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HomeMy WebLinkAboutContract 41018STATE OF TEXAS § COUNTY OF TARRANT § CITY SECRETARY CONTRACTNOE'410 KNOWN ALL BY THESE PRESENTS: THIS AGREEMENT, entered into the `St day of , 2010 by and between the City of Fort Worth, a home -rule municipal corporation situated in Tarrant, Denton, Parker, and Wise Counties, Texas, acting herein by and through its duly authorized Assistant City Manager, hereinafter called the "City", and Kimley-Horn and Associates, Inc., an independent contractor "Consultant". City and Consultant may be referred to herein individually as a Party, or collectively as the Parties. WITNESSETH That for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1 SERVICES Section 1. Consultant hereby agrees to perform as an independent contractor the services set forth in the Scope of Services attached hereto as Attachment "A". These services shall be performed in connection with Development of a Transportation Utility Rate Policy Development ("Project"). Section 2. Additional services, if any, will be requested in writing by the City. City shall not pay for any work performed by Consultant or its subconsultants, subcontractors and/or suppliers that has not been ordered in writing. It is specifically agreed that Consultant shall not be compensated for any alleged additional work resulting from oral orders of any person. ARTICLE 2 COMPENSATION Consultant shall be compensated in accordance with the Fee Schedule shown in Attachment "B". Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment "A". However the total fee paid by the City shall not exceed a total of $24,900 unless the City and the Consultant mutually agree upon a fee amount for additional services and amend this Agreement accordingly. The Consultant shall provide monthly invoices to the City. Payment for services rendered shall be due within thirty (30) days of the uncontested performance of the particular services so ordered and receipt by City of Consultant's invoice for payment of same. OFFICIAL RECuiu) CITY SECRETARY FTm WORTH, TX 10-29-10 P01:.01 IN Acceptance by Consultant of said payment shall operate as and shall release the City from all claims or liabilities under this Agreement for anything related to, done, or furnished in connection with the services for which payment is made, including any act or omission of the City in connection with such services. ARTICLE 3 TERM Unless terminated pursuant to the terms herein, this Agreement shall be for a term of one year, beginning upon the date of its execution, or until the completion of the subject matter contemplated herein, whichever occurs first. ARTICLE 4 INDEPENDENT CONTRACTOR Consultant shall operate hereunder as an independent contractor, 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 its work to be performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondent superior shall not apply as between City and Consultant, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Consultant. ARTICLE 5 PROFESSIONAL COMPETENCE AND INDEMNIFICATION Section 1. Work performed by Consultant shall comply in all aspects with all applicable local, state and federal laws and with all applicable rules and regulations promulgated by the local, state and national boards, bureaus and agencies. Approval by the City shall not constitute or be deemed to be a release of the responsibility and liability of Consultant or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its services performed hereunder. Section 2. In accordance with Texas Local Government Code Section 271.904, the Consultant 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 Consultant or Consultant's agent, consultant under contract, or another entity over which the Consultant's exercises control. Professional Services Consultant Agreement Rev 7/8/2010 iiiiFICIAL RECORD CITY SECRETARY FT. WORTH, TX I Page 2 of 13 ARTICLE 6 INSURANCE Section 1. Consultant shall not commence work under this Agreement until it has obtained all insurance required under this Article and the City has approved such insurance, nor shall Consultant allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractor has been so obtained and approval given by the City; provided, however, Consultant may elect to add any subconsultant as an additional insured under its liability policies. Professional Liability $1,000,000 per claim and aggregate. Professional Liability insurance may be written on an occurrence or claims - made basis. If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement. The certificate of insurance shall state that the coverage is claims -made and include the retroactive date. The insurance shall be maintained for the duration of the contractual agreement, and for five (5) years following completion of the service provided under the contractual agreement, or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence coverage. Commercial General Liability $1,000,000 each occurrence $1,000,000 aggregate Automobile Liability $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Coverage shall be on any vehicle used in the course of the Project. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee Section 2. Additional Insurance Requirements a. Except for employer's liability insurance coverage under Consultant's worker's compensation insurance policy, the City, its officers, employees and servants shall be endorsed as an additional insured on Consultant's insurance policies. Professional Services Consultant Agreement Rev 7/8/2010 np_tet, • . X, rJ ll �1- ✓ Page 3 of 13 b. Certificates of insurance shall be delivered to the City of Fort Worth, Planning and Development Department, Attention: Katherine Beck, 1000 Throckmorton Street, Fort Worth, TX 76102, prior to commencement of work. c. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. d. Each insurance policy shall be endorsed to provide the City a minimum thirty days notice of cancellation, non -renewal, and/or material change in policy terms or coverage. A ten days notice shall be acceptable in the event of non-payment of premium. e. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A: VII or equivalent measure of financial strength and solvency. f. Other than worker's compensation insurance, in lieu of traditional insurance, City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. The City must approve in writing any alternative coverage. g. Workers' compensation insurance policy(s) covering employees employed on the Project shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. h. City shall not be responsible for the direct payment of insurance premium costs for Consultant's insurance. i. Consultant's insurance policies shall each be endorsed to provide that such insurance is primary protection and any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. j. In the course of the Agreement, Consultant shall report, in a timely manner, to City's officially designated contract administrator any known loss occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss. k. Consultant's liability shall not be limited to the specified amounts of insurance required herein. 1. Upon the request of City, Consultant shall provide complete copies of all insurance policies required by these Agreement documents. ARTICLE 7 TRANSFER OR ASSIGNMENT City and Consultant each bind themselves, and their lawful successors and assigns, to this Agreement. Consultant, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this Agreement without prior written consent of the City. Professional Services Consultant Agreement Rev 7/8/2010 Page 4 of 13 OFFICIAL RE‘tik0 CITY SECRETARY Ft WORTH, TX ARTICLE 8 TERMINATION OF CONTRACT Section 1. City may terminate this Agreement for its convenience on 30 days' written notice. Either the City or the Consultant for cause may terminate this Agreement if either Party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with 5 days of written notice and diligently complete the correction thereafter Section 2. If City chooses to terminate this Agreement under Article 8, upon receipt of notice of termination, Consultant shall discontinue services rendered up to the date of such termination and City shall compensate Consultant based upon calculations in Article 2 of this Agreement and Exhibit "B" attached hereto and incorporated herein. Section 3. All reports, whether partial or complete, prepared under this Agreement, including any original drawings or documents, whether furnished by the City, its officers, agents, employees, consultants, or contractors, or prepared by Consultant, shall be or become the property of the City, and shall be furnished to the City prior to or at the time such services are completed, or upon termination or expiration of this Agreement. ARTICLE 9 RIGHT TO AUDIT (a) 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 Consultant involving transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Consultant reasonable advance notice of intended audits. (b) Consultant further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontracting consultant 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 Consultant and any subconsultant reasonable advance notice of intended audit. (c) Consultant and subconsultants agree to photocopy such documents as may be requested by the City. The City agrees to reimburse Consultant for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. Professional Services Consultant Agreement Rev 7/8/2010 OFFICIAL RECOPY CITY SECRETARY FT. WORTH, TX Page 5of13 ARTICLE 10 MINORITY AND WOMAN BUSINESS ENTERPRISE (M/WBE) PARTICIPATION In accordance with City Ordinance No. 15530, the City has goals for the participation of minority business enterprises and woman business enterprises ("M/WBE") in City contracts. Consultant acknowledges the M/WBE goal established for this Agreement and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Consultant 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. ARTICLE 11 OBSERVE AND COMPLY Consultant shall at all times observe and comply with all federal, state, and local 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. Consultant 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 12 VENUE AND JURISDICTION If any action, whether real or asserted, at law or in 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 Agreement shall be construed in accordance with the laws of the State of Texas. ARTICLE 13 CONTRACT CONSTRUCTION The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. ARTICLE 14 SEVERABILITY The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other Professional Services Consultant Agreement Rev 7/8/2010 Page 6 of 13 OFFICIAL RECORD CITY SECRETARY le