HomeMy WebLinkAboutContract 61845CSC No. 61845
AGREEMENT FOR USE OF AUTOCAD SHAPE FILES
FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM
This AGREEMENT FOR USE OF AUTOCAD SHAPE FILES ("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, Fort Worth Housing Solutions, ("Developer"), and Baird, Hampton & Brown,
Inc. ("Engineer"), each acting by and through its duly authorized representative. City, Developer,
and Engineer are referred to herein individually as a "party" and collectively as the "parties."
WHEREAS, Developer is utilizing the City's Small -Scale Infrastructure Projects program for the
design and construction of small-scale and infill-type public infrastructure improvement projects ("SSIP"),
and Engineer is providing the engineering design for the public infrastructure; and
WHEREAS, in order to reduce Developer's costs, Developer desires to have Developer's
surveyor, Kimley-Horn and Associates, Inc. ("Surveyor") provide Engineer with the AutoCAD shape files
of Developer's property that the Surveyor has prepared in order for Engineer to design the FWHS Hughes
House Community Center project located at 5012 East Rosedale Street ("Project"); and
WHEREAS, City requires certain contractual protections due to Developer's choice to have
Engineer use and rely upon Surveyor's AutoCAD shape files to design the Project;
NOW, THEREFORE, in consideration of the covenants and agreements contained in this
Agreement, City, Developer, and Engineer hereby agree as follows:
SECTION 1
INCORPORATION OF RECITALS
The foregoing recitals are true and correct, form the basis of this Agreement, and are incorporated
into this Agreement by reference.
SECTION 2
USE OF AUTOCAD SHAPE FILES
Developer and Engineer understand and agree that City shall not be liable for Developer's choice
to have Engineer utilize Surveyor's AutoCAD shape files for the Project. Developer further understands
and agrees that if any errors occur as a result of Engineer's use of the AutoCAD shape files or any errors in
the AutoCAD shape files, Developer may incur additional costs related to the design and construction of
the public infrastructure for which Developer will be solely responsible for paying.
SECTION 3
LIABILITY AND INDEMNIFICATION
3.1 IME,MNIFIC ATION — TO THE FULLEST EXTENT PERMITTED BY LA W AND
NOTWITHSTANDING ANY CLAUSE OR PROVISIONS IN THIS AGREEMENT OR ANY OTHER
APPLICABLE AGREEMENT TO THE CONTRARY, DEVELOPER AND ENGINEER, AT THEIR
SOLE COST AND EXPENSE, AGREE TO AND DO HEREBYINDEMNIFY, PROTECT, AND HOLD
HARMLESS CITYAND THE CITY'S OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES,
AND SERPANTS FOR, FROMAND A GAINSTANYAND ALL CLAIMS, LIABILITIES, DAMAGES,
LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND
AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 1 of 6 OFFICIAL RECORD
FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM CITY SECRETARY
FT. WORTH, TX
EXPENSES CAUSED BYENGINEER'S USE OFSURVEYOR'SAUTOCAD SHAPE FILESIN THE
DESIGN OF THE PUBLIC INFRASTRUCTURE FOR THE ENGINEERING DESIGNFOR THE
PROJECT.
3.2 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.
3.3 Developer and Engineer agree to notify City promptly upon the receipt of any claim or
lawsuit brought in connection with any injury, death, or damages related to the use of the AutoCAD shape
files in the preparation of the engineering design for the Project. Developer and Engineer agree to make
their officers, representatives, agents, and employees available to City, at all reasonable times, for any
statements and case preparation necessary for the defense of any claims or litigation arises pursuant to this
Agreement or Engineer's use of Surveyor's AutoCAD shape files.
SECTION 4
RIGHT TO AUDIT
Developer and Engineer agree that the City shall, until the expiration of three (3) years after
acceptance by the City of the public infrastructure for the Project, have access to and the right to examine
and copy any directly pertinent books, digital files, documents, papers, and records involving transactions
relating to this Agreement. The files requested by the City shall be delivered 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 Developer
and Engineer reasonable advance written notice of intended audits, but no less than ten (10) business days.
SECTION 5
TERNIINATION
5.1 Termination for Convenience. This Agreement may be terminated without cause by the
City upon delivery of written notice to Developer and Engineer. This Agreement may be terminated
without cause by the Developer, Engineer and Surveyor thirty (30) days after delivery to the City and all
other parties of written notice of such intent to terminate.
5.2 Other Remedies. Any termination of this Agreement as provided in this Agreement will
not relieve any party from paying any sum or sums due and payable to another party under this Agreement
that remains unpaid and due at the time of termination, or any claim for damages then or previously
accruing against a party pursuant to this Agreement. Any such termination will not prevent any party from
enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law,
or from recovering damages from another 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. Any 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 any party from any obligation it
may have to the another party hereunder and any party may pursue any and all rights and remedies or relief
provided by law, whether or not stated in this Agreement.
