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HomeMy WebLinkAboutContract 42224STANlARD AGR CJITY SECRETA RY CONTRACT NO, � f- �� C'9TV 6 R T WORTH, TEXAS CEMENT FOR ENGINEERING RELATED DESIGN SERVICES This AGRH=MENT is between the City of Fort Worth, a Texas homearule municipality (the "CITY"), and Dunaway Associates, L. P., a Texas Limited Partnership ,authorized to do business in Texas (the "I 'NGINI ER"), for a PROJECT generally described as: Revise and Resubmit Construction Documents and Submit for TDLR Review for the Gendy Street Beautification at the Will Rogers Memorial Canter in Fort Worth, Texas. Article I Se pe of Services A. Scope of Services is set forth in Attachment A. Article II Compensation A. The ENGINEER'S compensation ($47,500.00) is set forth in Attachment A. 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 A 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. OFFICIAL RECORD CITY SECRETARY In the event of a disputed or contested billing, only that portion so co itested will be withheld from payment, and the undisputed portion will be FT. WORTH, TX pad. The CITY will exercise reasonableness in contesting any bill or WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 1 of 17) 09-02-11 P 1 2: 45 O U T 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 B. 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 ENGINEERS 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. (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 WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 2 of 17) 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 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 WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 3 of 17) 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 ENGINEER'S opinions, analyses, projections, or estimates. 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 matters at issue between the CITY and the construction contractor that affect the amount that should be paid. H. 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 WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 4 of 17) 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 and Woman business Enterprise (MANSE) Participation In accord with City of Fort Worth Ordinance No. 133500, the City has goals for the participation of minority business enterprises and woman business enterprises in City contracts Engineer acknowledges the M/WBE goal established for this contract is 5% and its commitment to meet that goal. 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 under 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 subcontractor agreements hereunder a provision to the effect that the subcontractor 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 subcontractor, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all subcontractor 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 subcontractor reasonable advance notice of intended audits. (3) ENGINEER and subcontractor 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. WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 5 of 17) 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: premises/operations, products/completed 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 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. WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 6 of 17) 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 $100,000.00 each accident for bodily injury by accident or $100,000.00 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. 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. Such terms shall be endorsed onto ENGINEER'S insurance policies. Notice shall be sent to the respective Department Director (by name), City of Fort WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 7 of 17) Worth, 1000 Throckmorton, Fort Worth, Texas 76102. 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 letters 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. is 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 changes from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. I. The CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. m. 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 subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a certificate of insurance. WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 8 of 17) Independent Engineer The ENGINEER agrees to perform all services as an independent ENGINEER 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 e 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 amendment to this AGREEMENT. Schedule ENGINEER shall manage the PROJECT in accordance with the schedule developed per Attachment A to this AGREEMENT. WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 9 of 17) Article V Obligations of the City Amendments to Article V, if any, are included in Attachment B. 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 ENGINEER'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 ENGINEER'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. 