HomeMy WebLinkAboutContract 54467 CSC No. 54467
DESIGN PROCUREMENT AGREEMENT
FOR
GARRETT FAMILY PARTNERS—FOREST HILL SEWER SURVEY
This DESIGN PROCUREMENT AGREEMENT ("Agreement") is entered into by and
between the City of Fort Worth("City"),a home-rule municipal corporation of the State of Texas
("City"), acting herein by and through, its duly authorized Assistant City Manager, and Garrett
Family Partnership,Ltd.a Texas limited liability company("Developer")acting by and through
its duly authorized representative. City and Developer are referred to herein individually as a party
and collectively as the parties.
Recitals
WHEREAS, Developer desires to perform a survey to determine existing capacity for
potential infrastructure improvements to benefit the City of Fort Worth, Texas for a project
generally referred to as Forest Hill Sewer Survey("Project")as further described in Exhibit A; and
WHEREAS, City desires to participate in the Project in order to determine capacity of the
sewer main through Forest Hill; and
WHEREAS, City currently has perpetual and irrevocable rights to use a portion of the
sewer main capacity through Forest Hill; and
WHEREAS,the capacity of the sewer main through Forest Hill is unverified and City and
Developer desire to increase flows; and
WHEREAS, City and Developer desire to enter into this Design Procurement Agreement
in order to accomplish the goals of the Parties; and
WHEREAS, Developer has determined that Dunaway Associates, L.P. ("Design
Consultant") should perform the work for the Project based on demonstrated competence and
qualification to perform the Design Consultant services for a fair and reasonable price; and
WHEREAS, City staff have reviewed the scope, fee and schedule for the Project and find
them to be fair and reasonable; and
WHEREAS, Developer will initially fund the costs of the Project and City will reimburse
Developer for the City's portion of the Project at the maximum amount of$12,167.00; and
WHEREAS, Developer shall not earn any fees based upon the City's participation in this
Agreement;
NOW, THEREFORE, for and in consideration of the above recitals and the mutual
covenants and agreements herein contained, the City and Developer agree as follows:
OFFICIAL RECORD
CITY SECRETARY
Design Procurement Agreement for Garrett Family Partnership,Ltd.- Pag FT.WORTH, TX
Forest Hill Sewer Survey
SECTION 1
GENERAL REQUIREMENTS
1.1 The Project will generally consist of a survey of approximately 12,500 linear feet of sewer
main within the City of Forest Hill along South Creek between Wichita Street and just east
of Anglin Drive as depicted in Exhibit A which is attached hereto and incorporated herein
by reference. The deliverable will be a strip map overlaid on an existing aerial depicting
rim elevations, pipe sizes, and flow line elevations. Conventional & GPS methods will be
used to collect this information. It is expected that the surveyors will work with the City of
Forest Hill to ensure all manholes along the flow route will be located, accessed, and
surveyed. This scope does not include preparation of as-built sewer plan and profile sheets.
1.2 Developer will retain Dunaway Associates, L.P. as the Design Consultant for the Project.
1.3 City shall have the ultimate right to approve or disapprove the deliverable.
1.4 Upon approval of the deliverable, City shall make a one-time lump sum payment for the
City's portion of the Project in the amount of$12,167.00. City shall not be liable for any
additional amount unless set forth in a written amendment to this Agreement.
SECTION 2
TERMINATION
2.1 Termination. This Agreement may be terminated without cause by either party upon
delivery of written notice to the other party of such intent to terminate.
2.2 Ownership of Plans. City shall own the plans and other documents and work product
Design Consultant creates for the Project. In the event this Agreement is terminated, City
shall have the right to enter into an agreement with Design Consultant to complete Design
Consultant's services for the Project.
2.3 Fiscal Funding Out. Notwithstanding anything to the contrary, if, for any reason, at any
time during the term of the Agreement, the Fort Worth City Council fails to appropriate
funds sufficient for the City to fulfill its obligations under this Agreement, the City may
terminate the portion of the Agreement regarding such obligations to be effective on the
later of. (i) delivery by the City to Developer of written notice of the City's intention to
terminate or (ii) the last date for which funding has been appropriated by the Fort Worth
City Council for the purposes set forth in this Agreement.