SECTION 6
NOTICES
AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 2 of 6
FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM
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 a party may from time
to time notify the other parties 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:
City of Fort Worth
Development Services Department
Attn: Small -Scale Infrastructure Program
100 Fort Worth Trail
Fort Worth, Texas 76102
With conies to:
City Attorney's Office
City of Fort Worth
100 Fort Worth Trail
Fort Worth, Texas 76102
and
City Manager's Office
City of Fort Worth
100 Fort Worth Trail
Fort Worth, Texas 76102
DEVELOPER:
Fort Worth Housing Solutions
Attn: Mary -Margaret Lemons
1407 Texas St.
Fort Worth, TX 76102
ENGINEER:
Baird, Hampton & Brown, Inc.
Attn: Austin Baird, PE 6300
Ridglea Place Suite 700
Fort Worth TX, 76116
Or to such other address as a party may hereafter designate by notice in writing addressed and
mailed or delivered to the other parties hereto.
SECTION 7
VENUE AND CHOICE OF LAW
The parties 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 parties
and any lawful assign or successor of the parties, and are not intended to create any rights, contractual or
otherwise, to any other person or entity.
8.2 No party will subcontract or assign all or any part of its rights, privileges or duties
hereunder without the prior written consent of the other parties, and any attempted subcontract or
assignment of same without such prior consent of the other parties shall be void.
AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 3 of 6
FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM
SECTION 9
INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Developer and Engineer, and their employees,
representative, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as
independent contractors as to all rights and privileges and duties 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, Developer and Engineer shall have the exclusive right to control the details
of their operations and activities and be solely responsible for the acts and omissions of their employees,
representative, agents, servants, officers, contractors, subcontractors, and volunteers. The doctrine of
respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and
employees, and Developer and Engineer and their employees, representative, agents, servants, officers,
contractors, subcontractors, and volunteers. Nothing herein shall be construed as the creation of a
partnership or joint enterprise between any of the parties. It is further understood that the City shall in no
way be considered a Co -employer or a Joint employer of the other parties or any employees, representative,
agents, servants, officers, contractors, subcontractors, and volunteers of the other parties. Neither Developer
nor Engineer, nor any their officers, agents, servants, employees, contactors or subcontractors shall be
entitled to any employment benefits from the City. Developer and Engineer shall be responsible and liable
for any and all payment and reporting of taxes on behalf of themselves, and any of their employees,
representative, agents, servants, officers, contractors, subcontractors, and volunteers.
SECTION 10
AMENDMENTS, CAPTIONS, AND INTERPRETATION
10.1 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 parties, and filed with the City Secretary's Office.
10.2 Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
10.3 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 11
GOVERNMENTAL POWERS AND IMMUNITIES
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 12
AUTHORIZATION, COUNTERPARTS, AND ELECTRONIC SIGNATURES
12.1 By executing this Agreement, Developer's and Engineer's agents affirm that they are
authorized to execute this Agreement and that all representations made herein with regard to their identity,
address, and legal status are true and correct.
AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 4 of 6
FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM
12.2 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 13
SEVERABILITY AND NO WAIVER
13.1 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 any party
in connection with the right and obligations contained in the valid covenants, conditions or provisions of
this Agreement.
13.2 The failure of any 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 14
SOLE AGREEMENT
This Agreement, including any exhibits attached hereto and any documents incorporated herein,
contains the entire understanding and agreement between the parties, and any lawful assign and successor
of a party, 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 15
REVIEW OF COUNSEL
Each party, 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 parry 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.
(SIGNATURES ON FOLLOWING PAGES)
AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 5 of 6
FOR THE 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
Lana �r�4 h� (O�
Dana Burghdoff (Aug 202417�4 CDT)
Dana Burghdoff
Assistant City Manager
Date: Aug 13, 2024
Recommended:
Dalton Harrell (}Aug 13, 202416:29 CDT)
D.J. Harrell
Director Development Services Department
APPROVED AS TO FORM AND LEGALITY:
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Richard McCracken (Aug 13, 202416:36 CDT)
Richard A. McCracken
Sr. Assistant City Attorney
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ATTEST: o&o 09..00
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Jannette Goodall
City Secretary
M&C: NA
Date: NA
Form 1295: NA
DEVELOPER
Fort Worth Housing Solutions
Ma argaret Lemons (Aug 13, 202415:28 CDT)
Mary -Margaret Lemons
President
Date: Aug 13, 2024
ENGINEER
Baird, Hampton, & Brown, Inc.
�D X"Z! -Z� Sa..,i,�
J Austin Baird (Aug 13, 202416:16 CDT)
Austin Baird, PE
Principle, Senior Civil Engineer
Date: Aug 13, 2024
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.
Evelvn Ro erts (Auiz 13, 202416:21 CDT)
Name: Evelyn Roberts
Title: Contract Services Administrator
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM