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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, Denton, and Wise
Counties, Texas, ("City"), acting herein by and through Marc A. Ott, its duly
authorized Assistant City Manager, and Thos S. Byrne, Ltd., by T.S. Byrne
Management, Inc., its General Partner, by John Avila, its duly authorized Director
("Consultant") for the purpose of providing preconstruction services to assist in
the design phase for the construction of the downtown parking garage project
contemplated by City solicitation TPW2006-01, October 2005 ("Project"). City
and Consultant may be referred to herein individually as a"Party" and collectively
as the "Parties".
WITNESSETH:
Whereas, City may award Consultant a separate Construction Manager at
Risk "CMAR" contract for the construction phase of the Project; and
Whereas, the City requires the provision of preconstruction design phase
services for the Project; and
Whereas, Consultant agrees to provide preconstruction services as
described herein, for the "Project".
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
1. 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 design phase
services in connection with the following general scope of work:
Analyze the Project design, including but not limited to, the plans
and specifications created by Jacobs Facilities Inc., (the "Architect")
to ensure the feasibility and constructability of the Project, assist in
bringing the 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, assist in establishing the GMP for the
Project, including but not limited to the costs associated with the
General Conditions, CMAR fee, insurance and bonds. Up to 3 full
scale pricing exercises may be required prior to the finalization of . �— ��
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2. Consultant shall visit and familiarize itself with the site(s) to accommodate its
performance of this Agreement.
3. Upon the direction of the Project Manager, Consultant shall provide up to two
formal presentations of the project analyses at various stages of this
Agreement.
4. The City has employed the Architect to perform any portion of the Scope of
Work that requires perFormance by a licensed architect or engineer.
Consultant will work in cooperation with Architect to complete the Scope of
Work.
5. Consultant shall advise City if City should provide or obtain other services
and/or data in connection with this Agreement but not provided for herein.
SECTION II. PERSONNEL
1. The following personnel will be assigned to this Project:
1.1. City of Fort Worth
1.1.1. Project Manager: Alfonso Meza
1.2. Consultant
1.2.1. Project Manager: Bill Scott
2. Neither party may change key personnel without written notice to the other
party.
SECTION III. COMPENSATION AND PAYMENT
1. The total compensation for ConsultanYs perFormance under this Agreement,
as described in Section I hereof, shall not exceed $25,000.00, 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 to complete perFormance.
2. 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. City shall notify
Consultant of any disputed amount and make payment for the undisputed
amount due.
3. If City fails to make any undisputed 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 �
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in full all undisputed amounts due for services performed and out-of-pocket
expenses incurred.
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 Agreement, whether or not this Agreement and/or the Project
are completed. 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 IV. CITY RESPONSIBILITIES
1. Clarify and define City's requirements relative to this Agreement and review
submitted data.
2. City shall notify the Consultant when it is appropriate to proceed with the
Scope of Work.
3. Assist Consultant in obtaining existing studies, reports and other available
data and services of others pertinent to this Agreement and in obtaining
additional reports and data as required.
4. 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.
5. Designate in writing qualified persons who will act as City's representatives
with respect to this Agreement for the purposes of transmitting instructions,
receiving information, interpreting and defining City's policies and decisions
with respect to Consultant's services.
6. Review all reports, recommendations and other documents and provide
written decisions pertaining thereto within a reasonable time.
7. 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 connection with its
performance of the Scope of Work.
8. Provide such legal, accounting, insurance and other counseling services to
City as may be required for this Agreement
9. Bear all costs incident to compliance with this Section.
SECTION V. TERMINATION
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1. City may terminate this Agreement at any time for convenience or for any
cause by providing a(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.
SECTION VI.INDEMNITY AND INSURANCE
1. Consultant shall indemnify, defend, 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.
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:
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Commercial General Liability
Employers Liability tnsurance
Bodily Injury
Workers Compensation
Coverage A: Statutory limits
$1,000,000 Per Occurrence
$2,000,000 Aggregate
$500,000 Each Accident
$500,000 Policy Limit
$500,000 Bodily Injury by Disease, each
employee
Coverage B: Employer's Liability
$100,000 each accident
$500,000 disease - policy limit
$100,000 disease - each employee
Business Automobile
Combination Single limits $1,000,000 each accident
A business auto policy shall provide coverage on "any auto", defined
as autos owned, hired and non-owned
Professional Liability Insurance Not required.
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.
4. General Insurance Requirements
4.1. 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.
4.2. Certificate(s) of insurance shall document that specified insurance
coverage are provided under applicable policies documented thereon.
4.3. Any failure on part of the City to request required insurance
documentation shall not constitute a waiver of the insurance
requirements.
4.4. 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
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sent to the Facilities Manager, Transportation and Public Works
Department, 1000 Throckmorton, Fort Worth, TX 76102.
4.5. 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.
4.6. The City reserves the right to revise insurance requirements specified in
this agreement according to the best interests of the City.
4.7. 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.
4.8. 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.
4.9. 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.
4.10. 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
4.11. All insurance, except for the Professional Liability insurance policy, shall
be written on an occurrence basis.
4.12. 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 VII. 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
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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 reasonable 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. The City shall give subconsultant reasonable
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.
