and all claims,losses,costs,or damages whatsoeve out of,resulting from,or in any way re the services under this Agreement from any cause or causes, including b united to the negligence, professional errors or omissi 'ct liability or breach of contract,or warranty expre tied of MJ Thomas Engineering, LLC.or MJ Thomas Engineering, LLC.officers, ' rs,employees, agents and nts,shall not exceed the total compensation received by MJ Thomas Engineering,LLC.under this co Higher lim' le for lost pro MJ Thomas Engineering, LLC. Page 3 of 6 Proposal for Professional Surveying Services Quanah Parker Park Drainage Improvements Fort Worth, Texas June 28,2012 i accordance with the plans and specifications. No uential Damages. Notwithstanding any other provision of the Agreement, neither party shall be liable to the other r any co ntial damages incurred due to the fault of the other party,regardless of the nature of this fault or whether it was Comm' by the Client or J Thomas Engineering,LLC.,their employees,agents,or sub-consultants. Consequential damages include,but are limited to, loss of use nd loss of profit. No Duties to hind Parties. The services to be performed by MJ Thomas Engineering,LLC.under this Agreement are' tended solely for the benefit of Client. Nothing contained herein shall confer any rights upon or create any dudes on the part of MJ omas Engineering, LLC.toward an rson or persons not a party to this Agreement including,but not limited to any contractor,subco ctor,supplier,or the agents,offioers, ployees,insurers,or sureties of any of them. Claims Limited to surance Coverage. The Client and MJ Thomas Engineering,LLC.waive all rights for da ages,each against the other and against the c tors,sub-consultants,agents,and employees of the other,but only to the extent co v by property insurance during or after construction,a oept such rights as they may have to the proceeds of such insurance. The Client MJ Thomas Engineering,LLC. each shall require simila waivers from their contractors,sub-consultants,and agents. General Contractor Duti and Responsibilities. Neither the professional activities of MJ Thoma ngineering,LLC.,nor the presence of MJ Thomas Engineering,LL .or their employees and sub-consultants at a construction site,sh relieve the General Contractor and any other entity of their obligations, uties and responsibilities including,but not limited to,construct means,methods,sequence,techniques or procedures necessary for perfo ing,superintending or coordinating all portions of the Wo f construction in accordance with the contract documents and any health or sa ty precautions required by any regulatory agencies. M horns Engineering,LLC.and their personnel have no authority to exercise any trol over any construction contractor or other anti r their employees in connection with their work or any health or safety precautions. Th lient agrees that the General Contractor is sol responsible for jobsite safety,and warrants that this intent shall be made evident in the Cl is agreement with the General Contra s# . The Client also agrees that the Client, MJ Thomas Engineering,LLC.and their Sub-consulta shall be indemnified and shall be de additional insured under the General Contractor's general liability insurance policy. Termination. This agreement may be temmin by either party seve }days after written native in the event of any breach of any provision of this agreement or in the event of subs 'al failure of perfo nce by the other party,or if Client suspends the work for the than three (3) months. In the event of termination, MJ HI be paid for rvices performed prior to the date of termination plus reasonable termination expenses,including,but not limited to the t of compl ng analyses,records,and reports necessary to document job status at the time of termination. Payments and Interest. Client recognizes that prompt pa nt of MJ Thomas Engineering, LLC.'s invoices is an essential aspect of the overall consideration MJ Thomas Engineering,LLC.requi fo roviding service to Client. Client will pay MJ Thomas Engineering,LLC.in accordance with the procedures indicated in the pro I an its attachments. Invoices will be submitted to Client by MJ Thomas Engineering,LLC.,and will be due and payable upon pr ntation. Client objects to all or any portion of any invoice,Client will so notify MJ Thomas Engineering,LLC.in writing