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HomeMy WebLinkAboutContract 62046AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 1 of 6 FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM 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, Presidio Car Wash Properties, LLC, (“Developer”), Baird, Hampton & Brown (“Engineer”), and Data Point Surveying, (“Surveyor”), each acting by and through its duly authorized representative. City, Developer, Engineer, and Surveyor 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 Surveyor provide Engineer with the AutoCAD shape files of Developer’s property that Surveyor has prepared for Engineer to design of the following project Slappy’s Express Car Wash, located at 9073 Tehama Ridge Pkwy (“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, Engineer, and Surveyor 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, Engineer and Surveyor 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 incorporate 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 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, DEVELOPER, ENGINEER, AND SURVEYOR, AT THEIR SOLE COST AND EXPENSE, AGREE TO AND DO 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, AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 2 of 6 FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES CAUSED BY ENGINEER’S USE OF SURVEYOR’S AUTOCAD SHAPE FILES IN THE DESIGN OF THE PUBILC INFRASTRUCTURE FOR THE ENGINEERING DESIGN FOR 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, Engineer, and Surveyor 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, Engineer, and Surveyor 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, Engineer, and Surveyor 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, Engineer, and Surveyor reasonable advance written notice of intended audits, but no less than ten (10) business days. SECTION 5 TERMINATION 5.1 Termination for Convenience. This Agreement may be terminated without cause by the City upon delivery of written notice to Developer, Engineer, and Surveyor. 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 tothe 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 AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 3 of 6 FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM NOTICES 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: DEVELOPER: City of Fort Worth Presidio Car Wash Properties, LLC Development Services Department Houston Simmons Attn: Small-Scale Infrastructure Program 111 Boland Street Suite 202 200 Texas Street Fort Worth, TX, 76107 Fort Worth, Texas 76102 With copies to: ENGINEER: City Attorney’s Office Bair, Hampton & Brown, Inc. City of Fort Worth Austin Baird, PE 6300 200 Texas Street Ridglea Place Suite 700 Fort Worth, Texas 76102 Fort Worth, TX 76116 and SURVEYOR: City Manager’s Office Data Point Surveying City of Fort Worth Tyler Willis, R.P.L.S #6877 200 Texas Street 12450 Network Blvd Suite 155 Fort Worth, Texas 76102 San Antonio, TX, 78249 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 4 of 6 FOR THE SMALL-SCALE INFRASTRUCTURE PROGRAM SECTION 9 INDEPENDENT CONTRACTOR It is expressly understood and agreed that Developer, Engineer, and Surveyor, and theiremployees, 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, Engineer, and Surveyor 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, Engineer, and Surveyor 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, Engineer, or Surveyor, nor any their officers, agents, servants, employees, contactors or subcontractors shall be entitled to any employment benefits from the City. Developer, Engineering, and Surveyor 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, Engineers, and Surveyor’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 5 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 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. (SIGNATURES ON FOLLOWING PAGES) AGREEMENT FOR USE OF AUTOCAD SHAPE FILES Page 6 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 DEVELOPER Presidio Car Wash Properties, LLC Dana Burghdoff Houston Simmons Assistant City Manager President Date: _______________________ Date: ______________________ Recommended: ENGINEER D.J. Harrell Baird, Hampton, & Brown, Inc. Director Development Services Department APPROVED AS TO FORM AND LEGALITY: Austin Baird, PE Principle Senior Civil Engineer Date: Richard A. McCracken Sr. Assistant City Attorney SURVEYOR ATTEST: Data Point Surveying ______________________________ Jannette Goodall Tyler Willis City Secretary R.P.L.S. Date: ______________________ M&C: NA Date: NA Form 1295:NA 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