Loading...
HomeMy WebLinkAboutContract 61521NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 1 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT BETWEEN THE CITY OF FORT WORTH AND SIMON ENGINEERING & CONSULTING, INC. FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM THIS NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT (“Agreement”) is made and entered into by and between the City of Fort Worth (“City”), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized representative, and SIMON ENGINEERING & CONSULTING, INC. (“Engineer”), a Texas corporation, acting by and through its duly authorized representative. City and Engineer are referred to herein individually as a “party” and collectively as the “parties.” WHEREAS, the City’s Development Services Department has a Small-Scale Infrastructure Projects program for the design and construction of small-scale and infill-type public infrastructure improvement projects (“SSIP”); and WHEREAS, the City requested qualifications from engineering firms interested in providing professional engineering services for the SSIP on an as-needed basis; and WHEREAS, Engineer was selected as one of the firms for the SSIP on the basis of demonstrated competence and qualifications to perform the services for a fair and reasonable price; and WHEREAS, City and Engineer desire to enter into this Agreement for Engineer to provide City with professional engineering services for the SSIP; NOW, THEREFORE, in consideration of the covenants and agreements contained in this Agreement, City and Engineer hereby agree as follows: SECTION 1 CONTRACT DOCUMENTS The contract documents shall include the following: 1.This Non-Exclusive Professional Engineering Services Agreement 2.Exhibit A – Engineering Scope of Services 3.Exhibit B – Compensation 4.Exhibit C – Insurance All Exhibits attached hereto are incorporated herein and are made a part of this Agreement for all purposes. In the event of any conflict between the Exhibits and the terms and conditions of this Agreement, this Agreement shall control. SECTION 2 SCOPE OF SERVICES 2.1 Engineer shall provide City with professional engineering services (“Services”) as more specifically described in the Scope of Services set forth in Exhibit A, which is attached hereto and incorporated herein for all purposes. 2.2 Engineer understands and agrees that the City will award non-exclusive agreements to multiple engineering firms to provide professional engineering services for the SSIP. Engineer further NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 2 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM understands and agrees that the City makes no promise or guarantee of the total amount of work that will be assigned to Engineer pursuant to this Agreement. 2.3 The City shall issue a written task order establishing the services to be performed and the fee to be paid to the Engineer for each project to be completed by Engineer (“Task Order”). Engineer shall perform the Services in accordance with each Task Order issued by the City. The City may issue an amended Task Order to address any changes in the work to be performed after a Task Order has been issued. 2.4 All documents prepared or furnished by Engineer pursuant to this Agreement are instruments of Engineer’s professional service. All information, reports, documents and data, whether partial or complete, prepared under this Agreement, including any original drawings or documents prepared by Engineer, shall be or become the property of City, and shall be furnished to the City upon final payment to Engineer. Any reuse or modification by City or any other person or entity of documents prepared or furnished by Engineer for projects outside of the Task Order for which said documents were prepared, or for completion of the project subject to said Task Order without Engineer’s professional involvement will be at City’s sole risk and without any liability or legal exposure to Engineer. SECTION 3 TERM OF AGREEMENT 3.1 Term. The term of this Agreement shall begin on the date signed by the City’s Assistant City Manager (“Effective Date”) and shall expire one year from the Effective Date (“Term”), unless terminated earlier in accordance with the provisions of this Agreement. This Agreement may be renewed for (4) additional one-year periods upon written agreement of the City and Engineer. City and Engineer shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to: acts of the public enemy, fires, strikes, lockouts, natural disasters, epidemics/pandemics, wars, riots, material or labor restrictions by any governmental authority and/or any other similar causes. SECTION 4 INVOICES AND PAYMENT 4.1 The City shall pay Engineer for Services performed pursuant to each Task Order or amended Task Order issued by the City in accordance with the Price Schedule which is attached hereto as Exhibit B and incorporated herein by reference. Total compensation payable to all engineering firms selected to provide nonexclusive professional engineering services for the SSIP during the Term or any renewal term shall not exceed Two Million Dollars ($2,000,000.00). Each Task Order issued by the City will set forth the fee to be paid to Engineer. Engineer shall not perform any additional services for the City not specified by this Agreement unless the City issues an amended Task Order for the additional services. The City shall not be liable for any additional expenses of Engineer not specified by this Agreement. 4.2 The City of Fort Worth has begun implementing an automated invoicing system. Engineer shall submit all invoices to the City after completing the final design. 4.3 The Engineer will send invoices electronically to the City’s centralized Accounts Payable department invoice email address: supplierinvoices@fortworthtexas.gov. This email address is not NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 3 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM monitored by the City. Engineer shall not send correspondence to this email address. The sole purpose of the supplier invoices email address is to receive and process supplier invoices. 