within fourteen }calendar da of the invoice date,identify the cause of disagreement,and pay when due that portion of the invoice not in dispute. In a nee of written no' ton described above,the amount as stated on the invoice will be paid. Invoices are delinquent if payment has not n received within thirty t3 days from date of invoice. At the option of MJ Thomas Engineering, LLC., Client will pay an additi al charge of one-and-one-half(1. percent per month(or the maximum percentage by law, whichever is lower)on any delinquent a unt, except for any portion of the in iced amount in dispute and resolved in favor of Client. Disputed amounts withheld by the Clien ich are subsequently resolved in favor MJ Thomas Engineering,LLC.will carry the additional change, as described above, effectiv irty(30)days from the date of the original ' voice. In the event Client fails to pay MJ Thomas Engineering,LLC.within sixty 0) ys after invoices are rendered,Client agrees tha J Thomas Engineering,LLC.will have the right to consider the failure to pay MJ Th s Engineering,LLC.'s invoice as a breach of this ag ment. Cessation of Services. If Clie for any reason fails to pay the undisputed portion of MJ Tho as Engineering,LLC.7s invoices within 30 days of invoice date,MJ Thomas gineering,LLC.has the right to cease work on the project and C t shall waive any claim against MJ Thomas Engineering,LLC.for on of services,and shall defend and indemnify MJ Thomas Engr ring,LLC.from and against any claims for injury or loss stemmin m MJ Thomas Engineering,LLC.'s cessation of service. Client shall al pay MJ Thomas Engineering,LLC.the cost associated with p tune cessation of services. In the event the project is restated, Client hall also pay the oast of, and shall renegotiate appropriat contract terms and conditions,such as those associated with budget,schedule scope of service. Both the client and MJT may can is contract within seven(7)days for written notice. Certifications: rantees and Warranties: MJ Thomas Engineering,LLC.shall not be required to execute an ocument that Would result in its certifying uaranteeing or warranting the existence of conditions whose existence MJ Thomas Engineering,LL can not ascertain. Proposal me Limit:This proposal shall be considered valid for a period 60 days from the date signed by MJT.After this ' ,MJT reserves the right id this contract if not signed and returned by the client prior to this time frame. L Action. In the event legal action is necessary to enforce the payment terms of this Agreement,MJ Thomas Engineering,LL . hall be e to collect from the Client any judgment or settlement sums due, plus reasonable attorney=s fees,court costs and other e s r om rneenng, .rn canna ''on the reason MJ Thomas Engineering, LLC. Page 4 of 6 Proposal for Professional Surveying Services Quanah Parker Park Drainage Improvements Fort Worth, Texas June 28, 2012 nse r , ule and expense policies. Dispute Resolution and Termination. In the event any bill or pardon thereof is disputed by Client,CI' t sh notify MJ Thomas Engineering,LLC.within 10 days of receipt of the bill in question,and Client and MJ Thomas Engineering,LLC hall work ther to resolve the matter within 60 days of its being called to MJ Thomas Engineering,LLC.attention. If resolution of the after is not attai within 60 days,either party may terminate this Agreement in accordance with conditions indicated in the termination o greement clause s ' ed. Mediation. In effort to resolve any conflicts that arise during the design and construction of the Project or following completion of the Project,the Client d MJ Thomas Engineering,LLC.agree that all disputes between them arising out of or relating to is Agreement or the Project shall be subm to nonbinding mediation unless the parties mutually agree otherwise. The Client and MJ Tho Engineering, LLC. further agree to include a sirrrilar mediation provision in all a ments with independent contractors and sub-consu is retained for the Project and to require all independent contractors and su nsultants also to include a similar mediation provision ONO agreements with their subcontractors, sub-consultants, suppliers and bricators, thereby providing for mediation as the primary method r dispute resolution between the parties to all those agreements. Other charges which may apply to Client's project include: (1) Printing and reproduction shall billed at standard commercial rates. (2) All direct non-labor expense,incl bid advertising,etc.,and travel and subsis noe for the principals and staff when outside of Tarrant and Dallas counties as requi for the proper execution of the work,a charged at actual invoice cost. Filing fees paid by MJ Thomas Engineering,LLC.will be aged at cost plus 10%. Travel by assenger vehicles shall be at a rate commensurate with IRS regulations. (3) Services not offered as a part of MJ Thomas ineering,LLC.no I services such as special consultants and surveyors,the Client may,at his option,contract directly with the ird party for s services or through MJ Thomas Engineering,LLC. If such contracts are made through MJ Thomas Engineeri LLC. a 'oe charge of 10%will be added to the net amount of such contracts. Miscellaneous: (1) Intellectugi Prooft. The drawings,specifications and y othe rk products(including but not limited to software programs and electronic media of any description)prepared by M homas E 'neenng,LLC.for this project shall remain the property of MJ Thomas Engineering, LLC.and MJ Thomas Engi ring,LLC.s retain all common law,statutory and other reserved rights, including the copyright,where applicable. (2) Entire 6greement. This agreement is the enti agreement between the p 'es with respect to the subject matter of this agreement and shall be binding upon and inure to the nefit of the parties hereto and it respective legal representatives,heirs,successors and assigns. (3) Counterparts. This agreement shall executed with one or more separate count arts,each of which,when so executed,shall, together,constitute and be one in same instrument. (4) Gov ring Law and Venue. T is agreement shall be governed by and construed in a rdanoe with the substantive laws of the State of Texas and the pard hereto agree and consent that venue for all purposes shall be' Tarrant County,Texas. (5) Project Information: The lient shall fumish, at the Client's expense, all information, require nts, reports, data, surveys and instructions required b is Agreement. The Consultant may use such infom etion, requireme , reports, data, surveys and instructions in perform' its services and is entitled to rely upon the accuracy and completeness the f. (6) Hazardous M :As used in this Agreement, the term hazardous materials shall mean any subs ces, including but not limited to a ,toxic or hazardous waste, PCB's, combustible gases and materials, petroleum or ra ' ctive materials(as each of these i defined in applicable federal statutes)or any other substances under any conditions and i uch quantities as would pose substantial danger to personal or property exposed to such substances at or near the Project ' . Both parties acknowled that the oonsultant's soope of services does not include any services related to the presence of an rdous or toxic mat als. In the event the Consultant or any other party encounters any hazardous or toxic materials,or shoul it become known the Consultant that such materials may be present on or about the jobsite or any adjacent areas that may ct the pe nee of the Consultants services, the Consultant may, at its option and without liability for consequential or any er da ges,suspend performance of its services under this Agreement until the Client retains appropriate consultants or contra dentify and abate yr remove the MJ Thomas Engineering, LLC. Page 5 of 6 Proposal for Professional Surveying Services ouanah Parker Park Drainage Improvements Fort Worth,Texas June 28, 2012 We appreciate your consideration of MJ Thomas Engineering, LLC. and we share your enthusiasm for this project. if this proposal meets with your approval, please indicate by signing in the space provided, and return one copy as our Notice to Proceed. Please feel free to call if you have any questions concerning any of the scope of services or associated fees presented herein and we will do our best to clarify any part of the proposal that may be unclear. We appreciate the opportunity to assist you with this project and look forward to its success. CITY OF FORT WORTH MJ THOMAS N 1 RING C. CLIENT By: By: AiEhael Aft6dfnaS7 Principal Position Position August 28,2012 Date Date MAT/as 506-008_Prop_Civil&Survey JMcElhany_12-0803Jt MJ Thomas Engineering, LLC. Page 6 of 6 Black, Doug From: McElhany, Joel Sent: Thursday, October 18, 2012 9:50 AM