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HomeMy WebLinkAboutContract 31506 _- 5 Y ,_TARY o . STATE OF TEXAS § KNOW ALL BY THESE PRESENTS: COUNTY OF TARRANT § THIS AGREEMENT is made and entered by and between the City of Fort Worth, Texas, a municipal corporation situated in Tarrant County, Texas, hereinafter called the "City", acting herein by and through Marc Ott, its duly authorized Assistant City Manager, and Thos S. Byrne, Ltd., hereinafter called the "Consultant" for the purpose of providing preconstruction services for the Public Health Center/Shamblee Branch Library, hereinafter referred to as the "Project". WITNESSETH: Whereas, Consultant has been selected to provide services as a Construction Manager at Risk ("CMAR") for the Project, and, Whereas, provided that Consultant and City are able to negotiate a contract for Consultant to be the CMAR for the Project, the Director of Transportation and Public Works intends to recommend to the Fort Worth City Council that Consultant be awarded a contract for Phase II (Construction) services under the solicitation, TPW2004-13, November 2004; Whereas, negotiations on contract terms, the development of a mutually agreeable Guaranteed Maximum Price (GMP) for construction of the Project, and approval of Council are necessary to commence services as the CMAR; Whereas, it is necessary for the City to engage Consultant during the design phase to arrive at a GMP. Now, therefore, in consideration of the mutual covenants and agreements herein contained, City and Consultant do hereby covenant and agree as follows: SECTION I. SCOPE OF WORK City hereby contracts with Consultant as an independent contractor, and the Consultant hereby agrees to perform, within the professional standards normally accepted in the State of Texas, preconstruction services in connection with the following general scope of work: Analyze the Architect's design, including Plans and Specification, to ensure the feasibility and constructability of the Project, assist in bringing the estimated construction cost of the Project within the construction Budget through value engineering, the selection of building systems and materials, cost estimating, scheduling and other means, without adversely affecting the capacity and quality of the Project. Based on this process, establish a GMP for the Project, including General Conditions, CMAR fee, insurance and bonds. The City has employed the architectural firm of Stanley Love-Stanley P.C. to perform any portion of the scope of work that requires performance by a licensed engineer or architect. Page l �`�A10 13 IlCV1) SECTION II.PERSONNEL 1. The following personnel will be assigned to this Project: 1.1. City of Fort Worth I.I.I. Project Manager: Bill Matysek 1.2. Consultant 1.2.1. Project Manager: Matt Smith 2. Neither party may change key personnel without agreement by the other party. SECTION III. CHARACTER OF CONSULTANT'S SERVICES 1. Consultant agrees to perform all necessary service to perform the Scope of Services. 2. Consultant shall advise City as to the necessity of City's providing or obtaining from others services and data required in connection with the Project at City's cost and expense (which services and data Consultant is not to provide hereunder but on which Consultant may rely in performing services hereunder), and act as City's representative in connection with any such services of others. SECTION IV. FOLLOW ON SERVICES OF CONSULTANT 1. City staff intends to recommend to the Fort Worth City Council an award of contract to Consultant CMAR. If a contract is awarded, the following terms will be made a part of such contract: a. General Conditions: 2.9% of cost of work b. Construction Manager's Fee: 2.85% of cost of work c. Project schedule: complete construction within 272 calendar days after the date of Notice to Proceed with the construction. d. MWBE participation level: i. Subcontractors: 30% of Cost of Work ii. E3 Consultants: 15% of Construction Manager's Fee. 2. Nothing in this agreement shall ever be construed in a manner that would require the City to award a CMAR contract to Consultant, it being acknowledged that the authority to award such a contract rests solely in the discretion of the Fort Worth City Council. Pa-e 2 10-15-03 __ SECTION V. COMPENSATION TO CONSULTANT 1. The total compensation for all of the assignments to be performed by Consultant as described in CHARACTER AND EXTENT of CONSULTANT'S SERVICES hereof shall not exceed $15,000, including the cost of any reimbursable expenses. Consultant agrees to complete the entire scope of work at the stated not-to-exceed amount, regardless of the hours required. SECTION VI. METHOD OF PAYMENT 1. The Consultant shall be paid not more frequently than once per month on the basis of statements prepared from the books and records of account of the Consultant, such statements to be verified as to accuracy and compliance with the terms of this Agreement by an officer of the Consultant. Payment according to statements will be subject to certification by the Director of the Transportation and Public Works Department or his duly authorized representative that such work has been performed. 2. The above charges are on the basis of prompt payment of bills rendered and continuous progress of the work on the Assignment until completion. If City fails to make any agreed to payment due Consultant for services and out-of-pocket expenses within sixty days after approval of Consultant's statement thereof, Consultant may, after giving seven days' written notice to City, suspend services under this Agreement until Consultant has been paid in full all amounts due for services actually performed and out-of-pocket expenses actually incurred. SECTION VII. CONSULTANT'S SERVICES 1. Consultant Services are outlined in Section 1 2. Consultant shall visit the sites and make himself familiar with the scope of the assignment 3. Consultant shall provide up to two formal presentations of the Project Analyses at various stages of the assignment. 