SECTION 3
FORCE MAJEURE
3.1 If either Party is unable, either in whole or part, to fulfill its obligations under this
Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of
public enemies; wars; blockades; insurrections; riots; epidemics; public health crises;
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earthquakes; fires; floods; restraints or prohibitions by any court, board, department,
commission,or agency of the United States or of any state;declaration of a state of disaster
or of emergency by the federal, state, county, or City government in accordance with
applicable law; issuance of a Level Orange or Level Red Alert by the United States
Department of Homeland Security; any arrests and restraints; civil disturbances; or
explosions; or some other reason beyond the Party's reasonable control (collectively,
"Force Majeure Event"), the obligations so affected by such Force Majeure Event will be
suspended only during the continuance of such event.
SECTION 4
LIABILITY AND INDEMNIFICATION
4.1 DEVELOPER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL
PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,
INCLUDING DEATH, TO ANYAND ALL PERSONS, OF ANY KIND OR CHARACTER,
WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT
ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF
DEVELOPER, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES.
4.2 DEVELOPER AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS
OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS AGAINST ANY
AND ALL CLAIMS, LAWSUITS, ACTIONS COSTS, AND EXPENSES OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTYDAMAGE OR LOSS
(INCLUDING ALLEGED DAMAGE OR LOSS TO DEVELOPER'S BUSINESS AND
ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING
DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (I)
DEVELOPER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT; OR (II) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF DEVELOPER, ITS OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS(OTHER THAN THE CITY), OR SUBCONTRACTORS
RELATED TO THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE
INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY
LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS
OFFICERS,AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS,AND IN THE
EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH DEVELOPER
AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMPARATIVELYINACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S
GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF
TEXAS.
4.3 Developer's agreement with the Design Consultant shall include a release and indemnity in
favor of the City in substantially the following form:
"DESIGN CONSULTANT SHALL INDEMNIFY, HOLD HARMLESS
AND DEFEND THE CITY OF FORT WORTH AGAINST LIABILITY
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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 DESIGN
CONSULTANT OR DESIGN CONSULTANT'S AGENT,
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER
WHICH THE DESIGN CONSULTANT EXERCISES CONTROL."
SECTION 5
INSURANCE
5.1 Developer shall maintain the insurance requirements set forth in Exhibit `B", which is
attached hereto and incorporated herein for all purposes.
5.2 Developer shall require in its contract with Design Consultant that City is listed as an
additional insured on Design Consultant's insurance policy.
SECTION 6
NONDISCRIMINATION
6.1 Developer shall not engage in any unlawful discrimination based on race, creed, color,
national origin, sex, age, religion, disability, marital status, citizenship status, sexual
orientation or any other prohibited criteria in performing the services under this Agreement.
SECTION 7
VENUE AND CHOICE OF LAW
7.1 Developer and City agree that this Agreement shall be construed in accordance with the
laws of the State of Texas. 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.
SECTION 8
THIRD-PARTY RIGHTS AND ASSIGNMENTS
8.1 The provisions and conditions of this Agreement are solely for the benefit of the City and
Developer, and any lawful assign or successor of Developer, and are not intended to create
any rights, contractual or otherwise, to any other person or entity.
8.2 Developer agrees that it will not subcontract or assign all or any part of its rights,privileges
or duties hereunder without the prior written consent of the City, and any attempted
subcontract or assignment of same without such prior consent of the City shall be void.
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SECTION 9
BINDING COVENANTS
9.1 Subject to the limitations contained herein,the covenants,conditions and agreements made
and entered into by the parties hereunder are declared to be for the benefit of and binding
on their respective successors, representatives and permitted assigns, if any.
SECTION 10
INDEPENDENT CONTRACTOR
10.1 Developer shall perform all work and services hereunder as an independent contractor,and
not as an officer, agent, servant or employee of the City. Developer shall have exclusive
control of, and the exclusive right to control the details of the work performed hereunder,
and all persons performing same, and shall be solely responsible for the acts and omissions
of its officers, agents, employees and subconsultants (or subcontractors). Nothing herein
shall be construed as creating a partnership or joint venture between the City and
Developer, its officers, agents, employees and subconsultants (or subcontractors), and
doctrine of respondent superior has no application as between the City and Developer
SECTION 11
AMENDMENTS, CAPTIONS,AND INTERPRETATION
11.1 Except as otherwise provided in this Agreement, the terms and provisions of this
Agreement may not be modified or amended except upon the written consent of both the
City and Developer.
11.2 Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
11.3 In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more
strongly for or against any party, regardless of the actual drafter of this Agreement.
