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HomeMy WebLinkAboutContract 44164 (2)CITY SECRETARY CONTRACT No. � �1L� � PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("AGREEMENT") is by and between the City of Fort Worth, a Texas municipal corporation, ("CITY") and Dunaway Associates, L.P., ("ENGINEER") (each a "Party" or collectively the "Parties" hereto), and is effective as indicated, below. WHEREAS, the CITY desires to make certain improvements to Park Vista Blvd. in the City of Fort Worth, Tarrant County, Texas, from the future intersection of Park Vista Blvd. at Keller Hicks Rd. approximately 1,652 LF south, which improvements require right-of-way parcel exhibits and legal descriptions for the City' s use in the acquisition of right-of-way for the future extension of road and utility infrastructure for Park Vista Blvd. (the "PROJECT"); and WHEREAS, ENGINEER has the know-how and skill to prepare the necessary right-of- way exhibits and legal description documents for the PROJECT ("ROW DOCUMENTS"); and WHEREAS, CITY will retain the services of ENGINEER to prepare the ROW DOCUMENTS. NOW, THEREFORE, in consideration of the covenants hereinafter set forth, the parties hereto mutually agree as follows: ARTICLE I SCOPE OF SERVICE The ENGINEER is hereby engaged by the City to prepare the ROW DOCUMENTS for the above -described PROJECT. ARTICLE II COMPENSATION A. Fees The CITY agrees to compensate the ENGINEER the amount of $25,000.00 from current funds on an invoice submitted basis. B. Payment for Services The ENGINEER shall provide to CITY monthly invoices, including a summary of the services performed. Payment is due within 30 days after receipt of invoice for each service rendered C. Disputed Billing In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portic ao the b; l l; ng until mutually resolved. If the CITY fails to make payment in full to ENGINEER for billings contested in gc 60 days of the amount due, the ENGINEER may, after giving 7 days' written n ociagtriiMn ti rk WO n ' r r CFW-DUNAWAY ROW Documents Professional Services Agreement Page 1 of 9 02-11-13 POt :30 IN suspend services under this AGREEMENT until paid in full, including interest. 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 III Obligations of the ENGINEER A. General The ENGINI-i;ER will serve as the CITY'S professional representative under this Agreement, providing Professional Engineering consultation and advice and furnishing customary services incidental thereto. B. Standard of Care The standard of care applicable to the ENGINEER'S services will be the degree of skill and diligence nonnally employed in the State of Texas by Professional Engineering performing the same or similar services at the time such services are performed. C. Engineer's Authority The presence or duties of the ENGINEER'S personnel, 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 The ENGINEER and its personnel have no authority to exercise any control over CITY employees in connection with their work. D. Right to Audit 1) ENGIN-i,ER agrees that the CITY shall, until the expiration of three (3) 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 agrees 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 pubhshed in the Texas Administrative Code in effect as of the time copying is performed. E. ENGINEER'S Insurance 1) Insurance coverage and limits* ENGINEER shall provide to the City certificate(s) of insurance documenting policies of the following coverage at minimum limits that are to be in effect prior to commencement of work on the project: Commercial General Liability $1,000,000 each occurrence CFW-DUNAWAY ROW Documents Professional Services Agreement Page 2 of 9 $2,000,000 aggregate Automobile Liability $1,000,000 each accident on a combined single limit or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence A commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non -owned when said vehicle is used in the course of a project. Worker's Compensation Coverage A: Statutory limits Coverage B: Employer s Liability $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee Professional Liability $1,000,000 each claim $2,000,000 aggregate Professional liability shall be written on a claims -made basis and 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) Certificates of insurance evidencing that the ENGINEER has obtained all required insurance shall be delivered to the CITY prior to ENGINEER proceeding with a project. a. 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. b. Certificate(s) of insurance shall document that insurance coverage specified in this agreement are provided under applicable policies documented thereon. c. Any failure on part of the CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements. d. A minimum of forty-five (45) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be CFW-DUNAWAY ROW Documents Professional Services Agreement Page 3 of 9 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 Worth, 1000 Throckmorton St., Fort Worth Texas 76102. e. Insurers for all policies must be authorized to do business in the State of Texas and have a minimum rating of A: VII in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. f. Deductible limits, or self insured retentions, affecting insurance required herein shall be acceptable to the CITY in 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. g. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. h. 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. i. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the CITY approves such exclusions in writing. j. For all lines of coverage underwritten on a claims -made basis, other than Professional Liability, the retroactive date shall be 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. The CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement and all insurance required in this section, with the exception of Professional Liability, shall be written on an occurrence basis. F Independent Engineer The ENGINEER agrees to perfoiui all services as an independent consultant and not a subcontractor, agent, or employee of the CITY. Nothing herein shall be construed as creating a partnership or joint venture between the City and the ENGINEER its officers, agents, employees and consultants, and doctrine of respondent superior has no application as between the City and the ENG1NFER. G. 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 CFW-DUNAWAY ROW Documents Professional Services Agreement Page 4 of 9 will make disclosure in writing of any conflicts of interest that develop subsequent to he signing of this contract and prior to final payment under the contract. Article IV Obligations of the City 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. C. 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 engineers as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with the project schedule included in the ENGINEER. D. 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. E. Litigation Assistance The Scope of Services does not include costs of the ENGINEER for required or requested assistance to support, prepare, document, bnng, 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. F 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 perfoi.uance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate CITY approval. Article VI General Legal Provisions A. Authorization to Proceed ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. CFW-DUNAWAY ROW Documents Professional Services Agreement Page 5 of 9 B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the ENGINEER, whether in hard copy or in electronic form, are instruments of service for a project, whether a 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. 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 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 storage containers, microfilm, electronic data files, and other data storage supplies or services; c.) The time requirements for the ENGINEER to document the work underway at the time the CITY'S termination for convenience so that the work effort is suitable for long time storage. 3) Prior to proceeding with termination services, the ENGINEER will submit to the CITY an itemized statement of all termination expenses. The CITY S approval will be obtained in writing prior to proceeding with termination services. E. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the services of the ENGINEER for the convenience of the CITY In the event of such suspension, delay, or interruption, an equitable adjustment m the ENGINEER'S compensation will be made. CFW-DUNAWAY ROW Documents Professional Services Agreement Page 6 of 9 F. Indemnification 1) In accordance with Texas Local Government Code Section 271.904, the ENGINEER agrees to indemnify and defend the CITY from any loss, cost, or expense claimed by third parties for property damage and bodily injury, including death, caused by the negligence or willful misconduct of the ENGINEER, its employees, officers, and subcontractors in connection with the PROJECT. 2) If the negligence or willful misconduct of both the ENGINEER and the CITY (or a person identified above for whom each is liable) is a cause of such damage or injury, the loss, cost, or expense shall be shared between the ENGINEER and the CITY in proportion to their relative degrees of negligence or willful misconduct as deteiiiiined pursuant to T.C.P. & R. Code, section 33.011(4). G. Assignment Neither party shall assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Interpretation Limitations on liability and indemnities in this AGREEMENT are business understandings between the parties and shall apply to all the different theories of recovery, including breach of contract or warranty, tort including negligence, strict or statutory liability, or any other cause of action, except for willful misconduct or gross negligence for limitations of liability and sole negligence for indemnification. Parties mean the CITY and the ENGINEER, and their officers, employees, agents, and subcontractors. 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. Alternate Dispute Resolution All claims, disputes, and other matters in question between the CITY and ENGINEER arising out of, or in connection with this Agreement or the PROJECT, or any breach of any obligation or duty of CITY or ENGINEER hereunder, may be submitted to mediation. If mediation is unsuccessful, the claim, dispute or other matter in question may be submitted to a court of competent jurisdiction K. 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. L. 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 CFW-DUNAWAY ROW Documents Professional Services Agreement Page7of 9 AGREEMENT and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted during the term of this AGREEMENT 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. CFW-DUNAWAY ROW Documents Professional Services Agreement Page 8 of 9 EXECUTED and EFFECTIVE as of the date last written by a signatory, below. APPROVED: City of Fort Worth Fernando Costa Assistant City Manager DATE: Z4J45 APPROVAL RECOMMENDED: Douglas WdWiersig Director, Transportation/Public Works Department APPROVED AS TO FORM AND LEGALITY: Douglas W. Black Assistant City Attorney ATTEST: Mary J. Kay City Secretary m&c: Date: ENGINEER Dunaway Associates, L.P. Stephen James, P.E. Senior Principal DATE: 4 4.0,.01 ECM 4 ‘Ltk et4ro o0 0? $k ittooca ec-4 41).11:12ftes<asr • (j (( till mcn‘r V FTC. \J17(17: lr E1 «) �_ CFW-DUNAWAY ROW Documents Professional Services Agreement Page 9 of 9