4.4 Engineer shall include the following on the subject line of the e-mail: Engineer name, invoice number, and PO number, separated by an underscore (ex: Example, Inc. 123456 FW013- 0000001234) 4.5 To ensure the system can successfully process each invoice in an expedient manner, Engineer shall adhere to the following requirements: • All invoices must be in either a PDF or a TIFF format. • Image quality must be at least 300 DPI (dots per inch). • Invoices must be sent as an attachment (i.e. no invoice in the body of the email). • One invoice per attachment (includes PDFs). Multiple attachments per email is acceptable but each invoice must be a separate attachment. • Engineer shall not send handwritten invoices or invoices that contain handwritten notes. • Dot matrix invoice format will not be accepted. • The invoice must contain the following information: • Supplier Name and Address; • Remit to Supplier Name and Address, if different; • Applicable City Department business unit# (i.e. FW006) • Complete City of Fort Worth PO number (i.e. the PO number must contain all preceding zeros); • Invoice number; and • Invoice date. • Invoices must be submitted after delivery of the goods or services. 4.6 To prevent invoice processing delays, Engineer shall not send invoices by mail and email. Engineer shall not send the same invoice more than once by email to supplierinvoices@fortworthtexas.gov. To check on the status of an invoice, Engineer shall contact the City Department ordering the goods/services or the Central Accounts Payable Department by email at: ZZ_FIN_AccountsPayable@fortworthtexas.gov. 4.7 If Engineer is unable to send invoices as outlined above, Engineer must send invoices to the City’s centralized Accounts Payable department instead of directly to the individual City department. This will allow the City staff to digitize the invoice for faster processing. If electronic invoicing is not possible, Engineer may send paper invoices to: City of Fort Worth Attn: FMS Central Accounts Payable 200 Texas Street Fort Worth, Texas, 76102 NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 4 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM 4.8 The City’s goal is to receive 100% of invoices electronically so that all supplier payments are processed efficiently. 4.9 If Engineer has questions, please contact the Accounts Payable team at (817) 392-2451 or by email to ZZ_FIN_AccountsPayable@fortworthtexas.gov. 4.10 Engineer will not include Federal, State, or City sales tax in Engineer’s invoices. City will furnish a tax exemption certificate upon Engineer’s request. 4.12 Engineer shall submit type-written or computer printed invoices to the City which include the Engineer’s name, address and telephone number, and identify the Task Order number, project number, the price contained in the Task Order, and the City’s issued purchase order and release number. 4.13 Acceptance by Engineer of each payment shall release City from all claims or liabilities under this Agreement for anything related to, performed, or furnished in connection with the Services for which payment is made, including any act or omission of City in connection with such Services. SECTION 5 LIABILITY AND INDEMNIFICATION 5.1 INDEMNIFICATION – TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY CLAUSE OR PROVISIONS IN THIS AGREEMENT OR ANY OTHER APPLICABLE AGREEMENT TO THE CONTRARY, ENGINEER, AT ITS SOLE COST AND EXPENSE, AGREES TO AND DOES HEREBY INDEMNIFY, PROTECT, AND HOLD HARMLESS CITY AND THE CITY’S OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, AND SERVANTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES CAUSED BY ENGINEER’S ACT OF NEGLIGENCE, INTENTIONAL TORT, OR INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY ENGINEER OR ENGINEER’S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH ENGINEER EXERCISES CONTROL. ANY REIMBURSEMENT BY ENGINEER TO CITY OF REASONABLE ATTORNEY’S FEES IN CONNECTION WITH THIS SECTION SHALL BE IN PROPORTION TO ENGINEER’S LIABILITY. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. 5.2 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 5.3 Engineer agrees to notify City promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages related to Services performed under this Agreement. Engineer agrees to make its officers, representatives, agents, and employees available to City, at all NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 5 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM reasonable times, for any statements and case preparation necessary for the defense of any claims or litigation for which City may be responsible hereunder. SECTION 6 INSURANCE REQUIREMENTS 6.1 Engineer shall abide by the insurance requirements set forth in Exhibit C, which is attached hereto and incorporated herein for all purposes. SECTION 7 STANDARD OF CARE 7.1 Engineer shall perform the Services pursuant to this Agreement: (1) with the professional skill and care ordinarily provided by competent engineers practicing under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer. SECTION 8 RIGHT TO AUDIT 8.1 Engineer 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 copy any directly pertinent books, digital files, documents, papers, and records of Engineer involving transactions relating to this Agreement. Engineer shall deliver files requested by the City, in a format agreed upon by the City, and to a location of the City's choosing, during normal working hours, in order for City to conduct compliance audits. The City shall not be responsible for associated costs. The City shall give Engineer reasonable advance written notice of intended audits, but no less than ten (10) business days. 8.2 Engineer further agrees to include in any contractor and subcontractor agreements hereunder a provision to the effect that the contractors and subcontractors agree that the City shall, until the expiration of three (3) years after final payment under the contract or subcontract, have access to and the right to examine any directly pertinent books, digital files, documents, papers, and records of such contractor or subcontractor involving transactions of the contract or subcontract, and further that Engineer shall deliver contractor and subcontractor files requested by the City, in a format agreed upon by the City, and to a location of the City's choosing, during normal working hours, in order for City to conduct compliance audits. The City shall not be responsible for associated costs. The City shall give the Engineer reasonable advance written notice of intended audits, but no less than ten (10) business days. SECTION 9 TERMINATION 9.1 Termination for Convenience. This Agreement may be terminated without cause by the City upon delivery of written notice to Engineer. This Agreement may be terminated without cause by the Engineer thirty (30) days after delivery to the City of written notice of such intent to terminate. 9.2 Termination for Cause. Unless stated elsewhere in this Agreement, either party shall be in default under this Agreement if either party breaches any term or condition of this Agreement, and this agreement may be terminated if such breach remains uncured after fifteen (15) calendar days following receipt of written notice from the other party referencing this Agreement. NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 6 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM 9.3 Other Remedies. Any termination of this Agreement as provided in this Agreement will not relieve either party from paying any sum or sums due and payable to the opposite party under this Agreement that remains unpaid and due at the time of termination, or any claim for damages then or previously accruing against the other party under this Agreement. Any such termination will not prevent either party from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or fromrecovering damages from the other party for any default under the Agreement. All rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. Either party may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this Agreement. No such termination shall relieve either party from any obligation it may have to the other party hereunder and either party may pursue any and all rights and remedies or relief provided by law, whether or not stated in this Agreement . SECTION 10 LICENSES AND PERMITS 10.1 Engineer shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for its operations. SECTION 11 NOTICES 11.1 All notices required or permitted under this Agreement may be given to a party personally or by mail, addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: ENGINEER: City of Fort Worth Simon Engineering & Consulting, Inc. Development Services Department Attn: Voranique V. Simon Attn: Miscellaneous Contracts 10602 Samantha Drive 200 Texas Street Frisco, TX 75035 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 Or to such other address as such party may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 7 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM SECTION 12 NONDISCRIMINATION 12.1 Engineer 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 any employment decisions relating to this Agreement, and Engineer represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. SECTION 13 VENUE AND CHOICE OF LAW 13.1 Engineer 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 14 THIRD-PARTY RIGHTS AND ASSIGNMENTS 14.1 The provisions and conditions of this Agreement are solely for the benefit of the City and Engineer, and any lawful assign or successor of Engineer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 14.2 Engineer 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. SECTION 15 BINDING COVENANTS 15.1 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 16 INDEPENDENT CONTRACTOR 16.1 It is expressly understood and agreed that Engineer and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Engineer shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. Engineer acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and employees, and Engineer and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. Engineer further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Engineer. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Engineer or any employees, NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 8 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM representative, agents, servants, officers, contractors, subcontractors, and volunteers of Engineer. Neither Engineer, nor any officers, agents, servants, employees, contactors or subcontractors of Engineer shall be entitled to any employment benefits from the City. Engineer shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. SECTION 17 AMENDMENTS, CAPTIONS, AND INTERPRETATION 17.1 Except as otherwise provided in this Agreement, the terms and provisions of this Agreement may not be modified or amended except upon execution of a written amendment to this Agreement executed by the Assistant City Manager and Engineer and filed with the City Secretary’s Office. 17.2 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 17.3 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 18 GOVERNMENTAL POWERS AND IMMUNITIES 18.1 It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities, except as provided by law, including, but not limited to, Texas Local Government Code § 271.152. SECTION 19 AUTHORIZATION AND COUNTERPARTS AND ELECTRONIC SIGNATURES 19.1 By executing this Agreement, Engineer’s agent affirms that he or she is authorized by Engineer or its general partner to execute this Agreement and that all representations made herein with regard to Engineer’s identity, address, and legal status are true and correct. 