SECTION 12
GOVERNMENTAL POWERS AND IMMUNITIES
12.1 It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
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SECTION 13
AUTHORIZATION AND COUNTERPARTS
13.1 By executing this Agreement on behalf of Developer,the person signing below affirms that
he or she is authorized to execute this Agreement and that all representations made herein
with regard to the signer's identity, address, and legal status are true and correct.
13.2 This Agreement may be executed in several counterparts, each of which will be deemed an
original,but all of which together will constitute one and the same instrument.
SECTION 14
SEVERABILITY AND NO WAIVER
14.1 It is agreed that in the event any covenant, condition or provision herein contained is held
to be invalid by any court of competent jurisdiction, the invalidity of such covenant,
condition or provision shall in no way affect any other covenant, condition or provision,
and does not materially prejudice either Developer or City in connection with the rights
and obligations contained in the valid covenants, conditions or provisions of this
Agreement.
14.2 The failure of either party to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a waiver of that
party's right to insist upon appropriate performance or to assert any such right on any future
occasion.
SECTION 15
COMPLIANCE WITH LAWS
15.1 This Agreement is subject to all applicable federal, state and local laws, ordinances, rules
and regulations, including, but not limited to, all provisions of the City's Charter and
ordinances, as amended.
15.2 If City notifies Developer or any of its officers, agents, employees, contractors,
subcontractors, licensees,volunteers,or invitees of any violation of such laws, ordinances,
rules or regulations, Developer shall immediately desist from and correct the violation.
SECTION 16
NOTICES
16.1 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, postage prepaid, to the address of the other
party shown below:
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To the City: To Developer:
Fort Worth Water Department
Attn:
200 Texas Street
Fort Worth, Texas 76102
With copies to:
City Attorney's Office
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
And
City Manager's Office
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
SECTION 17
HEADINGS
17.1 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.
SECTION 18
RIGHT TO AUDIT
18.1 Developer agrees that the City shall, until the expiration of three (3) years after final
payment under this Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of the Architect involving transactions
relating to this Agreement. Developer agrees that the City shall have access during normal
working hours to all necessary Developer facilities and shall be provided adequate and
appropriate workspace in order to conduct audits in compliance with the provisions of this
section. The City shall give Developer reasonable advance notice of intended audits.
18.2 Developer shall include in its contract with the Design Consultant a right until the
expiration of three (3) years after final payment under this Agreement, to have access to
and the right to examine any directly pertinent books, documents, papers and records of
Design Consultant involving transactions relating to this Agreement and the agreement
between Developer and Design Consultant.The Design Consultant must agree that the City
shall have access during normal working hours to all necessary Design Consultant
facilities, and shall be provided adequate and appropriate work space, in order to conduct
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audits in compliance with the provisions of this section. The City shall give Design
Consultant reasonable advance notice of intended audits.
SECTION 19
PROHIBITION ON BOYCOTTING ISRAEL
19.1 Developer acknowledges that in accordance with Chapter 2270 of the Texas Government
Code, the City is prohibited from entering into a contract for goods or services with a
company with 10 or more full-time employees that has a value of$100,000 or more that is
to be paid wholly or partly from public funds of the City unless the contract contains a
written verification from the company that it: (1) does not boycott Israel; and (2) will not
boycott Israel during the term of the contract. The term"boycott Israel" has the meaning
ascribed to it by Section 808.001 of the Texas Government Code. The term "company"
has the meaning ascribed to it by Section 2270.001 of the Texas Government Code. By
signing this Agreement, Developer certifies that Developer's signature provides written
verification to the City that Developer:(I)does not boycott Israel;and(2)will not boycott
Israel during the term of this Agreement.
SECTION 20
SOLE AGREEMENT
20.1 This Agreement, including any exhibits attached hereto and any documents incorporated
herein, contains the entire understanding and agreement between the City and Developer,
and any lawful assign and successor of Developer, as to the matters contained herein. Any
prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS THEREOF, the parties have made and executed this Agreement to be
effective on the date signed by the Assistant City Manager.
CITY OF FORT WORTH: DEVELOPER
Garrett Family Partnership, Ltd.
Dana Burghdoff(Sep 11,20?,714:44CDTt
Dana Burghdoff
Assistant City Manager
Date:Sep 14, 2020 Date: August 10, 2020
RECOMMENDED BY:
Chrisi-opher ffarder
Christopher Harder(Sep 9,2020 08:50 CDT)
Christopher P. Harder, PE
WATER DEPARTMENT DIRECTOR
APPROVED AS TO FORM AND LEGALITY:
Richaid A.McCracken(Sep 10,202010:36 CDT)
Richard A. McCracken
Assistant City Attorney a44FaRT a
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Sep 14, 2020
Date
CONTRACT COMPLIANCE MANAGER
By signing,I acknowledge that I am the person responsible
AGREEMENT AUTHORIZATION: for the monitoring and administration of this contract,
including enduring all performance and reporting
M&C: n/a requirements.