4. All designs, drawings, specifications, documents, and other work products of the Consultant, 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 Consultant will be at the City's sole risk. City shall own the final printed designs, drawings, specifications and documents. Transfer of ownership of the contract documents does not constitute sale of the documents. SECTION VIII. CITY RESPONSIBILITIES 1. Provide criteria and information as to City's requirements and designate a person with authority to act on City's behalf on all matters concerning the Assignment 2. Clarify and define City's requirements relative to the assignments and review available data Page 3 10-15-03 _ 3. City shall notify the Consultant when it is appropriate to proceed with the services 4. Assist Consultant in obtaining existing studies, reports and other available data and services of others pertinent to the Assignment and in obtaining additional reports and data as required. 5. Upon reasonable notice arrange for access to and make all provisions for Consultant to enter upon public and private property as may be required for Consultant to perform services hereunder. 6. Designate in writing qualified persons who will act as City's representatives with respect to the Assignment for the purposes of transmitting instructions, receiving information, interpreting and defining City's policies and decisions with respect to Consultant's services. 7. Review all reports, recommendations and other documents and provide written decisions pertaining thereto within a reasonable time. 8. Upon reasonable notice provide labor and safety equipment to expose structural elements, to make temporary repairs, and to operate mechanical and electrical systems as required by the Consultant in the services. 9. Provide such legal, accounting, insurance and other counseling services to City as may be required for the Assignment. 10. Bear all costs incident to compliance with this Section. SECTION IX. TERMINATION 1. City may terminate this Agreement at any time for convenience or for any cause by (30) thirty-day notice in writing to the Consultant. Upon receipt of such notice, the Consultant shall immediately discontinue all services and work and the placing of all orders or the entering into Contracts for supplies, assistance, facilities and materials in connection with the performance of this Agreement and shall proceed to cancel promptly all existing contracts insofar as they are chargeable to this Agreement. 2. If City terminates this Agreement under the foregoing paragraph, the City shall pay the Consultant for services performed in accordance herewith prior to such termination, less such payments having been previously made. Such payment shall be based upon the work completed up to the date of termination of the Agreement in accordance with the method of compensation prescribed in Sections V and VI hereof. Consultant shall also be compensated for all termination-related expenses such as meeting attendance, document reproduction, transfer of records, etc. 3. Upon early termination or conclusion of this Agreement, the Consultant shall provide the City reproducible copies of all completed or partially completed documents prepared under this Agreement that shall become the property of the City and may be used by the City in any manner it desires. The Consultant shall not be liable for the use of such materials for any project other than the project described in this Agreement. Page 4 - 10-15-03 SECTION X. INDEMNITY AND INSURANCE 1. Consultant shall indemnify and hold the City and all its officers, agents, servants and employees harmless from any loss, damage, liability or expenses, on account of damage to property and injuries, including death, to all persons, including but not limited to officers, agents, or employees of the Consultant or any subconsultant, and all other persons performing any part of the work and improvements, which may arise out of any negligent act, error or omission in the performance of the Consultant's professional services. In no event shall the Consultant be liable for consequential damages. 2. The Consultant shall defend at its own expense any suits or other proceedings brought against the City, its officers, agents, servants and employees, or any of them on account thereof, and shall pay all expenses and satisfy all judgments which may be incurred by or rendered against them arising out or the indemnification; provided and except, however, that this indemnification provision shall not be construed as requiring the Consultant to indemnify or hold the City or any of its officers, agents, servants or employees harmless from any loss, damages, liability or expense, on account of damage to property or injuries to person caused by defects or deficiencies in design criteria based upon information furnished Consultant by City. 3. Without limiting the above indemnity, Consultant shall maintain a policy of comprehensive general liability insurance coverage with carriers acceptable to City in at least the following amounts: Commercial General Liability $1,000,000 Per Occurrence Employers Liability Insurance Bodily Injury $500,000 Each Accident $500,000 Policy Limit $500,000 Bodily Injury by Disease, each employee Workers Compensation Coverage A: Statutory limits Coverage B: Employer's Liability $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee Paces 10-15-03 if 1'S Business Automobile Combination Single limits $500,000 each accident Personal Injury $2,500 each person Uninsured $500,000 each accident Professional Liability Insurance Not required. 4. Consultant shall furnish City a Certificate of Insurance in at least the above amounts. Certificate shall contain a provision that such insurance cannot be canceled without 30 days prior written notice to City. The City reserves the right to revise insurance requirements specified in this agreement to the best interests of the City. 5. General Insurance Requirements 5.1. Commercial General Liability coverage 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. 5.2. Certificate(s) of insurance shall document that specified insurance coveragesare provided under applicable policies documented thereon. 5.3. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. 5.4. A minimum of thirty days notice of cancellation, non-renewal or material change in coverage shall be provided to the City. A ten days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Consultant's insurance policies. Notice shall be sent to the Facilities Manager, Transportation and Public Works Department, 1000 Throckmorton, Fort Worth,TX 76102. 5.5. The City shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of the Consultants general overhead. 5.6. The City reserves the right to revise insurance requirements specified in this agreement according to the best interests of the City. 5.7. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by the City; and, such insurers shall be acceptable to the City in terms of their financial strength and solvency. 5.8. Deductible limits, or self-insured retentions, affecting insurance required herein may be acceptable to the City at its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups must be also approved. Dedicated financial resources or letters of credit may also be acceptable to the City. Pace 6 10-15-03 5.9. The City shall be entitled, upon its request and without incurring expense, to review the Consultant's insurance policies including endorsements thereto and, at the City's discretion, the Consultant may be required to provide proof of insurance premium payments. 5.10. The City shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of Consultant's indirect overhead 5.11. All insurance, except for the Professional Liability insurance policy, shall be written on an occurrence basis. 5.12. Subconsultants to the Consultant shall be required by the Consultant to maintain the same or reasonably equivalent insurance coverage, except for Professional Liability Insurance, as required for the Consultant. Consultant shall provide City with documentation thereof on certificates of insurance. The Consultant shall assure that Subconsultants provide acceptable and appropriate levels of Professional Liability coverage or that the Consultant's coverage provides coverage for the work of the Subconsultant. Notwithstanding anything to the contrary contained herein, in the event a subconsultant's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by Consultant of the Agreement. SECTION XI RIGHT TO AUDIT 1. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant (30) thirty days advance notice of intended audits. 2. Consultant further agrees to include in all its subcontracts hereunder a provision to the effect that the subconsultant agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that City shall have access during normal working hours to all subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article. City shall give subconsultant (30) thirty days advance notice of intended audits. 3. Consultant and Subconsultants agree to photocopy such project-related documents as may be requested by the City. The City agrees to reimburse Consultant and Subconsultant for the costs of copies at the rate published in the Texas Administrative Code. Page 7 - 10-15-03 _- SECTION XII. SUCCESSORS AND ASSIGNS 1. The City and the Consultant each bind themselves, their successors and assigns, to the other party to this Agreement and to the successors and assigns of each other party in respect to all covenants of this Agreement. SECTION XIII. ASSIGNMENT 1. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. SECTION XIV. INDEPENDENT CONSULTANT 1. Consultant shall perform all work and services hereunder as an independent Consultant, and not as an officer, agent, servant or employee of the City. Consultant shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and Subconsultants. Nothing herein shall be construed as creating a partnership or joint venture between the City and the Consultant, its officers, agents, employees and Subconsultants, and doctrine of respondent superior has no application as between the City and the Consultant. SECTION XV. OBSERVE AND COMPLY 1. If permitting authorities require design changes so as to comply with published design criteria and/or current practice standards, which the Consultant should have been aware of at the time this Agreement was executed, the Consultant 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 Consultant could not have been reasonably aware of, the Consultant shall notify the City of such changes and an adjustment in compensation will be made through an amendment to this Agreement. SECTION XVI. VENUE AND GOVERNING LAWS 1. Venue of any suit or cause of action under this Agreement shall lie in Tarrant County, Texas. 2. This contract shall be construed in accordance with the laws of the state of Texas. IN TESTIMONY THEREOF, the City of Fort Worth has caused this instrument to be signed in triplicate in its name and on its behalf, by its City Manager and attested by its City Secretary, with the Corporate Seal affixed; and the Consultant has also properly executed this instrument in triplicate copies, each of which is deemed an original. Page 8 10-15-03 .;�, EXECUTED IN THE CITY OF FORT WORTH, TEXAS, THISIblay of f6 rC 2005. Thos. S. Byrne, Ltd. City of Fort Worth By: T.S. B Management, Gener P ner By: B Jo Avila Marc Ott D'rector Assistant City Manager Approval Recommended: Attested: Department of Transportation and Public Works 6175 l By: Bv: "tv',&buk� Robert Goode, P. E. Marty Hen ix Director City Secretary Approved as to Form And Legality: FNO M&C REQUIRED �V- Assis tan City Attorney Pa-e 9 10-15-03 " "