SECTION VIII. SUCCESSORS AND ASSIGNS
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 IX. ASSIGNMENT
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 X. INDEPENDENT CONSULTANT
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,
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agents, employees and subconsultants, and doctrine of respondent superior has
no application as between the City and the Consultant.
SECTION XI.VENUE AND GOVERNING LAWS
If any action, whether real or asserted, at law or equity, arises on the basis of any
provision of this Agreement, venue for such action shall lie in state courts located
in Tarrant County, Texas or the United States District Court for the Northern
District of Texas — Fort Worth Division. This contract shall be construed in
accordance with the laws of the state of Texas.
(Remainder of Page Intentionally Left Blank)
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IN TESTIMONY THEREOF, the Parties have caused this instrument to be
signed in triplicate
Executed in the City of Fort Worth, Texas, this � 7��day of �� Q�,-,Z.�r , 2006.
CONSULTANT
Thos. S. Byrne, Ltd.
By T. S. By..r-r�e�ag
Its General Pa��' 1
�Av
D' ector
I nc.
APPROVAL RECOMMENDED:
By: ,�7 �
�.� Robert Goo e, P. E., Director
Transportation & Public Works Dept.
APPROVED A�; 70 FO
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BY: r ,�i%� ��
Amy J. Ra�isey �,
Assistant �it�t Attorney
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AND'�LEGALITY:
CITY OF FORT WORTH
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B : ,h���� �«/��
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�.,�;�' Marc A. Ott
�; Assistant City Manager
ATTEST:
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By: i_ , ���(i, �
�,�c�Ma �: y Hendrix
�� City S�cretary
Date: 7 � I � % ✓�� <<�
Contract Authorization:
M&C C-21272
January 24, 2006
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 1/24/2006 - Ordinance No. 16791-1-2006 & 16792-1-2006
DATE: Tuesday, January 24, 2006
LOG NAME: 20TSBGARAGE REFERENCE NO.: C-21272
SUBJECT:
Adopt Appropriation Ordinances and Authorize a Pre-Construction Services Agreement with Thos.
S. Byrne, Ltd. for Pricing, Value-Engineering and Constructability Review Services Associated with
the Design of a New Downtown Parking Garage
RECOMMENDATION:
It is recommended that the City Council:
1. Adopt the attached appropriation ordinance increasing appropriations in the Culture and Tourism Fund
by $25,000, and decreasing the unreserved, undesignated fund balance by the same amount;
2. Authorize the transfer of $25,000 from the Culture and Tourism Fund to the Specially Funded Capital
Projects Fund;
3. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the
Specially Funded Capital Projects Fund by $25,000 from available funds; and
4. Authorize a pre-construction services agreement with Thos. S. Byrne Ltd. in the amount of $25,000 for
pricing, value-engineering and constructability review services throughout the design phase of the new
downtown parking garage.
DISCUSSION:
On October 13, 2005, a Request for Proposals was issued for a Construction Manager At Risk (CMAR) firm
to participate in the design process and lead the construction process for the construction of a new
downtown City parking garage. Four CMAR firms submitted proposals. A City staff selection panel
evaluated the proposal packages, interviewed all four firms and conducted reference checks. The selection
process resulted in the identification of Thos. S. Byrne Ltd. as the best-qualified CMAR firm.
During the design phase, Thos S. Byrne Ltd. will work with the design team and other stakeholders to
develop cost estimates, make value-engineering suggestions and review the design from a constructability
standpoint. The fee for Thos. S.Byrne Ltd. for these services is $25,000. Funding for this agreement will
come from the Hotel/Motel Occupancy Tax and DFW Airport Rental Car tax.
At the conclusion of the design phase, Thos. S. Byrne Ltd. will formally bid out the construction of the
garage and develop a Guaranteed Maximum Price (GMP) for the construction of the garage. Upon
establishment of an agreed upon GMP, City staff intends to recommend to the City Council that Thos. S.
Byrne Ltd. be engaged in a construction contract in the amount of the GMP.
Thos. S. Byrne Ltd. has committed to 35% overall M/WBE participation on the Parking Garage project and
is in compliance with the City's M/WBE Ordinance. This M&C reflects the first phase of the CMAR process
for this project.
Logname: SSSPINKS RAMP Page 1 of 2
The new City garage will be physically located in COUNCIL DISTRICT 9, but will serve Fort Worth residents
in all Council Districts.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that upon approval of the above recommendations and adoption of the
attached appropriation ordinances, funds will be available in the current capital budget, as appropriated, of
the Specially Funded Capital Projects Fund. The unreserved, designated fund balance of the Culture and
Tourism Fund will be $16,763,251.63 after this appropriation.
TO Fund/Account/Centers
1.) GG04 538070 0240400
�
C291 472004 301070013630
�
C291 539120 301070013630
$25,000.00
$25,000.00
$25,000.00
Submitted for City Manager's Office bv:
Originating Department Head:
Additional Information Contact:
Logname: SSSPINKS RAMP
FROM Fund/Account/Centers
2.) GG04 538070 0240400 $25,000.00
� $25,000.00
C291 539120 301070013630
Marc Ott (8476)
Robert Goode (7804)
Greg Simmons (7862)
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