Date approved: n/a By:MmaatttKumir(Sep�2 008:44 CDT)
Name:Matt Kusnir,P.E.
n/a Engineering Manager,W/WW Planning and Horizontal
Form 1295: Asset Management
OFFICIAL RECORD
Design Procurement Agreement for Garrett Family Partnership,Ltd.- Page CITY SECRETARY
Forest Hill Sewer Survey
FT.WORTH, TX
EXHIBIT A
(SURVEY EXHIBIT)
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EXHIBIT B
1.01 Duty to Acquire and Maintain. Developer shall ensure that a policy or policies of insurance
are procured and maintained at all times, in full force and effect, to provide coverage of the types
and amounts specified herein, naming the City as an additional insured as set forth herein, and
covering all public risks related to this Agreement. The insurance required hereunder may be met
by a combination of self-insurance and primary and excess policies.
1.02 Types and Amounts of Coverage Required
a. Commercial General Liability:
(1) $1,000,000.00 per occurrence, $2,000,000.00 aggregate, including
coverage for the following: (i)Premises Liability; (ii)independent contractors; (iii)
products/completed operations; (iv) personal injury; (v) contractual liability; (vi)
explosion, collapse, and underground property damage
b. Property Damage Liability:
(1) $1,000,000.00 per occurrence
C. Umbrella Policy
(1) $5,000,000.00
d. Environmental Impairment Liability (EIL) &/or Pollution Liability
(1) $2,000,000 per occurrence
(2) $5,000,000 aggregate
e. Automobile Liability:
(1) $1,000,000.00 Each accident on a combined single-limit basis
f. Worker's Compensation:
(1) As required by law
g. Employer's Liability:
(1) $1,000,000.00 per accident
1.03 Revisions to Required Coverage. At the reasonable recommendation of the City's Risk
Manager, the City may at any time revise insurance coverage requirements and limits required by
this Agreement. Company agrees that within ten (10) days of receipt of written notice from the
City, all such revisions requested by the City will be implemented. The policy or policies of
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insurance shall be endorsed to provide that no material changes in coverage, including, but not
limited to, cancellation, termination, non-renewal, or amendment, shall be made without thirty
(30) days' prior written notice to the City.
1.04 Underwriters and Certificates. The insurers for all policies must be licensed and approved
to do business in the State of Texas. Except for workers' compensation, all insurers must 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. If the rating is
below that required, prior written approval of the City's Risk Management Division is required.
Within ten(10)business days following execution of this License,Developer shall ensure that City
is furnished with certificates of insurance signed by the respective companies as proof that the
types and amounts of insurance coverage required herein have been obtained. In addition,
Developer shall, on demand, provide the City with evidence that it has maintained such coverage
in full force and effect.
1.05 Deductibles. Deductible or self-insured retention limits on any line of coverage required
herein shall not exceed $25,000.00 in the annual aggregate unless the limit per occurrence or per
line of coverage, or aggregate is otherwise approved by the City.
1.06 No Limitation of Liability. The insurance requirements set forth in this section and any
recovery by the City of any sum by reason of any insurance policy required under this License
shall in no way be construed or affected to limit or in any way affect Company's liability to the
City or other persons as provided by this Agreement or law.
1.07 Umbrella or Excess Liability. If insurance policies are not written for specified coverage
limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability
shall follow form of the primary coverage.
1.08 Additional Insured. The City, its officers, employees and volunteers shall be named as an
Additional Insured on the Automobile and Commercial General Liability policies.
1.09 Waiver of Subro ag tion. The insurance shall include a waiver of rights of recovery
(subrogation) in favor of the City of Fort Worth.
1.10 Copies of Policies and Endorsements. City shall be entitled, upon request and without
expense, to receive copies of policies and endorsements thereto and may make any reasonable
requests for deletion or revision or modifications of particular policy terms,conditions,limitations,
or exclusions in order to comply with the requirements of this Agreement except where policy
provisions are established by law or regulations binding upon either of party or the underwriter on
any such policies.
1.11 Certificate of Insurance. Developer shall submit to the City a certificate of insurance
evidencing all required insurance coverage and any applicable endorsements.
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