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HomeMy WebLinkAboutContract 62279Docusign Envelope ID: B76FOB53-C7EA-4FCF-BE08-95BC04094177 CSC No. 62279 ASSIGNMENT AND ASSUMPTION OF AGREEMENT This Assignment and Assumption of Agreement (the "Assignment"), effective as of August 26, 2024 (the "Effective Date"), is by and between Hillwood Alliance Services, LLC, a Texas limited liability company ("Hillwood"), Peloton Land Solutions, Inc., a Texas corporation ("Peloton"), Westwood Professional Services, Inc., a Texas corporation ("Westwood"), and the City of Fort Worth, a home -rule municipal corporation of the State of Texas ("City"). Hillwood, Peloton, Westwood, and the City are referred to herein individually as a "party" and collectively as the "parties." WHEREAS, Peloton Land Solutions, Inc. and Hillwood Alliance Services, LLC entered into a Short Form Professional Services Agreement Lump Sum Services, dated October 6, 2021, for the furnishing of services for the COFW Intermodal Pkwy Full Road Project (the "Agreement"), which is attached as Exhibit A; and WHEREAS, on June 30, 2023, Peloton Land Solutions, Inc. was acquired by Westwood Professional Services, Inc. and Peloton Land Solutions, Inc. desires to assign the Agreement to Westwood Professional Services, Inc. pursuant to the terms and conditions of the Agreement and this Assignment; and WHEREAS, Hillwood Alliance Services, LLC desires to partially assign the Agreement to the City of Fort Worth; NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Definitions. All capitalized terms used in this Assignment but not otherwise defined herein are given the meanings set forth in the Agreement. 2. Assignment and Assumption. Peloton, Westwood, and Hillwood hereby consent, acknowledge and agree to the assignment by Peloton Land Solutions, Inc. to Westwood Professional Services, Inc. of all of Peloton Land Solutions, Inc.'s rights, duties and obligations under the Agreement and this Assignment, and Westwood shall assume all rights, duties and obligations of the Engineer pursuant to the Agreement. 3. Partial Assignment and Assumption. Hillwood hereby assigns, grants, conveys and transfers to City all of Hillwood's right, title and interest in and to the Agreement to the City, except Hillwood shall remain liable for any and all former, current, and future payment obligations for the Engineer's Services under the Agreement. City hereby accepts such assignment and assumes all of Hillwood's duties and obligations under the Agreement, except for any payment obligations. Peloton and Westwood hereby consent to the assignment of the Agreement, except for the payment obligations, from Hillwood to the City. 4. Terms of Agreement. The terms of the Agreement, including but not limited to, the representations, covenants, and agreements are incorporated herein by reference. The parties hereto acknowledge and agree that the representations, covenants, and agreements contained in the Agreement shall not be superseded hereby but shall remain in full force and effect to the full extent provided therein. The parties agree that, except for any payment obligations, the City and Westwood may amend the terms of the Agreement, including executing an OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Docusign Envelope ID: B76FOB53-C7EA-4FCF-BE08-95BC04094177 Addendum to Short Form Professional Services Agreement — Lump Sum Services, a copy of which is attached hereto as Exhibit B. 5. Governine Law. This Assignment shall be governed by and construed in accordance with the internal laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule. 6. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Assignment delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed coy of this Assignment. 7. Further Assurances. Each of the parties hereto shall execute and deliver, at the reasonable request of the other party hereto, such additional documents, instruments, conveyances and assurances and take further actions as such other party may reasonably request to carry out the provisions hereof and give effect to the transactions contemplated by this Assignment. APPROVED: BY: CITY OF FORT WORTH Jesica McEachern Assistant City Manager Date: Nov 5, 2024 ATTEST: Jannette Goodall City Secretary APPROVED: BY: PELOTON LAND SOLUTIONS, INC. Signed by: f . fitq- auJt,v' _E A56E257341B349A... John R Alexander Principal 10/23/2024 r-tQo4oanu Date: ° O 'o ­ol ago=a °°° °°'*F'° oaar aEo as4a BY WESTWOOD PROFESSIONAL SERVICES, INC APPROVAL RECOMMENDED: BY:L-l-'' 71 (Od28,202410:06CDT) Lauren Prieur Director, Transportation and Public Works Signed by - Randy 9FC727FC7A29436... Randy Pogue Vice -President, Land Division Date: 10/23/2024 APPROVED: OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Docusign Envelope ID: B76FOB53-C7EA-4FCF-BE08-95BC04094177 BY HILLWOOD ALLIANCE SERVICES,INC Eric Elrod (Oct 25, 202409:49 CDT) By: Eric Elrod Title: Senior VP Date: Oct 25, 2024 APPROVED AS TO FORM AND LEGALITY -9�, BY: Richard McCracken (Nov 1, 202416:12 CDT) Richard A McCracken Sr. Assistant City Attorney Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. a �110--�6 Bradley M Radovich, PE Project Manager SHORT FORM PROFESSIONAL SERVICES AGREEMENT LUMP SUM SERVICES THIS IS AN AGREEMENT effective as of: Between — HILLWOOD ALLIANCE SERVICES. LLC (HAS) and PELOTON LAND SOLUTIONS, Inc. (Engineer). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: CoFW Intermodal Pkwv Full Road (Project). Project Number: Owner Number: Engineer's Services under this Agreement are generally identified as follows: PELOTON LAND SOLUTIONS, Inc. (PLS) will - Identified in Exhibit A. — Consulting Effort - $427,500 Reimbursables $ 15,000 Total Fee $442,500 Basis of Payment —Lump Sum A. Using the procedures set forth in this agreement, Owner shall pay Engineer as follows: Identified in Exhibit B for Labor, plus state sales tax as applicable. Reimbursable Expenses to include printing, courier, mileage, parking, application fees, etc. B. The portion of the compensation amount billed monthly for Engineer's services will be based upon Engineer's estimate of the percentage of the total services actually completed during the billing period. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Engineer: Engineer: By: Peloton Land `Solutions Inc. �ONAMtAltl P&/( IP.� BY Title ,�G Ohlaz )ignature Y Date Engineer's Firm License Number: TX 12207 HILLWOOD ALLIANCE SERVICES. LLC.. a Texas Limited Liability Company • r��►+d i PELOTON LAND SOLUTIONS, Inc. 9800 Hillwood Parkway, Suite 250, Fort Worth, TX 76177 Phone 817-562-3350 Owner and Engineer further agree as follows: Basic Agreement and Authorization to Proceed: Engineer shall provide, or cause to be provided, the services set forth in this Agreement (contract). If authorized by Owner, or if required because of changes in the Project, Engineer shall furnish services in addition to those set forth above. Execution of this agreement will be recognized as authorization to proceed with professional services. Payment Procedures: Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer's invoice, then the amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day. In addition, Engineer may, after giving 7 days written notice to Owner, suspend services under this Agreement until Engineer has been paid in full all amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. Payments will be credited first to interest and then to principal. Termination: Owner may terminate this contract by giving 14 days written notice to Engineer. In such event Owner shall promptly pay Engineer in full for all work or work related product authorized to -date and performed prior to the date of termination. Successors, Assigns, and Beneficiaries: Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators, and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. The Owner may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement with written notification to the Engineer, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Unless expressly provided otherwise, nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any contractor, subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. In the event that the Engineer is not licensed or registered in another jurisdiction to provide services under this contract, Engineer may assign, with owner's consent, this contract for professional services to an entity related to the Engineer and qualified to provide professional services in that jurisdiction. General Considerations: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineer's services. Subject to the foregoing standard of care, Engineer and its consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. Construction Services: Engineer shall not at any time supervise, direct, control, or have authority over any contractor's work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety at the Project site, nor for any failure of a contractor to comply with laws and regulations applicable to such contractor's furnishing and performing of its work. -This Agreement is to be governed by the law of the state or jurisdiction in which the Project is located. -Engineer neither guarantees the performance of any contractor nor assumes responsibility for any contractor's failure to furnish and perform its work in accordance with the contract between Owner and such contractor. Engineer is not responsible for variations between actual construction bids or costs and Engineer's opinions or estimates regarding construction costs. -Engineer shall not be responsible for the acts or omissions of any contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineer's own employees) at the Project site or otherwise furnishing or performing any construction work; or for any decision made regarding the construction contract requirements, or any application, interpretation, or clarification of the construction contract other than those made by Engineer. Ownership of Documents: All documents, materials and information that are prepared for Client, are the property of Client, and all copies or duplications thereof shall be delivered to Client by Engineer, when requested by Client. Engineer shall receive full payment for services to -date prior to releasing these instruments of service. Engineer may retain one complete set of reproducible copies of all of its instruments of service. Any reuse of the work product outside the original intent or project scope shall be at the owner's sole risk without any legal or liable exposure to the Engineer, its employees, officers, directors, agents, insurers, partners and sub -consultants. Limits of Liability: Notwithstanding any other