To: Black, Doug Subject: FEE: MJ Thomas Categories: Hot Projects Doug. I spoke to Mickey, and he is fine with removing the Terms and Conditions from his proposal. That was on his boiler plate proposal, and since it was not signed we both thought it wouldn't be applicable. However, I should have removed it prior to routing. Can you pull those pages out of Attachment A? I don't have a copy so I'm not sure if there is a page break between the project scope and the terms and conditions. If you would like nee to pick it up and cross it out or remove the pages, please let me know. Joel From: Black, Doug Sent: Wednesday, October 10, 2012 9:55 AM To: McElhany, Joel Subject: MI Thomas Importance: High Joel: Unfortunately,once I read through the agreement, it became clear that the consultant has added multiple additional terms and conditions to our standard agreement through the Attachment A. I'm submitting these for review at Risk Management. I'll provide you with a suggested course of action once I evaluate the extent of their requested changes. Can you send me the page being used as Attachment C—Changes to Terms and Conditions? Thanks, Doug Douglas W. Black Assistant Citc~Aft(_)rnev y r City of Foi t Wortli Woo Throckmorton Fo rt"To rth,I'X 7610 1 817.392.761,5 tel. 817.392.8,'359 fax Doug.Black o-fortworthtexas. ov(please note the new email address as of Oct. 1,2011) This e-mail and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication may contain material protected by the attorney-client privilege. If you are not the intended recipient or the person responsible for delivering the e-mail to the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, 1 EXHIBIT"B-1" ENGINEER INVOICE (Supplement to Attachment B) Design Services for Quanah Parker Park Drainage Improvements City Project No. 01524 Lump Sum Project I. compensation A. The ENGINEER shall be compensated a total lump sum fee of $9,300.00 as summarized in Exhibit B-1 — Engineer Invoice and Section IV—Summary of Total Project Fees. The total lump sum fee shall be considered full compensation for the services described in Attachment A, including all labor materials, supplies, and equipment necessary to deliver the services. B. The ENGINEER shall be paid monthly payments as described in Section II - Method of Payment. II. Method of Payment A. Partial payment shall be made to the ENGINEER monthly upon City's approval of an invoice prepared and submitted by the ENGINEER in the format and including content as presented in Exhibit B-1, Progress Reports as required in item III. of this Attachment B, and Schedule as required in Attachment D to this Agreement. B. The estimated current physical percent complete as required on the invoice shall be calculated from the progress schedule as required in Attachment D to this Standard Agreement and according to the current version of the City of Fort Worth's Schedule Guidance Document. C. The cumulative sum of such monthly partial fee payments shall not exceed the total current project budget including all approved Amendments. D. Each invoice shall be verified as to its accuracy and compliance with the terms of this Agreement by an officer of the ENGINEER. Progress Reports A. The ENGINEER shall prepare and submit to the designated representative of the Parks and Community Services Department monthly progress reports and schedules in the format required by the City. EXHIBIT "BA f, ENGINEER INVOICE (Supplement to Attachment B) IV. Summary of Total Project Fees Firm T Primary Responsibility T�Fee Amount °/o Prime Consultant MJ Thomas Civil engineering and plan $7,000.00 75% Engineering, LLC preparation Proposed MBE/SBE Sub-consultants 1 i Non-MBEISBE consultants Herb Beasley Surveyor Topographic survey $2,300.00 ' 25% f TOTAL $9,300.00 100% Project Number& Name Total Fee MBEISBE Fee MBEISBE $9,300.00 $0 0% City MBEISBE Goal = NIA% Consultant Committed Goal = NIA % ATTACHMENT C AMENDMENTS To STANDARD AGREEMENT FOR ENGINEERING SERVICES There are no amendments to the Standard Agreement. ATTACHMENT D PROJECT SCHEDULE QUANAH PARKER PARK DRAINAGE IMPROVEMENTS 1. Issuance of Notice to Proceed Mid October 2012 2. Topographic Survey Late October 2012 - Mid November 2012 3. Design Mid November 212—Late January 2013 4. CFW Review TBD by CFW 5. Award Construction Contract TBD by CFW 6. 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