I. WORTH, TX persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. ARTICLE 15 NOTICES Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand - delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: City of Fort Worth Attn: Katherine Beck Planning and Development Department 1000 Throckmorton Street Fort Worth, Texas 76102 Consultant: Kimley-Horn and Associates, Inc Attn: Glenn Gary 801 Cherry Street, Unit 11 Suite 950 Fort Worth, TX 76102 ARTICLE 16 HEADINGS The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement ARTICLE 17 COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. Professional Services Consultant Agreement Rev 7/8/2010 (Remainder of Page Intentionally Left Blank) OFFICIAL itErti: CITY SECRETARY FT. WORTH, TX Page 7of13 IN WITNESS THEREOF, the parties hereto have made and executed this Agreement in multiple originals the day and year first above written, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH: Fernando Costa Assistant City Manager RECOMMENDED: Ran• a ood, l ire Planning and Development Department APPROVED AS TO FORM AND LEGALITY: ATTEST: • Marty Hendrix City Secretary \\\ \b Date NO M&C REQUIRED Professional Services Consultant Agreement Rev 7/8/2010 CONSULTANT: Glenn Gary Senior Vice President �a,�_o,000ao�r �a oo °o oO 0 M0 oa1g a id na 0000v47/ ° ,q� '4AS .,��w.t.ttmasei•40-cr --"111114- OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 8 of 13 ATTACHMENT "A" SCOPE OF SERVICES TRANSPORTATION UTILITY RATE POLICY DEVELOPMENT FORT WORTH, TEXAS PROJECT UNDERSTANDING The goal of this project is to develop the framework for a Transportation Utility Rate for the City of Fort Worth. This scope of services will provide the City of Fort Worth with the technical analysis to determine the Transportation Utility Rate that may be justified. SCOPE OF SERVICES If services beyond those defined in this scope are required, the Parties shall attempt to negotiate a written amendment to this Agreement. The Consultant shall not proceed with work on any additional services prior to the Parties executing a written amendment. The Scope of Services includes the following primary tasks: • Task 1 Development of Framework and Schedule • Task 2 —Determine Historic / Actual Direct Cost (2008 — 2010) • Task 3 —Determine Budgeted Direct Cost (2011) • Task 4 —Programmed Project Cost Projections • Task 5 —Develop Methodology to Calculate Transportation Utility Rate • Task 6 —Ordinance Review Task 1 Development of Framework and Schedule The Consultant will develop a framework and methodology for determining the historical direct cost, excluding City labor cost. The framework will focus on determining the direct cost the City of Fort Worth anticipates spending on transportation maintenance, roadway capacity improvements, and traffic signals. The Consultant will use the framework and methodology developed to perform a trial study with one division of Transportation and Public Works. Based on the trial study the Consultant will develop a memorandum summarizing the framework for the following tasks and develop a detailed schedule. Task 2 — Determine Historical Direct Costs Utilizing the methodology developed in Task 1, the Consultant will conduct a review and analysis of the historical direct costs for the six divisions (Business Support and Administration, Infrastructure Management, Transportation Programming, Traffic Services, Facilities Management, and Street Services) of Transportation and Public Works ("TPW"). The historical review and analysis will cover a timeframe of up to three fiscal years. The three-year timeframe o=i Professional Services Consultant Agreement ern( ts:5GRETARY Rev 7/8/2010 Page 9 of 13 of the historical review and analysis will be limited by any organizational and/or budgetary changes that materially differ from TPW's current organizational structure and/or budgetary practices. The Engineer will determine the historical direct cost, excluding labor cost, of providing transportation maintenance, roadway capacity improvements, and traffic signals, which will include, but may not be limited to, the review and analysis of: o the prorated cost of the acquisition, whether by eminent domain or otherwise, of land, rights -of -way, options to purchase land, easements, and interests in land for transportation maintenance, roadway capacity improvements, and traffic signals; o the prorated cost of the acquisition, construction, repair, and maintenance of structures, equipment, and facilities for transportation maintenance, roadway capacity improvements, and traffic signals; o the prorated cost of contracted architectural, engineering, legal, and related services, plans and specifications, studies, surveys, and all other expenses necessary or incident to planning, providing, or determining the feasibility and practicability of the transportation maintenance, roadway capacity improvements, and traffic signals; o the prorated cost of funding and financing charges and interest arising from transportation maintenance, roadway capacity improvements, and traffic signals; and o the prorated cost of funding and financing charges and interest arising from transportation maintenance, roadway capacity improvements, and traffic signals. The Consultant will interview appropriate divisional TPW staff who are knowledgeable of the historical and current operations