provision of this Agreement, Neither Party shall have liability to the other Party for contingent, consequential or other indirect damages including, without limitation, damages for loss of use, revenue or profit; operating costs and facility downtime; or other similar business interruption losses, however the same may be caused. During the term of this Agreement, Engineer shall, at its sole expense, secure and maintain in force policies of insurance of the following types: 1. Workers' compensation coverage in accordance with the statutory requirements of the jurisdiction in which services are to be performed 2. Commercial General Liability Insurance, including contractual liability, subject to a limit for bodily injury and property damage combined of at least $1,000,000 combined single limit per occurrence, and an aggregate annual limit of not less than $2,000,000 3. Automobile liability insurance covering owned, hired and non -owned vehicles used by Engineer subject to a limit for bodily injury and property damage combined, of at least $1,000,000 per occurrence. 4. Professional Liability Insurance Policy with limits of $2,000,000 per claim shall be carried by Engineer Dispute Resolution: Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute. If negotiations are unsuccessful in resolving the dispute, then the dispute shall be mediated. If mediation is unsuccessful, then the parties may exercise their rights at law. Direct Expenses: Direct expenses, including but not limited to, standard mileage rates, material and printing incurred on or directly for the project will be on the basis of actual charges when provided by commercial sources or on the basis of usual commercial charges when furnished by the Engineer. Additional Services: For additional services of Engineer's employees engaged directly on the Project, Owner shall pay Engineer an amount equal to the cumulative hours charged to the Project by each class of Engineer's employee's times standard hourly rates for each applicable billing class; plus reimbursable expenses and Engineer's consultants' charges, if any. Engineer's standard hourly rates are attached as Exhibit A. Attachments: Exhibit A, Engineer's Standard Hourly Rates. Outside technical or professional services and their reimbursable expenses if arranged and invoiced through this agreement shall be reimbursed at cost plus 10-percent. Total Agreement: This Agreement (including any expressly incorporated attachments), constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. PELOTON LAND SOLUTIONS, Inc. 9800 Hillwood Parkway, Suite 250, Fort Worth, TX 76177 Phone 817-562-3350 • - � E L� T Q N 10/6/2021 ' LAND SOLUTIONS CoFW Intermodal Parkway Full Roadway Peloton Land Solutions (PLS) understands the project to be the survey and infrastrucutre civil design of the proposed improvements for approximatley 5200 L.F. of Intermodal Parkway to include 4 lanes (full street) of the divided arterial. The construction plans will be prepared to construct the roadwav in one phase. The proposed improvements extend from the intersection of Old FM156 to the BNSF Intermodal facility. The design for the north lanes of Intermodal Pkwy from Old FM156 to New FM156 have already been designed and reviewed by the City of Fort Worth (2017). That previous design will be incorporated into this plan set. Project also includes the improvements to the traffic signal at FM156 and Intermodal Parkway intersection. BASIS OF COMPENSATION: Intermodal - 5,200 L.F. (4-Lanes) LUMP SUM ITEMS Construction Documents: Design Topo Survey $6,000.00 Subsurface Utility Locates $40,000.00 Intermodal Pkwy. - Final Drainage Study $15,000.00 Intermodal Pkwy. - 4 Lane Divided Roadway (+/- 5200' from Old FM156 to Intermodal Yard) $240,000.00 * Incorporates existing design for north lanes of Intermodal Pkwy from Old FM156 to New FM156 * Includes new design for south lanes of Intermodal Pkwy from Old FM156 to New FM156 * Includes new design for Intermodal Pkwy from New FM156 to the BNSF Facility * Includes new design for full intersection Traffic Signal Design - FM156 & Intermodal Parkway $15,000.00 TxDOT Coordination & Permitting for Signalized Intersection $5,000.00 (1) ROW Plat $5,000.00 SW P3 $3,000.00 Technical Specifications / Contract Book $5,000.00 Legal Descriptions / Easements (Assumed 4) $6,000.00 Prepare / Process CFA - City of Fort Worth $3,500.00 Total Estimated Fee $343,500.00 HOURLY ITEMS (NOT TO EXCEED W/O PRIOR AUTHORIZATION) Construction Phase Services (Hourly Estimates) Construction Phase Services (Pre-Con/Mtgs/RFI/As-Built/Walk) $50,000.00 Franchise Utility Coordination $10,000.00 HCF Coordination Fee $3,000.00 Design Meeting/COFW Coordination (8) $6,000.00 Total Construction Phase Services $69,000.00 Total Estimated INFRA Fee $412,500.00 Est. of Reimbursables $10,000.00 Page 1 of 2 INTERMODAL PKWY. CoFW . I� E L � T � N 10/6/2021 LAND SOLUri DNS TOTAL LUMP SUM ESTIMATED INFRASTRUCTURE FEE $343,500.00 TOTAL HOURLY ESTIMATED INFRASTRUCTURE FEE $69,000.00 ESTIMATE OF REIMBURSABLE EXPENSES (DOES NOT INCLUDE SALES TAX) $10,000.00 BASIS OF COMPENSATION: "LANDSCAPE & IRRIGATION FOR OFFSITE INFRASTRUCTURE" LUMP SUM ITEMS Landscape & Irrigation Services: Landscape Schematic and Design Development $2,500.00 Landscape Construction Documents $5,000.00 Irrigation Construction Documents and Consulting (Subcontract) $2,500.00 Total Landscape & Irrigation Services $10,000.00 HOURLY ITEMS (NOT TO EXCEED W/O PRIOR AUTHORIZATION) Construction Phase Services (Hourly Estimate) Const.Phase Services (Pre -Con / Mtgs / RFI / As -Built / Walk) $5,000.00 Total Construction Phase Services $5,000.00 TOTAL LUMP SUM ESTIMATED LANDSCAPE & IRRIGATION FEE $10,000.00 TOTAL HOURLY ESTIMATED LANDSCAPE & IRRIGATION FEE $5,000.00 ESTIMATE OF REIMBURSABLE EXPENSES (DOES NOT INCLUDE SALES TAX) $2,500.00 REIMBURSABLE EXPENSES: EXCLUSIONS: 1. Preparation of flood studies, LOMR, CLOMR - None Anticipated 2. Design of pump houses, pump stations or other water delivery feature 3. Design of retaining walls, screening walls paved areas. 