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 A. 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. WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 10 of 17) 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 contractor's negligence. H. Contractor Claims and Third -Party Beneficiaries (1) The 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 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 WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 11 of 17) 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. Article VI General Legal Provisions Amendments to Article VI, if any, are included in Attachment B 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 WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 12 of 17) 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 CITY'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; b.) Out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; c.) The time requirements for the ENGINEERS 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 WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 13 of 17) 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. Interpretation Limitations on liability and indemnities in this AGREEMENT are business u nderstandings between the parties and shall apply to all the different theories of recovery, including breach of contract or warranty, tort including n egligence, strict or statutory liability, or any other cause of action, except for willful misconduct or gross negligence for limitations of liability and sole n egligence for indemnification. Parties mean the CITY and the ENGINEER, and their officers, employees, agents, and subcontractors. 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 V.F., VI.B., VI D , VI.F., VI.H., and VI.I. shall survive termination of this AGREEMENT for any cause. WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 14 of 17) 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, Compensation, and Schedule Attachment B - Amendments to Standard Agreement for Engineering Services The Remainder of this Page is Intentionally Left Blank WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 15 of 17) C f�04 Executed and effective this the -_' day of ATTEST: Ate 00 ne et" 0,4 Prit1/4 APPROVE D AS TO Ficifgl AND 'lam Marty Hendrix City Secretary By: Douglas W. Black Assistant City Attorney r4f 4 ooc) 'Nb ;#,c :41%,e41% CAA LFGALIT- '\0Q �► o00004s`4Oritvid $Xlazat M&C No.: M&C Is Not Reauired M&C Date: "Nn‘rlAir, 20 . CITY OF FORT WORTH: By:cran•s•nek Fernando Costa Assistant City Manager APPROVAL RECOMMENDED: By: caw Dougl. W. Wiersig, PE, �irector Transportatio & Public Works Dept. B ENGI Baca, PE § ciate, Senior Project Engineer OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 16 of 17) ATTACHMENT A - SCOPE OF SERVICES, COMPENSATION, SCHEDULE Refer to the attached Dunaway Associates L. P. letter dated July 21, 2011 subject. Proposal for Professional Civil Engineering and Surveying Services Gendy Street Beautification If any conflict arises between the Attachments/Exhibits and the Agreement, the terms of the Agreement shall control. ATTACHMENT B - AMENDMENTS TO AGREEMENT NONE WRMC Gendy Street Beautification (August 2011) Dunaway Associates, LP (Page 17 of 17) Dunaway No. 2009128.004 July 21, 2011 Mr. Dalton Muryama City of Fort Worth 401 W. 13th Street Fort Worth, TX 76102 Reference: Proposal for Professional Civil Engineering and Surveying Services Gendy Street Beautification Dear Dalton: Dunaway Associates, L.P. (Dunaway) is pleased to submit this proposal for professional civil engineering services for Gendy Street Beautification. Based on conversations with you, we believe the following scope of services will meet your needs for this project: SCOPE OF WORK 1. Hardscape/Landscape Gendv Street Improvements - Revisions & Re -submittal - The construction documents were originally prepared under a separate contract. After coordination with City staff on the design, and completion of the construction documents, it was determined that a formal review by TPW infrastructure was required. The plans were revised to meet the standards for submittal to infrastructure review. This proposal covers all design and coordination through bidding. Construction Administration and construction staking are not a part of this proposal. 