and practices of performing the services associated with transportation maintenance, roadway capacity improvements, and traffic signals. The Consultant will conduct up to six (6) on -site interviews with TPW divisional staff. Task 3 — Determine Budgeted Direct Cost The Consultant will determine the budgeted direct cost, excluding labor cost the City of Fort Worth anticipates spending on transportation maintenance, roadway capacity improvements, and traffic signals during the fiscal year of 2010 — 2011. The Consultant anticipates coordination with the previously mentioned Transportation & Public Works Departments in determination of these direct costs. Task 4 — Program Project Cost Projections Using the information compiled in Tasks 1, 2 and 3, the Consultant will determine a transportation utility program project list. This list is not anticipated to directly identify specific projects, but quantity and types of projects to be constructed utilizing the dollars from the transportation utility. Professional Services Consultant Agreement Rev 7/8/2010 a OFFICIAL IRE+COite CITY SECRETARY FT. WORTH, TX Page 10 of 13 Task 5 Develop Methodology to Calculate the Transportation Utility Rate The Consultant will develop a method to proportionally distribute the total program project cost (Task 3) among those who receive a water bill within the City of Fort Worth. The CITY will provide the Consultant the land uses to be utilized in the methodology. The City will provide the total number of residential units within the City limits. The City will provide the non-residential land uses broken out by type of land use and total square footage. The Consultant will rely upon this information in the methodology development. The Consultant will determine the total vehicle -miles of demand generated within the City. PM peak hour trip generation estimates and pass -by trip reductions will be based upon the rates found in the ITE Trip Generation Manual and ITE Trip Generation Handbook. Trip lengths used in this calculation will be developed based upon the available regional travel studies conducted by the North Central Texas Council of Governments (NCTCOG). The Consultant will determine the percent of vehicle -mile demand each provided land uses within the City. Task 6 — Ordinance Review The Consultant will conduct up to three (3) formal reviews of the proposed ordinance provided by the City. The Consultant will provide comments to the City following each review. Professional Services Consultant Agreement Rev 7/8/2010 OFFICIAL REC'O C CAP/ SECRETARY FT. WORTH, TX Page 11 of 13 ATTACHMENT "B" FEE SCHEDULE TRANSPORTATION UTILITY RATE POLICY DEVELOPMENT FORT WORTH, TEXAS For Task 1 included in ATTACHMENT "A" (Scope of Services, Transportation Utility Rate Policy Development), the City agrees to pay the Consultant a lump sum fee of $9,900. For Task 2 to Task 6 included in ATTACHMENT "A" (Scope of Services, Transportation Utility Policy Development), the City agrees to pay the Consultant on a reimbursable basis not to exceed $15,000. For Task 2, the Consultant is only responsible for those professional services that can be completed within the maximum contract amount above. If the City requests the Consultant provide services that exceed the maximum contract amount specified in Attachment "B", an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate City approval. II. BASIS FOR COMPENSATION For Task 1, the City shall compensate the Consultant for the professional engineering services included in ATTACHMENT "A" on a lump sum fee basis. The lump sum fee includes labor costs and direct expenses identified in this contract, as well as items such as in-house duplicating, printing, facsimile, local mileage, telephone, postage, and computer expenses. For Task 1, the Consultant shall be paid monthly based on statements submitted to the City for the work accomplished during the preceding month. Monthly statements for lump sum services will be based upon a reasonable estimation of percent complete. For Task 2 to Task 6 the City shall compensate the Consultant for the professional engineering services included in ATTACHMENT "A" on a labor fee plus expense (reimbursable) basis. Labor fee will be billed in accordance with the rate schedule in effect at the time of the services. The Consultant may revise the rate schedule on January 1 of each year. For Task 2 to Task 6, direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.10 times cost. Administrative time related to the project may be billed hourly. Technical use of non -City computers for design, analysis, and graphics, etc. will be billed at $25.00 per hour. All permitting, application, and similar project fees will be paid directly by the City. Fees will be invoiced monthly based on the actual amount of service performed and expenses incurred. RD LOVFIC r t I viry s ,+ ` 4 tilTi ARC► Professional Services Consultant Agreement FT, WORI , IX Rev 7/8/2010 _ Page 12 of 13 Kirriley-Horn and Associates, Inc. Company Wide Rates (Hourly Rate) S enior Professional S enior Professional II P rofessional Designer Technical Support Clerical/Administrative Support Professional Services Consultant Agreement Rev 7/8/2010 $180 - $220 $140 - $185 $80-$125 $120 - $135 $60 - $110 $60 - $85 Effective January 1, 2010 OFFICIAL RECORD CITY SECRETARY FORTH, TX Page 13 of 13