4. Geotechnical investigations or soil gradation analysis or recommendations 5. Services of other special consultants 6. Irrigation design or design of special structures not identified as standard 7. Legal descriptions or closing documents not identified in original scope 8. Structural Paving sections to be provided by others. 9. Survey Construction Staking 10. Non-standard photometric streetlight designs. DELIVERABLE TO PLS: Prior to starting the design of the proposed improvement the following information, data or documents will be delivered to PLS: 1. The associated legal documents for all encumbrances (old and new) along or near the proposed 2. A hard copy of the existing work product prepared by others. 3. An estimated timeline for production, permitting, and construction. 4. Rights to access the property(ies) along the proposed alignment and site as representatives of Peloton Land Solutions. 5. Geotechinical Report / Analysis - Structural Paving Sections Page 2 of 2 INTERMODAL PKWY. CoFW T s,Csowt, v9su m rot 112A6 map% WACC i ""n1v- A -419111 -r 4ATED wkm f.P�gA►xC�T -lb NSW Fir► Kto ? , cooss.w G - wx.- ea .ld1y 't] — bJiB MVtIA1..GOOM 2 t,A..,ES (pp.Aci PeuoNsnucr)---pWxs1 1.1MOMPI.Al 116 tM -Z UWES+ 11JUV W (11" Cobsr6�ulw�-'1 T£ r',td. vE — ar mUehrE ui1Ltri E,cM5twJ ( UYA.6& ( SG. W-1.5D sernco) SITE StAWD*O& LOAD i 0010.s0 14 = -M, I l o LOCATION IMP K19 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F ADDENDUM TO SHORT FORM PROFESSIONAL SERVICES AGREEMENT LUMP SUM SERVICES BETWEEN THE CITY OF FORT WORTH AND WESTWOOD PROFESSIONAL SERVICES, INC. This Addendum to Short Form Professional Services Agreement — Lump Sum Services ("Addendum") is entered into by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas ("City"), and Westwood Professional Services, Inc. ("Engineer"), for a project generally described as: Intermodal Parkway, City Project No. 103332 ("Project"). City and Engineer are referred to herein individually as a "party" and collective as the "parties". Recitals WHEREAS, Hillwood Alliance Services, LLC ("HAS") and Peloton Land Solutions, Inc. ("Peloton") entered into a Short Form Professional Services Agreement — Lump Sum Services executed on or about October 1, 2021 for a project described therein as CoFW Intermodal Pkwy Full Road ("Agreement"); and WHEREAS, HAS, Peloton and Engineer executed an Assignment and Assumption of the Agreement (the "Assignment") whereby Peloton assigned, granted conveyed and transferred to Engineer all of Peloton's rights, duties and obligations under the Agreement and Assignment; and WHEREAS, pursuant to the Assignment, HAS assigned, granted, conveyed and transferred to City all of HAS's right, title and interest in and to the Agreement to the City, except HAS remains liable for any and all former, current, and future payment obligations for Engineer's Services under the Agreement and City accepted such assignment and assumed all of HAS's duties and obligations under the Agreement, except for any payment obligations; and WHEREAS, City and Engineer find it necessary to execute this Addendum to the Agreement to clarify the duties and responsibilities of the City and Engineer; NOW, THEREFORE, for and in consideration of the covenants and conditions contained herein, and in the Agreement, the City and Engineer do hereby agree to the following, and to amend the Agreement as follows: Article I Amendment of Agreement; Addendum Controlling City and Engineer agree that the Agreement is hereby amended to incorporate the terms and conditions of this Addendum. To the extent of any conflict between the terms and City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 1 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F conditions in this Addendum and the terms and conditions of the Agreement, the terms and conditions in this Addendum shall be controlling. Article II Scope of Services (1) Engineer hereby agrees to perform professional services as set forth in this Addendum and the Scope of Services, attached hereto as Attachment "A" ("Services"). These Services shall be performed in connection with the Project. (2) Additional services, if any, will be memorialized by an amendment to the Agreement. (3) All reports, whether partial or complete, prepared under the Agreement, including any original drawings or documents, whether furnished by City, its officers, agents, employees, consultants, or contractors, or prepared by Engineer, shall be or become the property of City, and shall be furnished to the City, prior to or at the time such services are completed, or upon termination or expiration of Agreement. Article III Compensation Engineer shall be compensated by HAS for all Services performed pursuant to the Agreement. Engineer shall submit all invoices directly to HAS. Acceptance by Engineer of payments from HAS shall release City from all claims or liabilities under the Agreement for anything related to, performed, or furnished in connection with the Services for which payment is made. Article IV Term The term of the Agreement shall commence on the Effective Date and shall continue until the completion of the subject project pursuant to the schedule, whichever occurs first, unless terminated in accordance with the terms of the Agreement. Unless specifically otherwise amended, the original term shall not exceed five years from the original effective date. Article V Standard of Care The paragraph of the Agreement titled "General Considerations" is amended in its entirety to be and read as follows: Standard of Care: Engineer shall perform the Services with the professional skill and care ordinarily provided by competent engineers practicing under the same or similar circumstances City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 2 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F and professional license. Engineer and its consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. Article VI Engineer's Subcontractors The last paragraph of the Section of the Agreement titled "Construction Services" is amended in its entirety to be and reads as follows: - Engineer shall not be responsible for the acts or omissions of any contractor, subcontractor, or supplier, or of any other agents or employees, or of any other persons (except Engineer's own employees and Engineer's own subcontractors) at the Project site or otherwise furnishing or performing any construction work; or for any decision made regarding the construction contract requirements, or any application, interpretation, or clarification of the construction contract other than those may by Engineer. Article VIII Independent Contractor Engineer shall operate as an independent contractor and not as an officer, agent, servant, or employee of City. Engineer shall have exclusive control of and the exclusive right to control the details of the work to be performed hereunder and of all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondent superior shall not apply as between City and Engineer, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Engineer. Article IX Professional Competence Work 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. Article X Indemnification City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 3 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F ENGINEER SHALL INDEMNIFY OR HOLD HARMLESS THE CITY AGAINST LIABILITY FOR ANY DAMAGE COMMITTED BY THE ENGINEER OR ENGINEER'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE ENGINEER EXERCISES CONTROL TO THE EXTENT THAT THE DAMAGE IS CAUSED BY OR RESULTING FROM AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER. CITYIS ENTITLED TO RECOVER ITS REASONABLE ATTORNEY'S FEES IN PROPORTION TO THE ENGINEER'S LIABILITY. Article XI Insurance Engineer shall not commence work under the Agreement until it has obtained all insurance required under Attachment B and City has approved such insurance. Article XII Transfer or Assignment Engineer, its lawful successors and assigns, shall not assign, sublet or transfer any interest in the Agreement without prior written consent of City. Article XIII Right to Audit (1) Engineer agrees that City shall, until the expiration of three (3) years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Engineer involving transactions relating to the Agreement. Engineer agrees that City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Engineer reasonable advance notice of intended audits. (2) Engineerfurther agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontractor agrees that City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor(s), involving transactions to the subcontract, and further, that City shall have access during normal working hours to all subcontractor facilities, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this article. City shall give Engineer and any subcontractor reasonable advance notice of intended audit. City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 4 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F (3) Engineer and subcontractor(s) agree to photocopy such documents as may be requested by City. City agrees to reimburse Engineer for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. Article XIV Observe and Comply Engineer shall at all times observe and comply with all federal, state, and local laws and regulations and with all City ordinances and regulations which in any way affect the Agreement and the work thereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. ENGINEER AGREES TO INDEMNIFYAND HOLD HARMLESS CITYAND ALL OF ITS OFFICERSAND EMPLOYEES FROM AND AGAINST ALL CLAIMS OR LIABILITY TO THE EXTENT CAUSED BY THE VIOLATION OF ANY SUCH ORDER, LAW, ORDINANCE, OR REGULATION, WHETHER IT BE BY ITSELF OR ITS EMPLOYEES OR ITS SUBCONTRACTOR(S). Article XV Immigration Nationality Act Engineer shall verify the identity and employment eligibility of its employees and employees of all subcontractor(s) who perform work under the Agreement, including