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HomeMy WebLinkAboutOrdinance No. 01-1269 ORI( INAL CITY OF THE COLONY, TEXAS ORDINANCE NO. AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH KIMLEY-HORN AND ASSOCIATES, INC. FOR ENGINEERING SERVICES RELATING TO A SANITARY SEWER MAIN EXTENSION FOR THE ATHLETIC COMPLEX; ATTACHING THE APPROVED FORM OF CONTRACT AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE BE 1T ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the City Manager of the City of The Colony, Texas is hereby authorized to execute on behalf of the City a contract with Kimley-Hom Associates, Inc. for engineering services relating to a sanitary sewer main extension for the athletic complex. The approved form of contract is attached hereto as Exhibit "A", and made a part hereof for such purposes. SECTION 2. This Ordinance shall take effect immediately from and after its passage by the City Council of the City of The Colony, Texas. DULY PASSED AND APPROVED by the City Council of the City of The Colony, Texas this 15th day of January, 2001. APPROVED: William W Manning, ATTEST: Patti A. Hicks, TRMC, City Secretary APPROVED AS TO FORM: and Associates, Inc. RECEIVED sluite 18oo 12700 Park Central Drive JAN l 5 Z0 01 D.,.s, Texas 75251 January 11,2001 BY ENGINEERING DEPT. City of The Colony 6800 Main Street P.O. Box 560008 The Colony, TX 75056 Attention: Abel Saldafia, P.E., City Engineer Re: Sanitary Sewer Line Office Creek Channel Crossing The Colony, Texas Professional Services Contract Proposal Dear Abel: Kimley-Horn and Associates, Inc. (KHA) is pleased to submit this proposal for professional services to the City of The Colony (Client) for the above-referenced project. This professional services contract proposal was requested from KHA in the City's comment letter for the Office Creek Channel Improvements - Phase I plans dated November 27, 2000. The following outlines our project understanding, specific task comprising a scope of services, and associated fee. Proiect Understandin~ During review of the aforementioned channel improvement plans, the City of The Colony (hereafter referred to as "City") noted the need for sanitary sewer service to the proposed 80.5-acre park site on the north side of Office Creek. To save future construction costs and eliminate disturbing the channel improvements currently under construction, the City requested that a sanitary sewer line be constructed under the proposed channel at this time. This construction will be constructed by the same contractor as a change order to the channel construction contract. · TEL 972 770 1300 FAX 972 230 3820 Scope of Services Task I - Sanitary Sewer Plan & Profile $3,600 (Lump Sum) The scope of design will include a sanitary sewer line that will extend across the proposed Office Creek Channel "A" and a portion of existing Office Creek from the existing 18" trunk line in a northwesterly direction. The line will terminate at a manhole approximately 20-feet into the park property. KHA will coordinate the location of the line and manhole with the park planner. KHA anticipates preparing the following construction plan sheets and will attach necessary City standard details: 1) Title Sheet 2) General Notes 3) Line Plan & Profile 4)... City Standard Details KHA will prepare these plans in accordance with City and NCTCOG standards and specifications. The design will be based on the City of The Colony published criteria at the signed date of this contract. Any effort to design to additional criteria established after the signed date of this contract will be considered Additional Services. KHA will address City comments under this task. Fees and Biilin~ Task 1 will be billed for a fee of Three Thousand Six Hundred dollars ($3,600.00) on a lump sum basis inclusive of expenses. Interim project billing will be monthly and such billings will be due and payable within 30 business days. In the event the invoices are not paid monthly, KHA will add interest to the outstanding balance at a rate of 1.5% per month. If payment of invoices is not kept current on the project, KHA may stop work with 5 business days written notice. KHA will continue work once all invoices are current. (This space intentionally left blank.) Kimley-Horn and Associates, Inc. Closure In addition to thc matters set forth herein, our Agreement shall include and bc subject to, and only to, thc terms and conditions in thc attached Standard Provisions, which arc incorporated by reference. As used in the Standard Provisions, the term "thc Consultant" shall refer to Kimley-Hom and Associates, Inc., and the term "the Client" shall refer to The City of The Colony. If you concur in the foregoing and wish to have us proceed, please sign and return one copy of this contract for our files. The fee stated m this Agreement is valid for sixty (60) days after the date of this letter. We look forward to continuing our work in The Colony. Please do not hesitate to contact us with any questions. Sincerely, KIMLEY HORN AND ASSOCIATES, INC. William G. Pembroke, P.E. Dan F. Grant, E.I. Vice President Project Manager /dfg G:\C IVIL~Lp-2O01 \ColonyO 1 .doc Attachment: Standard Pr~s AGREED to on this,~_~__~'day o[. /J~~ ,2001. ff~c~..' fhcial Seal (Print or Type Name) ~ -..............