2. TDLR Review K ►- K Associates will provide accessibility consulting, plan review, and inspection, as required by the Texas Department of Licensing and Regulation. Only those services specifically mentioned in the Scope of Work section are offered as part of this proposal. FEE Dunaway Associates, L P proposes to provide the above -described scope of work for a LUMP SUM fee of $47,500,00 exclusive of reimbursable expenses. Please find attached to this proposal our Standard Terms & Conditions for professional services, which is also part of this proposal. Hardscape/Landscape Revisions & Re -submittal - $45,000 TDLR Review $2500 ADDITIONAL SERVICES (not included in proposal) The following is a list of some, but not necessarily all, of the services that can be useful or required for a project of this type. The listed services have not been included in this proposal. Dunaway can provide or sub -consult many of these services if desired by City of Fort Worth. If City of Fort Worth determines any of these services is desired, Dunaway can either amend this proposal to incorporate the desired service or services or recommend other actions to cover the needs as expressed. 1. Flood studies for changes to FEMA flood maps. 2. Phase 1 and Phase 2 Environmental Site Assessments. 550 Bane:, Avenue, Suds;'tfii . fart Y;orth, exos 76107 IS le!: 817.335 1121 Sft;x: 817 7 4 diuna is Jos.o-c;atcs.coni Proposal for Professional Civil Engineering and Land Surveying Services Gendy Street Beautification July 21, 2011 Page 2 3. Wetlands delineations and Section 404 permitting through the US Army Corps of Engineers. 4. Structural design of retaining walls. 5. Design of franchise utilities (gas, electric, telephone and cable TV) will be conducted by the franchise utility companies. Usually, each franchise utility company will provide its own design If desired, Dunaway will show the conduit for each of these on our drawings provided that the size number and material for each conduit is provided to Dunaway by the utility company. 6. Redesign efforts related to site plan or building footprint changes after significant design efforts have begun are not included. 7. Boundary surveys and as -built surveys and/or easements by separate instrument. 8. Soil Investigation/Laboratory Testing: Dunaway recommends that City of Fort Worth retain an independent laboratory for use in any testing required during the design phase, i.e for density approval in the street rights -of -way, and for any site excavation and embankment that might be required for this project. 9. Construction inspection services are not included Dunaway does not provide construction inspection services. Normally, we recommend that City of Fort Worth retain a geotechnical engineering consultant to provide construction inspection services for private improvements. If this proposal meets with your approval, please sign below and return one copy to our office as our notice to proceed. We appreciate the opportunity to assist you with this project and look forward to its success. Respectfully submitted, / C DUNAWA: AS:iO(ATES, L.P. xa a Tesifimit-ed partnership ,7%/ IBrobjcgr ca, P.E; `\. Associate/SeTi9/Project Manager 1 r Chris H. Wilde P E , LEED AP°' Principal/Director of Private Sector Services cc: James Homer Attachments BIB.mlb 2009128.004frop1_CFvd Gendy Street Agreed & Accepted CITY OF FORT WORTH By Name: Dalton Muravama Title: Project Manager Date: 550 Salley Avenue, Suile 400 -, Fort Worth, Texas 76107 Tel; 817,335,1121 Fox; 817,335,7437 dunawoyossoclates.corn BASE CONTRACT: Client: Service Professional: Project Name: STANDARD TERMS & CONDITIONS City of Fort Worth Dunaway Associates, L.P. Gently Street Beautification Page 1 of 2 These Standard Terms & Conditions are attached to and fully incorporated into the Base Contract. The Base Contract, together with these Standard Terms and Conditions, is sometimes called this "Agreement" herein. I. Basis of Compensation. Professional Services shall be billed monthly and based upon either a percent complete for lump sum tasks or Dunaway Associates, L.P.'s Standard Hourly Bill Rate Schedule. This Schedule is updated annually in January. 2011 STANDARD HOURLY BILL RATE SCHEDULE STAFF TYPE HOURLY BILL RATE Administrative $67.00 - $87.00 Cadd Technician $76.00 - $90.00 Department Directors $155.00 - $225.00 Graduate Engineer $94.00 I. 5105.00 Design Technician $92.00 - 5150.00 Environmental Scientist $78.00 - 5130.00 Expert Witness / Special Consultant $225.00 - $275.00 Field Supervisor 590.00 - 160.00 Financial S70.00 - $165.00 Information Systems $75,00 - $165.00 Instrument Operator $45.00 Intern $65.00 Land Planner $130.00 - $150.00 Landscape Architect $95.00 - $145.00 Landscape Planner $85.00 - $95.00 Marketing/Business Development $65.00 - $120,00 Principal $175.00 - $225.00 Production Manager 5100.00-5120,00 Project Engineer $110,00-$150.00 Project Surveyor $95.00-$140.00 P roject Manager $110.00 - $150.00 Rodman $40.00 Survey Manager $115.00 - $150.00 S urvey Party Chief $108.00 - $117.00 S urvey Technician $77.00 - $95.00 Traffic/Transportation Engineer $94.00 - 5150,00 It. Limitation of Liability. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability in the aggregate of Dunaway Associates, L.P. and Dunaway Associates, L.P.'s officers, directors, partners, employees, agents and Dunaway Associates, L.P.'s Subconsuitants, and any of them, to Client and anyone claiming by, through or under Client, for any and all claims, losses, costs, or damages whatsoever arising out of, resulting from, or in any way related to the Project or this Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability or breach of contract, or warranty express or implied of Dunaway Associates, L.P. or Dunaway Associates L.P.'s officers, directors, partners, employees, agents or Dunaway Associates, L P.'s Subconsultants or any of them, shall not exceed the total compensation received by Dunaway Associates, L.P. under this Agreement. Ill. No Consequential Damages. Notwithstanding any other provision of this Agreement, neither party shall be liable to the other for any consequential damages incurred due to the fault of the other party, regardless of the nature of this fault or whether it was committed by the Client or Dunaway Associates, L.P., their employees, agents, or subconsultants. Oowmentl Consequential damages include, but are not limited to, loss of use and loss of profit. IV, No Duties to Third Parties. The services to be performed by Dunaway Associates, L.P. under this Agreement are intended solely for the benefit of the Client Nothing contained herein shall confer any rights upon or create any duties on the part of Dunaway Associates, L.P. toward any person or persons not a party to this Agreement including, but not limited to any contractor, subcontractor, supplier, or the agents, officers, employees, insurers, or sureties of any of them. V. Claims Limited to Insurance Coverage. The Client and Dunaway Associates, L.P. waive all rights for damages, each against the other and against the contractors, subconsultants, agents, and employees of the other, but only to the extent covered by property insurance during or after construction, except such rights as they may have to the proceeds of such insurance. The Client and Dunaway Assoc'ates, L.P. each shall require similar waivers from their contractors, subconsultants, and agents, VI. General Contractor Duties and Responsibilities. Neither the professional activities of Dunaway Associates, L.P., nor the presence of Dunaway Associates, L.P. or his or her employees and subconsultants at a construction site, shall relieve the General Contractor and any other entity of their obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all portions of the Work of construction in accordance with the contract documents and any health or safety precautions required by arty regulatory agencies, Dunaway Associates, L.P. and his or her 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. The Client agrees that the General Contractor is solely responsible for jobsite safety and warrants that this intent shall be made evident in the Client's agreement with the General Contractor. The Client also agrees that the Client Dunaway Associates, L.P. and Dunaway Associates L.P s Subconsultants shall be indemnified and shall be made additional insureds under the General Contractor's general liability insurance policy. VII. Cancellation, It is understood that this Agreement may be canceled at any time by the Client and payment shall be due based on the method of computation in Section I only on Work performed or expenses incurred to date of cancellation. VIII. Payments and Interest. Client recognizes that prompt payment of Dunaway Associates, L.P.'s invoices is an essential aspect of the overall consideration Dunaway Associates, L P. requires for providing service to Client. Client agrees to pay all charges not in dispute within 30 days of date of invoice. A statement of charges for services will be submitted by the 15'" of each month All accounts past due 60 days from date of invoice shall pay interest at the rate of 18% (1.5% per month), or maximum allowable by law, whichever is lower, of the past due amount per month, 550 Bogs', F:venue. Suite et tort IAD 1 3xoG 76107 =: lel: 817.335.1121 Foy- 81 7.335.7437 S duu3woyossoc,ctes:corr, TANDA iX. Cessation of Services. if Client, for any reason, falls to pay the undisputed portion of Dunaway Associates, L.P.'s invoices within 30 days of invoice date, Dunaway Associates, L.P. has the right to cease work on the project and Client shall waive any claim against Dunaway Associates, L.P. for cessation of services, and shall defend and indemnify Dunaway Associates, L P. from and against any claims for injury or loss stemming from Dunaway Associates, L.P.'s cessation of service. Client shall also pay Dunaway Associates, L.P. the cost associated with premature project demobilization. in the event the project is remobilized, Client shall also pay the cost of remobilization, and shall renegotiate appropriate contract terms and conditions, such as those associated with budget, schedule or scope of service. X. Legal Action. Subject in all respects to the other provisions of this Agreement, in the event legal action is necessary to enforce the payment terms of this Agreement, the prevailing party in any such action shall be entitled to collect any judgment or settlement sums due, plus reasonable attorney's fees, court costs and other reasonable expenses incurred by the prevailing party in