completing the Employment Eligibility Verification Form (1-9). Upon request by City, Engineer shall provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under the 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 CITYAND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR DIRECT LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ENGINEER, ENGINEER'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Engineer, shall have the right to immediately terminate Agreement for violations of this provision by Engineer. Article XVI Venue and Jurisdiction If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of the 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. The Agreement shall be construed in accordance with the laws of the State of Texas. City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 5 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F Article XVII Contract Construction/No Waiver The parties acknowledge that each Party and, if it so chooses, its counsel, have reviewed and revised this Addendum and that the normal rule of contract construction, to the effect that any ambiguities are to be resolved against the drafting party, must not be employed in the interpretation of the Agreement, this Addendum, or any amendments or exhibits thereto. The failure of City or Engineer to insist upon the performance of any term or provision of the Agreement or to exercise any right granted therein shall not constitute a waiver of City's or Engineer's respective right to insist upon appropriate performance or to assert any such right on any future occasion. Article XVIII Severability The provisions of the Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of the Agreement or the Addendum, or the application thereof to any person or circumstance, shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of the Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of the Agreement to other persons or circumstances shall not be affected thereby and the Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. Article XIX Notices Notices required pursuant to the Agreement are to be provided to the other Party by hand -delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: City of Fort Worth: City of Fort Worth Attn: Bradley Radovich Transportation & Public Works 200 Texas Street 76102 With a copy to: City Manager's Office City of Fort Worth City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 6 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F 100 Fort Worth Trail Fort Worth, Texas 76102 Engineer: Westwood Professional Services Attn: Kole Weber 9800 Hillwood Pkwy., Suite 250 Fort Worth, Texas 76177 With a copy to: Westwood Professional Services, Inc. Attn: General Counsel 2805 North Dallas Parkway, Suite 150 Plano, Texas 75093 Email: legal@westwoodps.com Article XX Headings The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of the Agreement. Article XXI Attachments, Schedules and Counterparts This Addendum may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. The following attachments are attached to this Addendum and are incorporated by reference into the Agreement: Attachment A - Scope of Services Attachment B — Insurance Requirements [SIGNATURES ON FOLLOWING PAGE] City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 7 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F Duly executed by each party's designated representative to be effective on the date subscribed by the City's designated Assistant City Manager ("Effective Date"). BY: CITY OF FORT WORTH Jesica McEachern Assistant City Manager Date: ATTEST: Jannette Goodall City Secretary APPROVAL RECOMMENDED: Lauren Prieur, P.E. Director, Transportation & Public Works BY: ENGINEER Westwood Professional Services, Inc. Signed by: 9FC797FC7A29436_. Randy Pogue FORMTEXT vice President, Land Division Date: 10/14/2024 City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 8 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F APPROVED AS TO FORM AND LEGALITY Richard A. McCracken Sr. Assistant City Attorney No M&C Required Form 1295: N/A Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Bradley Radovich, P.E. Senior Professional Engineer City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 9 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F ATTACHMENT A SCOPE OF SERVICES The Services Engineer shall provide to the City shall include, but are not limited to, the following: 1. Attend the preconstruction meeting to be scheduled by the City. 2. Review materials and other construction submittals as necessary. 3. Assist with review of construction progress payments. 4. Visit the construction site periodically, as requested by City staff, or a minimum of every other week, to monitor progress and inspect construction for conformance with construction documents. 5. Issue construction progress reports as requested by City staff. 6. Review contractor's Request for Information (RFI) and recommend action to City as appropriate. Provide clarification and/or additional or revised design drawings, quantity checks or any other materials necessary to address RFI's. 7. Review contractor's Change Order Requests and recommend action to the City as appropriate. 8. Attend final inspection and assist the City with issuing the correction punch list. 9. Upon completion of construction of the Roadway Improvements, provide the City with as -built drawings in conformance with City standards and specifications. 10. Assist with project close-out for final City Acceptance. City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 10 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F ATTACHMENT B STANDARD INSURANCE REQUIREMENTS (1) INSURANCE LIMITS a. Commercial General Liability — Insured shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance as follows: $1,000,000 each occurrence $2,000,000 aggregate If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this Project or location. City shall be included as an additional insured with all rights of defense under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to City. The Commercial General Liability insurance policy shall have no exclusions or endorsements that would alter or nullify: premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained within the policy, unless City specifically approves such exclusions in writing. ii. Insured waives all rights against City and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with Agreement. b. Business Auto — Insured shall maintain business auto liability and, if necessary, commercial umbrella liability insurance as follows: $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Such insurance shall cover liability arising out of "and auto", including owned, hired, and non -owned autos, when said vehicle is used in the course of Insured's business and/or the Project. If Insured owns no vehicles, coverage for hired or non -owned autos is acceptable. City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 11 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F Insured waives all rights against City and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by Insured pursuant to this Agreement or under any applicable auto physical damage coverage. c. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee Insured waives all rights against City and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer's liability or commercial umbrella insurance obtained by Insured pursuant to this Agreement. d. Professional Liability (Errors & Omissions) — Insured shall maintain professional liability insurance as follows: $1,000,000 — Each Claim Limit $2,000,000 — Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be written on a claims -made basis, and maintained for the duration of the contractual agreement and for five (5) years following completion of services provided. The policy shall contain a retroactive date prior or equal to the Effective Date of the Agreement or the first date of services to be performed, whichever is earlier. An annual certificate of insurance shall be submitted to City to evidence coverage. (2) GENERAL INSURANCE REQUIREMENTS a. Certificates of insurance evidencing that Insured has obtained all required insurance shall be attached to Agreement concurrent with its execution. Any failure to attach the required insurance documentation hereto shall not constitute a waiver of the insurance requirements. b. Applicable policies shall be endorsed to name City as an Additional Insured, as its interests may appear, and must afford the City the benefit of any defense provided by City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 12 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F the policy. The term City shall include its employees, officers, officials, and agents as respects the contracted services. Applicable policies shall each be endorsed with a waiver of subrogation in favor of City with respect to the Project. c. Certificate(s) of insurance shall document that insurance coverage limits specified in this Agreement are provided under applicable policies documented thereon. Insured's insurance policy(s) shall be endorsed to provide that said insurance is primary protection and any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. Insured's liability shall not be limited to the specified amounts of insurance required herein. d. 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. City must approve in writing any alternative coverage for it to be accepted. e. A minimum of thirty (30) days' notice of cancellation or material change in coverage shall be provided to City. A ten (10) days' notice shall be acceptable in the event of non-payment of premium. f. 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 as determined by the City's Risk Management division. g. Any deductible or self -insured retention in excess of $25,000 that would change or alter the requirements herein is subject to approval in writing by City, if coverage is not provided on a first -dollar basis. City, at its sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to City. h. In the course of the Agreement, Insured shall report, in a timely manner, to City's Risk Management Department with additional notice to the Contract Compliance Manager, any known loss or occurrence which could give rise to a liability claim or lawsuit against City or which could result in a property loss. City shall be entitled, upon its request and without incurring expense, to review Insured's insurance policies including endorsements thereto and, at City's discretion, Insured may be required to provide proof of insurance premium payments. Lines of coverage, other than Professional Liability, underwritten on a claims -made basis, shall contain a retroactive date coincident with or prior to the date of this Agreement. The certificate of insurance shall state both the retroactive date and that the coverage is claims -made. k. Coverages, whether written on an occurrence or claims -made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the Project until final payment and termination of any coverage required to be maintained after final payments. City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 13 of 14 Docusign Envelope ID: D813ACBF-D69A-4CD9-99BE-5858D3F56B9F City shall not be responsible for the direct payment of any insurance premiums required by Agreement. m. Subcontractors of Insured shall be required by Insured to maintain the same or reasonably equivalent insurance coverage as required for Insured. Upon City's request, Insured shall provide City with documentation thereof. City of Fort Worth, Texas Intermodal Parkway Addendum to Short Form Professional Services Agreement — Lump Sum Services Page 14 of 14 103332-EPAG-Intermodal Assumption Agreement Interim Agreement Report Created: 2024-10-24 By: Andrea Munoz (Andrea.Munoz@fortworthtexas.gov) Status: Out for Signature Transaction ID: CBJCHBCAABAA058PxQ57EtAYnzcQwY19dpmXsg9GSz8P Agreement History 2024-11-01 Agreement history is the list of the events that have impacted the status of the agreement prior to the final signature. A final audit report will be generated when the agreement is complete. "103332-EPAG-Intermodal Assumption Agreement" History Document created by Andrea Munoz (Andrea.Munoz@fortworthtexas.gov) 2024-10-24 - 8:49:51 PM GMT- IP address: 204.10.90.100 Document emailed to eric.elrod@hillwood.com for signature 2024-10-24 - 8:59:53 PM GMT s Agreement modified by Andrea Munoz (Andrea.Munoz@fortworthtexas.gov) 2024-10-24 - 9:02:22 PM GMT Email viewed by eric.elrod@hillwood.com 2024-10-25 - 2:46:58 PM GMT- IP address: 165.225.216.239 [° Agreement modified acknowledged by eric.eirod@hillwood.com 2024-10-25 - 2:47:12 PM GMT CSC Signer eric.eirod@hillwood.com entered name at signing as Eric Elrod 2024-10-25 - 2:49:20 PM GMT- IP address: 165.225.216.239 40 Document e-signed by Eric Elrod (eric.eirod@hillwood.com) Signature Date: 2024-10-25 - 2:49:22 PM GMT - Time Source: server- IP address: 165.225.216.239 C. Document emailed to Bradley Radovich (Bradley.Radovich@fortworthtexas.gov) for signature 2024-10-25 - 2:49:23 PM GMT Email viewed by Bradley Radovich (Bradley.Radovich@fortworthtexas.gov) 2024-10-25 - 3:05:59 PM GMT- IP address: 204.10.90.100 FoRTWORTH, I P—e'b' Adobe Acrobat Sign Document e-signed by Bradley Radovich (Bradley.Radovich@fortworthtexas.gov) Signature Date: 2024-10-25 - 3:06:20 PM GMT - Time Source: server- IP address: 204.10.90.100 Document emailed to Lissette Acevedo (Lissette.Acevedo@fortworthtexas.gov) for filling 2024-10-25 - 3:06:23 PM GMT s Email viewed by Lissette Acevedo (Lissette.Acevedo@fortworthtexas.gov) 2024-10-28 - 1:16:16 PM GMT- IP address: 204.10.90.100 Q, Form filled by Lissette Acevedo (Lissette.Acevedo@fortworthtexas.gov) Form filling Date: 2024-10-28 - 1:16:29 PM GMT - Time Source: server- IP address: 204.10.90.100 Document emailed to Lauren Prieur (Lauren.Prieur@fortworthtexas.gov) for signature 2024-10-28 - 1:16:31 PM GMT "`--Email viewed by Lauren Prieur (Lauren.Prieur@fortworthtexas.gov) 2024-10-28 - 3:04:35 PM GMT- IP address: 108.145.130.51 Document e-signed by Lauren Prieur (Lauren.Prieur@fortworthtexas.gov) Signature Date: 2024-10-28 - 3:06:03 PM GMT - Time Source: server- IP address: 108.145.130.51 Document emailed to Richard McCracken (Richard.McCracken@fortworthtexas.gov) for signature 2024-10-28 - 3:06:05 PM GMT FoRTWORTH, I P—e'b' Adobe Acrobat Sign FORT WORTH. Routing and Transmittal Slip Transportation & Public Works Department DOCUMENT TITLE: Intermodal Assumption Agreement M&C: NA CPN: 103332 CSO: NA DOC#: 1 Date: To: Name Department Initials Date Out 1. Eric.Elrod@Hillwood.com Hillwood E Oct 25, 2024 2. Brad Radovich TPW k Oct 25, 2024 3. Lissette Acevedo TPW- A Oct 28, 2024 4. Lauren Prieur TPW Oct 28, 2024 5. Richard McCracken Legal M RM Nov 1, 2024 6. Jesica McEachern ACM ow Nov 5, 2024 7. Jannette Goodall CSO R'� Nov 5, 2024 DOCUMENTS FOR CITY MANAGER'S SIGNATURE: All documents received from any and all City Departments requesting City Manager's signature for approval MUST BE ROUTED TO THE APPROPRIATE ACM for approval first. Once the ACM has signed the routing slip, David will review and take the next steps. NEEDS TO BE NOTARIZED: DYES NNo RUSH: ❑YES ❑No SAME DAY: ❑YES ❑No NEXT DAY: ❑YES ❑No ROUTING TO CSO: ❑YES ❑No Action Required: ❑ As Requested ❑ For Your Information ® Signature/Routing and or Recording ❑ Comment ❑ File ❑ Attach Signature, Initial and Notary Tabs Return To: bradlev.radovich (a4FortWorthTexas.2ov at ext. 7817 for pick up when completed. Thank you! Note to Reviewers This is first of two documents routing related to the Intermodal Parkway in which Fort Worth assumes the Engineering agreement between Peloton as designer and Hillwood to design Improvements to Intermodal Parkway between Old Blue Mound and the Santa Fe rail yard, now CPN 103332. Scope details and indemnity details are detailed in an addendum to the agreement, which is the second document that will route, which references this document.