19.2 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. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. SECTION 20 SEVERABILITY AND NO WAIVER 20.1 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 does not materially prejudice either Engineer or City in connection with the right and obligations contained in the valid covenants, conditions or provisions of this Agreement. 20.2 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. NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 9 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM SECTION 21 APPLICABLE LAWS 21.1 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. Services performed by Engineer shall comply in all aspects with all applicable local, state and federal laws and with all applicable, standards, codes, rules and/or regulations promulgated by local, state and national boards, bureaus and agencies. Approval to proceed by City of Engineer’s work or work product shall not constitute or be deemed to be a release of the responsibility and liability of Engineer or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its performance of the Services. 21.2 If City notifies Engineer or any of its officers, agents, employees, contractors, or subcontractors, of any violation of such laws, ordinances, rules or regulations, Engineer shall immediately desist from and correct the violation. SECTION 22 SOLE AGREEMENT 22.1 This Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the City and Engineer, and any lawful assign and successor of Engineer, 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. SECTION 23 PROHIBITION ON BOYCOTTING ISRAEL 23.1 Engineer acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract 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 for goods or services 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 terms “boycott Israel” and “company” has the meanings ascribed to those terms by Chapter 2271 of the Texas Government Code. To the extent that Chapter 2271 of the Government Code is applicable to this Agreement, by signing this Agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Agreement. SECTION 24 PROHIBITION ON BOYCOTTING ENERGY COMPANIES 24.1 Engineer acknowledges that in accordance with Chapter 2276 of the Texas Government Code the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 10 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM SECTION 25 PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION INDUSTRIES 25.1 Engineer acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Engineer certifies that Engineer’s signature provides written verification to the City that Engineer: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. SECTION 26 COMPLIANCE WITH PUBLIC INFORMATION ACT REQUESTS 26.1 The requirements of Subchapter J, Chapter 552, Government Code, may apply to this Agreement and Engineer agrees that the Agreement can be terminated if Engineer knowingly or intentionally fails to comply with a requirement of that subchapter. Engineer acknowledges that section 552.371 of the Texas Government Code applies to this Agreement if: (1) this Agreement has a stated expenditure of at least $1 million in public funds for the purchase of good or services by the City; or (2) this Agreement results in the expenditure of at least $1 million in public funds for the purchase of goods or services by the City in a fiscal year of the City. To the extent that section 552.371 of the Texas Government Code applies to this Agreement, Engineer shall comply with section 552.372 of the Texas Government Code by: (1) preserving all contracting information relating to this Agreement as provided by the records retention requirements applicable to the City for the duration of the Agreement; (2) promptly providing the City any contracting information related to this Agreement that is in the custody or possession of Engineer on request of the City; and (3) on completion of the Agreement, either (a) providing at no cost to the City all contracting information related to the Agreement that is in the custody or possession of Engineer; or (b) preserving the contracting information relating to the Agreement as provided by the retention requirements application to the City. SECTION 27 IMMIGRATION NATIONALITY ACT 27.1 Engineer shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Engineer shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Engineer shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Engineer employee who is not legally eligible to perform such services. ENGINEER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ENGINEER OR ENGINEER’S EMPLOYEES. City, upon written notice to Engineer, shall have the right to immediately terminate this Agreement for violations of this provision by Engineer. SECTION 28 REVIEW OF COUNSEL NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 11 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM 28.1 City and Engineer, and if they so choose, their attorneys, have had the opportunity to review and comment on this document; therefore any rule of contract construction or interpretation that would normally call for the document to be interpreted as against the drafting party shall not apply in interpretation of this Agreement, and each section, portion, and provision of this Agreement shall be construed solely on the basis of the language contained therein, regardless of who authored such language. SECTION 29 MINORITY BUSINESS ENTERPRISE COMPLIANCE 29.1 The City’s Diversity and Inclusion Office has determined that a business equity participation goal will not be required for this Agreement. (SIGNATURES ON FOLLOWING PAGE) NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 12 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM IN WITNESS WHEREOF,the parties have executed this to be effective on the date signed by the City’s Assistant City Manager. CITY OF FORT WORTH ENGINEER Dana Burghdoff Voranique V. Simon, PE Assistant City Manager President Date: _______________________ Date: ______________________ Recommended: D.J. Harrell Director Development Services Department APPROVED AS TO FORM AND LEGALITY: Richard A. McCracken Sr. Assistant City Attorney ATTEST: ______________________________ Jannette Goodall City Secretary M&C: 24-0187 Date: 03/19/2024 Form 1295: 2024-1118510 Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including all performance and reporting requirements. Name: Evelyn Roberts Title: Contract Services Administrator NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 13 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM EXHIBIT A ENGINEERING SCOPE OF SERVICES Engineer shall provide the City with engineering services for the City’s Small-Scale Infrastructure Projects Program (SSIP), which provides expedited design and construction services tailored specifically to Developer-led, small-scale, infill projects. The categories of infrastructure in the SSIP include, but are not limited to, water and sewer extensions, taps and meters, drainage improvements, paving restoration (in accordance with the utility cut policy), driveways, sidewalks, pedestrian lights, and streetlight installations as specified by the subdivision and/or zoning ordinance. Common SSIP project types encompass: Replacement of existing water and/or sanitary sewer mains (800 feet or less; all sizes and depths); Extension of existing water and/or sanitary sewer mains (800 feet or less; all sizes and depths); Water and sanitary sewer services (all sizes and depths); Construction of right turn lanes for streets, alleys and/or sidewalks (800 feet or less); Commercial/residential driveways; Streetlight and Pedestrian light installation; Stormwater pipe, excluding detention outlets and culverts (800 feet or less); Stormwater inlets; Landscaping (800 feet or less) & Corresponding Erosion Control; and Incidental design of Traffic Control Plans Project limits for the SSIP shall generally not exceed 800 linear feet of infrastructure. However, project limits of up to 1,600 feet may be allowed by the City on a case-by-case basis if only one type of infrastructure is involved. As part of the SSIP program, the City will contract with construction contractors to construct the improvements. The City will contract with each Developer and the City will collect design and construction costs from the Developer and make payments to the Engineer and Construction Contractors. Engineer’s scope of work encompasses comprehensive participation in the project lifecycle, ensuring adherence to City standards and successful project completion. Engineer’s services shall include participation in the Intake, Proposal, Design, and Construction phases of the SSIP, as detailed below and to be identified on a Task Order Basis. NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 14 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM Intake/Proposal Phase: In the Intake/Proposal phase, Engineer is responsible for assessing the viability of each proposed project. This can include conducting necessary site visits to evaluate project feasibility. Engineer's duties also include reviewing project-specific documents, addressing any inquiries from the City, and preparing a proposal for each project. The Intake/Proposal stage is initiated once a project is approved and entered into the SSIP Accela Interface. At this point, the City confirms the project's readiness for a proposal and assigns the task to Engineer in Accela or through email. This notification indicates that Engineer can commence work on the project. During this stage, Engineer has access to, and can download, all relevant project information from Accela to start crafting their proposal. The proposal prepared by Engineer must include a detailed Level of Effort (“LOE”) for inclusion in the Task Order as a scope definition, a LOE cost determination with an amount not to exceed Fee for Project Design which encompasses construction phase services and Record Drawing Preparation, and a projected schedule for the design phase services for the project. These documents must be added to Accela within 5 Working Days of the City assigning the task to Engineer in Accela or through email. For any required clarifications, Engineer can communicate with the City through the Accela system. The foregoing documents, which are crucial for Task Order Execution, must be submitted using the templates provided by the City. The Engineer will not charge a Fee for their Proposal Preparation. Design Phase: The Design Phase is initiated once the Client remits payment to the City for Design Services. Once the City has received the payment, the City will route the Task Order for Engineer and Client Signatures, then execute the Task Order, with a Project Number, a City Secretary Number, and a Task Order Number, so Engineer can begin with the Design Services. Following the issuance of a Task Order by the City, the Engineer shall complete the design and construction package according to the City's Task Order, uploading design documents to Accela for the City and Client’s review. The City will coordinate with the Developer on any changes to the Design, which the City will then present to Engineer during a Design Review Meeting. Engineer will then address design changes during the meeting, furnishing the revised drawing at the end of the meeting, so that additional Design Review Meetings are not required. In the event that Engineer cannot furnish the revised drawings at the meeting, an extension may be permitted on a case-by-case basis, at the discretion of the Sr. Capital Projects Officer. Engineer’s responsibilities shall include the preparation of comprehensive plans, all utility coordination, the development of a construction estimate with listed specifications, and three (3) physical copies of plans for each Task Order. Engineer’s responsibilities may also include field verification, prior to construction. For each project, Engineer shall identify all necessary easements, encroachments, and any waivers required from the design manual. Engineer shall provide effective communication and NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 15 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM facilitation to the City and shall ensure all work strictly complies with the City of Fort Worth’s policies, ordinances, design criteria manuals, and construction standards to guarantee the successful completion of each project in SSIP. The City does not intend to allow projects in the SSIP that require encroachment agreements, easements, or waivers from the City’s design manuals. However, if it is determined that a project accepted into the SSIP requires an encroachment agreement, easement, or waiver, Engineer shall be responsible for informing the City and providing supporting information for the City to review. This may result in an amended task order, in which case, Engineer would submit an amended task order request to the City and the City will coordinate with the Client. Engineer shall actively engage in resolving discrepancies, making adjustments during the design process, and be available to meet with the City during the design phase. Engineer shall communicate directly with the City’s SSIP staff, through Accela, regarding discrepancies and adjustments. Engineer shall not communicate directly with the Developer or property owner during any part of the SSIP without the prior consent of the City’s Sr. Capital Projects Officer. Engineer shall invoice the City every 60 Days, and shall submit a final design phase invoice at the end of the completed design. City shall pay Engineer with the funds deposited with the City by the Developer. Construction Phase: The scope of the Construction Phase services are to be specified on a Task Order Basis as a Level of Effort, not to exceed amount. Engineer shall respond to all Requests for Information (RFIs), change orders, and communications from the City. Engineer shall perform site visits, as necessary, to visually inspect and confirm that each project is constructed in accordance with the engineering plans. During the construction phase, Engineer must provide essential construction support services, including, but not limited to, reviewing submittals, managing requests for information, reviewing change orders, overseeing and completing TDLR filings and approvals, and promptly responding to inquiries from contractors. Communication throughout the construction phase will be housed in Accela, eBuilder, or alternative software. The City will be responsible for overseeing construction inspections and payment applications throughout the duration of the construction project. On a project specific basis, Engineer may be required to perform these tasks. At the construction close-out, Engineer shall submit record drawings to the City. During the construction phase, Engineer shall submit invoices to the City every 60 days. Upon completion of construction and acceptance by the City, the Engineer shall submit a final construction phase invoice to the City for construction phase engineering services. The City shall pay the Engineer for construction phase engineering services using the funds deposited with the City by the Developer. 3. The Deliverables & Recommended Project Schedule are to be identified on a Task Order Basis. The following timelines are the goals for the program: NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 16 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM Feasibility Study (5 Working Days) Construction Documents & Bid Tab (5 - 10 Working Days) RFIs (1 Working Day) Record Drawings (1 Week) Payment Applications (5 Working Days) Submittal Review (3 Working Days) NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 17 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM EXHIBIT B PRICE SCHEDULE SPECIFIED RATE PAYMENT BASIS DIRECT LABOR PROVIDER: Simon Engineering & Consulting, Inc. Labor Categories Hourly Base Rate Hourly Contract Rate (Years 1 and 2)* Hourly Contract Rate (Years 3 and 4)* Hourly Contract Rate (Year 5)* Principal $90.00 $263.90 $273.40 $283.25 Engineer (Project Manager) $85.00 $249.24 $258.21 $267.51 Quality Manager $85.00 $249.24 $258.21 $267.51 Engineer (Project Senior) $70.00 $205.26 $212.65 $220.30 Engineer (Project) $67.00 $196.46 $203.53 $210.86 Engineer (Design) $48.00 $140.75 $145.81 $151.06 Engineer (Intern) $27.00 $79.17 $82.02 $84.97 CADD Operator - Senior $35.00 $102.63 $106.32 $110.15 CADD Operator $30.00 $87.97 $91.13 $94.41 CADD Operator - Junior $27.00 $79.17 $82.02 $84.97 AdministrativeClerical $30.00 $87.97 $91.13 $94.41 * Escalation is effective on the first day of the month following the beginning of years 3 and 5 from the date of contract execution Contract rates include labor, overhead and profit NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 18 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM EXHIBIT C INSURANCE 1. The Engineer shall assume all risk and liability for accidents and damages that may occur to persons or property during the prosecution of work under this Agreement. The Engineer shall deliver to the City, prior to the commencement of Services, a certificate of insurance documenting the insurance covered required herein 2. Policies shall have no exclusions by endorsements which nullify the required lines of coverage, nor decrease the limits of said coverage unless such endorsements are approved by the City. 3. Insurance shall provide the following coverages and amounts: a. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance at the following limits: $100,000 Each Accident $500,000 Disease – Policy limit $100,000 Disease – Each Employee This coverage may be written as follows: Workers’ Compensation and Employers’ Liability coverage with limits consistent with statutory benefits outlined in the Texas Workers’ Compensation Act and minimum policy limits for Employers’ Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. b. Commercial General Liability Insurance including Explosion, Collapse, and Underground Coverage shall be provided as follows: $1,000,000 Each Occurrence $2,000,000 Annual Aggregate Coverage shall include but not be limited to the following: premises/operations, independent Engineers, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and as comprehensive as the current Insurance Services Office (ISO) policy. c. Professional Liability (Errors and Omissions) $1,000,000 - Each Claim Limit $1,000,000 - Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage must be claims-made, and maintained for the duration of the contractual agreement and for two (2) years following completion of Services provided. An annual certificate of insurance must be submitted to City to evidence coverage. NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 19 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM d. Auto Liability Insurance shall be provided as follows: $1,000,000 Combined Single Limit Each Accident A commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non-owned. 4. At each renewal period, Engineer shall furnish the City, with a current certificate of insurance documenting the required insurance within ten (10) days after accepting the renewal. 5. Applicable policies shall also be endorsed to name the City of Fort Worth as an additional insured, as its interests may appear (ATIMA). 6. ADDITIONAL INSURANCE REQUIREMENTS a. The City, its officers, employees and servants shall be endorsed as an additional insured on Engineer’s insurance policies excepting employer’s liability insurance coverage under Engineer’s workers’ compensation insurance policy and Professional Liability Insurance Policy. b. Certificates of insurance satisfactory to the City and Worker’s Compensation Affidavit must be received before Engineer can begin work. Failure to supply and maintain such insurance shall be a breach of the Agreement. Engineer shall provide complete copies of all insurance policies required by this Agreement. Certificates of insurance must be supplied to: City of Fort Worth Development Services Department Attn: Miscellaneous Projects 200 Texas Street Fort Worth, Texas 76102 c. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. Each insurance policy shall be endorsed to provide the City a minimum 30 days’ notice of cancellation, non- renewal, and/or material change in policy terms or coverage. A ten (10) day notice shall be acceptable in the event of non-payment of premium. d. 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. e. Deductible limits, or self-funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved by the City. 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 of the Engineer shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. NON-EXCLUSIVE PROFESSIONAL ENGINEERING SERVICES AGREEMENT Page 20 of 20 DEVELOPMENT SERVICES SMALL-SCALE INFRASTRUCTURE PROGRAM h. City shall not be responsible for the direct payment of insurance premium costs for Engineer’s insurance. i. Engineer’s insurance policies, with the exception of the Workers Compensation and Professional Liability 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. While the Agreement is in effect, Engineer shall report, in a timely manner, to the City any known loss occurrence that could give rise to a liability claim or lawsuit or which could result in a property loss. k. Engineer’s liability shall not be limited to the specified amounts of insurance required herein. City of Fort Worth, Texas Mayor and Council Communication DATE: 03/19/24 M&C FILE NUMBER: M&C 24-0187 LOG NAME: 06SSIP ENGINEERING CONTRACTS AND APPROPRIATION SUBJECT (ALL) Authorize Non-Exclusive Agreements with Baird Hampton & Brown, Inc.; Kimley Horn and Associates, Inc.; Westwood Professional Services, Inc. dba Peloton Land Solutions, Inc., a Wesfinrood Company; Shield Engineering Group, PLLC; and Simon Engineering & Consulting, Inc. in a Combined Annual Amount Up to $2,000,000.00 for the Initial Term with Four One-Year Renewal Options for the Development Services Department, Adopt Appropriation Ordinance, and Amend the Fiscal Years 2024-2028 Capital Improvement Program RECOMMENDATION: It is recommended that the City Council: 1. Authorize non-exclusive agreements with Baird Hampton & Brown, Inc.; Kimley Horn and Associates, Inc.; Westwood Professional Services, Inc. dba Peloton Land Solutions, Inc., a Westwood Company; Shield Engineering Group, PLLC; and Simon Engineering & Consulting, Inc. in a combined annual amount up to $2,000,000.00 with four one-year renewal options for engineering services for the Development Services Department's Small-Scale Infrastructure Program; 2. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the General Capital Projects Fund in the amount up to $14,700,000.00, subject to receipt of funds, for the purpose of funding the Small-Scale Infrastructure Program programmable project (City Project No. P00151); and 3. Amend the Fiscal Years 2024-2028 Capital Improvement Program. DISCUSSION: The purpose of this Mayor and Council Communication (M&C) is to authorize execution of engineering agreements and appropriate funds necessary to start the Development Services Department's Small-Scale Infrastructure Program (Program). The Program is being created to provide engineering design and construction services for the installation of small-scale or infill developer-led projects, including 800 feet or fewer of water, sewer, storm services, sidewalk and four (4) or fewer pedestrian/streetlight installations. The engineering and construction cost will be funded entirely by Developers. The Development Services Department conducted a Request for Qualifications to establish a standing list of qualified engineering firms which the Development Services Department will use to provide engineering services for projects in the Small-Scale Infrastructure Program. The Request for Qualifications was advertised in the Fort Worth Star-Telegram on September 21, 2022 and September 28, 2022. The City received fourteen (14) responses. An evaluation panel consisting of representatives from the Development Services Department reviewed and scored the submittals based on the following criteria: (a) project understanding (30%); (b) project team and experience (45%); (c) related local projects (15%); and (d) readiness to proceed (10%). The scores are listed in the table below. No guarantee was made that a specific amount of services would be requested. Bidders Evaluation Factors a b c d Total Score Rank Shield Engineering Group, 30 45 15 10 100 1 PLLC Peloton Land Solution, Inc, a 30 45 15 10 100 2 Westwood Company Baird, Hampton & Brown 30 44 15 10 99 3 Kimley Horn 30 42.5 15 10 97.5 4 Simon Engineering & 2g 44 14 10 97 5 Consulting, Inc. LJA Engineering 29 44 14 9.5 96.5 6 Cobb Fendley 29 42.5 13.5 9.5 94.5 7 Mas Consulting Engineering 26 44 14.5 10 94.5 8 & Consulting Inc. Multatech 27.5 42.5 15 9 94 9 Bartlett & West 26 45 10 7.5 88.5 10 James DeOtte Engineering, 30 40 10 7.5 87.5 11 Inc. DEC Engineering Excellence 27.5 40 10 7.5 85 12 Arredondo, Zepeda & Brunz, LLC RLG Consulting Engineers f�•i��•". 12.5 40 11.5 9 45 14.5 9 E:�C3 E:�il 13 14 After evaluation, the panel concluded that Baird Hampton & Brown, Inc.; Kimley Horn and Associates, Inc.; Westwood Professional Services, Inc. dba Peloton Land Solutions, Inc., a Wesfinrood Company; Shield Engineering Group, PLLC; and Simon Engineering & Consulting, Inc are the most qualified engineering firms for the Program. To facilitate the administration of the Small-Scale Infrastructure Program, the attached appropriation ordinance is necessary. The ordinance appropriates the full projected annual amount of up to $14,700,000.00 in the General Capital Projects Fund, subject to receipt of funds, for the purpose of funding the Small-Scale Infrastructure Program programmable project (City Project No. P00151). Having a full year's appropriation authority will support awarding the current design and engineering contracts as well as annual contracts for related construction services, which are currently out for bid. The appropriation is subject to receipt of funds from developers, which will prevent over spending with movement of spending authority to a child project contingent on the actual receipt or availability of funds, ensuring that it is tied to the funds received for each project. The authority granted by the attached ordinance is subject to certain restrictions. Specifically, the total amount of all transfers cannot exceed the annual appropriation for the programmable project, and each transfer is contingent upon the receipt of funds from the developer. Given the mid-year start of the program, it's projected that the actual receipts and appropriations for Fiscal Year 2024 will be in the neighborhood of $7,375,000.00. Funding for this project was not included in the Fiscal Years 2024-2028 Capital Improvement Program (CIP) because funding for the program had not been determined at the time of its development. The actions in this M&C will amend the Fiscal Years 2024-2028 Capital Improvement Program as approved in connection with Ordinance 26453-09-2023. Fund FY 2024 Budget Change Revised Name Appropriations Authority Increase FY2024 � Budget Small-Scale Infrastructure This Program - $0.00 M&C �14,700,000.00 $14,700,000.00 City Project No. P00151 � This task order contract will serve current and future capital projects as-needed, and a funds availability verification will be performed by Development Services Contract Compliance Managers prior to task order assignment. FUNDING: The maximum combined annual amount allowed under these engineering and design agreements will be $2,000,000.00; however, the actual amount used will be based on the needs of the department and the available budget. DVIN BE: Small Scale Infrastructure Program received a waiver for the Program as there will not be any fiscal City Participation, it does not meet Ordinance, Section 20-368 requirements. AGREEMENT TERMS: Upon City Council approval, the agreements shall begin upon execution and expire one year from that date. RENEWAL TERMS: The agreements may be renewed for four additional one-year terms. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. ADMINISTRATIVE CHANGE ORDER: An administrative change order or increase may be made by the City Manager to the amount allowed by relevant law and the Fort Worth City Code and does not require specific City Council approval as long as sufficient funds have been appropriated. Staff intends to go out to bid for the construction contractors in April 2024 and an M&C for the selection of the contractors June 2024. FISCAL INFORMATION / CERTIFICATION: The Director of Finance certifies that upon approval of the above recommendations and adoption of the attached appropriation ordinance, funds will be deposited into the General Capital Projects Fund as appropriated for the Small-Scale Infrastructure Program programmable project. The Development Services Department (and Financial Management Services) is responsible for the collection and deposit of funds due to the City. Prior to any expense being incurred, the Development Services Department also has the responsibility to validate the availability of funds. Submitted for City Manaaer's Office by: Dana Burghdoff 8018 Originating Business Unit Head: Additional Information Contact: D.J. Harrell 8032 Ty Thompson 2120 Evelyn Roberts 7838