connection with such collection action XI. Dispute Resolution and Termination. In the event any bill or portion thereof, is disputed by Client, Client shall notify Dunaway Associates, L.P. within 10 days of receipt of the bill in question, and Client and Dunaway Associates, L.P. shall work together to resolve the matter within 60 days of its being called to Dunaway Associates, L.P.'s attention. If resolution of the matter is not attained within 60 days, either party may terminate this Agreement in accordance with conditions indicated in the termination of agreement clause specified in Section VII. XiI. Mediation. In an effort to resolve any conflicts that arise during the design and construction of the Project or following the completion of the Pro ect, the Client and Dunaway Associates, L.P. agree that all d sputes between them arising out of or relating to this Agreement or the Project shall be submitted to nonbinding mediation unless the parties mutually agree otherwise. The Client and Dunaway Associates, L.P further agree to include a similar mediation provision in all agreements with independent contractors and subconsultants retained for the Project and to require all independent contractors and subconsultants also to include a similar mediation provision in all agreements with their subcontractors, subconsultants, suppliers and fabricators, thereby providing for mediation as the primary method for dispute resolution between the parties to all those agreements. XIII. Surveying Regulations. Land Surveying in the State of Texas is regulated by the Texas Board of Professional Land Surveying, Building Al Suite 156, 12100 Park 35 Circle, Austin, Texas 78753, telephone number (512) 239-5263. XiV. Reimbursable Expenses. Other charges which may apply to the Client's project include: A. B. Documenit Printing and reproduction shall be billed at standard commercial rates. AU direct non -labor expense, including bid advertising, etc., and travel and subsistence for the principals and staff as required for the proper execution of the work, are charged at actual invoice cost. Filing fees paid by Dunaway Associates, L.P. will be charged at cost plus 10%. Travel by passenger vehicles shall be at a rate commensurate with iRS regulations D T ; RMS & CONDITIONS Page 2 of 2 C. For services not offered as a part of Dunaway Associates, L.P.'s normal services, the Client may, at his option, contract directly with the third party for such services or through Dunaway Associates, L.P. if such contracts are made through Dunaway Associates, L P., a service charge of 10% will be added to the net amount of such contracts, XV. Certifications, Guarantees and Warranties. Dunaway Associates, L.P. shall not be required to execute any document that would result in its certifying, guaranteeing or warranting the existence of conditions whose existence Dunaway Associates, L.P, cannot ascertain. XVI. Assignment. Neither party to this Agreement shall transfer, sublet or assign any rights or duties under or interest in this Agreement, including but not limited to monies that are due or monies that may be due without the prior written consent of the other party. Subcontracting to subconsultants, normally contemplated by the Consultant as a generally accepted business practice, shall not be considered an assignment for purposes of this Agreement. XVILMiscellaneous. A. Intellectual Property. The drawings, specifications and any other work products (including but not limited to software programs and electronic media of any description) prepared by Dunaway Associates, L.P. for this project shall remain the property of Dunaway Associates, L.P. and Dunaway Associates, L.P. shall retain all common taw, statutory and other reserved rights including the copyright, where applicable. B. Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter of this Agreement and shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, heirs, successors and assigns. C. Counteroarts. This Agreement shall be executed with one or more separate counterparts, each of which, when so executed, shall, together, constitute and be one in the same instrument, D. Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with the substantive laws of the State of Texas and the parties hereto agree and consent that venue for all purposes shall be in Tarrant County, Texas. E Proposal Expiration. The terms stated in the proposal are valid only if executed by both parties within 90 days from the date of the proposal. F. Free Publicity. Dunaway Associates, L.P. has the right to photograph the above named project and to use the photos in the promotion of the professional practice of Dunaway Associates, L.P. through advertising, public relations, brochures or other marketing materials. Shouid additional photos be needed in the future, the client agrees to provide reasonable access to the project. 550 Battey Avenue, Suite 400 ., Fort Worth, Texas 76107 Tel: 817,335.1 121 Fox: 817,335,7437 e dunawoyossociates.com