- / · h ei' """ ....'"'"' /~(As Authofize~l by ~aw)~ ..... (Print or Type Name) and Associates, Inc. KIMLEY-HORN AND ASSOCIATES, INC. STANDARD PROVISIONS (1) Consultant's Scope of Services The Consultant's undertaking to perform professional services extends only to the services specifically described in this Agreement. However, if requested by the Client and agreed to by the Consultant, the Consultant will perform additional services ("Additional Services") hereunder. The Consultant is also authorized, but not required, to perform Additional Services for services deemed appropriate by the Consultant in response to emergencies, unanticipated actions by the Client's contractors, revised regulations, or requirements of authorities, if advance authorization cannot be obtained. The Consultant will notify the Client as soon as practical of the inception of such Additional Services. (2) Client's Responsibilities In addition to other responsibilities described herein or imposed by law, the Client shall: (a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete authority to transmit instructions, receive information, and make or interpret the Client's decisions. (b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project including all numerical criteria that are to be met and all standards of development, design, or construction. (c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data reasonably necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact assessments or statements, zoning or other land use regulations, etc., upon all of which the Consultant may rely. (d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services. (e) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of the Consultant. (f) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary for completion of the Consultant's services. (g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as the Client may require or the Consultant may reasonably request. (h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the scope and timing of the Consultant's services or any defect or noncompliance in any aspect of the project. (i) Bear all costs incident to the responsibilities of the Client. (3) Period of Services Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed copy of this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of conditions permitting continuous and orderly progress through completion of the services. Times for performance shall be extended as necessary for delays or suspensions due to any circumstances that the Consultant does not control. Such a delay or suspension shall not terminate this Agreement unless the Consultant elects to terminate pursuant to other provisions of this Agreement. If such delay or suspension extends for more than six months (cumulatively), the rates of compensation provided for in this Agreement shall be renegotiated. (4) Compensation for Additional Services Unless otherwise agreed to in writing, the Client shall pay the Consultant for the performance of any Additional Services an amount based upon the Consultant's current hourly rates plus an amount to cover certain direct expenses including in-house duplicating, local mileage, telephone calls, postage, and word processing. Other direct expenses will be billed at 1.15 times cost. Technical use of computers for design, analysis, and graphics, etc., will be billed at $25.00 per hour. (5) Method of Payment Compensation shall be paid to the Consultant in accordance with the following provisions: (a) Invoices will be submitted by the Consultant to the Client periodically for services performed and expenses incurred. Payment of each invoice will be due within 25 days of receipt. The Client shall also pay to the Consultant all taxes, if any, whether state, local, or federal, levied with respect to amounts paid hereunder. Interest will be added to accounts not paid within 25 days at 12% per annum beginning on the 25~ day. The Consultant shall be compensated in U.S. dollars. If the Client fails to make any payment due the Consultant for services and expenses within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving 7 days' written notice to the Client, suspend services under this Agreement until all amounts due are paid in full. (b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing. (c) If the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall Kimley-Horn and Associates, Inc. include the cost, at the Consultant's normal hourly billing rates, of the time devoted to such proceedings by its employees. (d) The Client agrees that the payment for services rendered and expenses incurred by the Consultant pursuant to this Agreement is not subject to any contingency or condition. (6) Use of Documents All documents, including but not limited to drawings, specifications and data or programs stored electronically, prepared by the Consultant are related exclusively to the services described in this Agreement. They are not intended or represented to be suitable for partial me or reuse by the Client or others on extensions of this project or on any other project. Any modifications made by the Client to any of the Consultant's documents, or any partial use or reuse of the documents without written authorization or adaptation by the Consultant will be at the Client's sole risk and without liability or legal exposure to the Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefrom Any authorization or adaptation will entitle the Consultant to further compensation at rates to be agreed upon by the Client and the Consultant. (7) Opinions of Cost Became the Consultant does not control the cost of labor, materials, equipment or services fin'nished by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Consultant's services required to bring costs within any limitation established by the Client will be paid for as Additional Services. (8) Termination The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. In the event of any termination, the Consultant shall be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result of such termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the total fee based on the ratio of the amount of the services performed, as reasonably determined by the Consultant, to the total amount of services which were to have been performed, less prior partial payments. (9) Insurance The Consultant is protected by Workers' Compensation insurance, professional liability insurance, and general liability insurance for bodily injury and property damage and will exchange certificates of insurance upon request. If the Client directs the Consultant to obtain increased insurance coverage, or if the nature of the Consultant's activities requires additional insurance coverage, the Consultant will take out such additional insurance, if obtainable, at the Client's expense. (10) Liability In performing its professional services, the Consultant will use that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client. To the fullest extent of the law, and notwithstanding any other provisions of this Agreement, the total liability, in the aggregate of the Consultant and the Consultant's officers, directors, employees, agents, and subconsultants to the Client or to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the services under this Agreement from any cause or causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000, whichever is greater. Under no circumstances shall the Consultant be liable for lost profits or consequential damages, for extra costs or other consequences due to changed conditions, or for costs related to the failure of contractors to perform work in accordance with the plans and specifications. (11) Certifications The Consultant shall not be required to execute any certifications or other documents that in any way might, in the judgment of the Consultant, increase the Consultant's risk or affect the availability, applicability, or cost of its insurance. Kimley-Horn and Associates, Inc, (12) Expenses of Litigation If litigation or arbitration related to the services performed is initiated against the Consultant by the Client, its contractors, or subcontractors, and such proceeding concludes with the entry of a judgment or award favorable to the Consultant, the Client shall reimburse the Consultant its reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceeding. Such expenses shall include the cost, determined at the Consultant's normal hourly billing rates, of the time devoted to the proceedings by the Consultant's employees. (13) Dispute Resolution All claims by the Client arising out of this Agreement or its breach shall be submitted first to mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted but in no event later than allowed by applicable statutes. (14) Hazardous Substances and Conditions (a) Unless stated in the scope of services, it is agreed that the Client does not request the Consultant to perform any services or to make any determinations involving hazardous substances or conditions, as defined by federal or state law. If such services are agreed to, Consultant shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant's services will be limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. (b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services of which the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected portions of its services until the hazardous substance or condition is eliminated. The parties shall decide if Consultant is to proceed with its services and if Consultant is to conduct testing and evaluations, and the parties may enter into further agreements as to the additional scope, fee, and terms for such services. (c) Except to the extent of negligence, if any, on the part of the Consultant in performing services expressly undertaken in connection with hazardous substances and conditions, the Client agrees to hold harmless, indemnify, and defend the Consultant from and against any and all claims, losses, damages, liability, and costs in any way arising out or connected with the presence, discharge, release, or escape of hazardous substances or conditions of any kind, or environmental liability of any nature, in any manner related to services of the Consultant. (15) Construction Phase Services (a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for construction observation, and the Client waives any claims against the Consultant in any way connected thereto. (b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority or responsibility to stop or direct the work of any contractor. The Consultant's visits will be for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its contractors will generally conform to the construction documents prepared by the Consultant. Consultant neither guarantees the performance of contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance with the contract documents. (c) The Client agrees that each contract with any contractor shall state that the contractor shall be solely responsible for job site safety and for its means and methods; that the contractor shall indemnify the Client and the Consultant for all claims and liability arising out of job site accidents; and that the Client and the Consultant shall be made additional insureds under the contractor's general liability insurance policy. (16) Assignment and Subcontracting This Agreement gives no rights or benefits to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and the Consultant. Neither the Client nor the Consultant shall assign or transfer any rights under or interest in this Agreement without the written consent of the other. However, nothing herein shall prevent or restrict the Consultant from retaining independent professional associates, subconsultants, and suppliers as the Consultant may deem appropriate. (17) Confidentiality The Client consents to the use and dissemination by the Consultant of photographs of the project and to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable care to maintain the confidentiality of that material. and Associates, Inc. (18) Miscellaneous Provisions This Agreement is to be governed by the law of the State of Texas. This Agreement shall bind, and the benefits thereof shall inure to, the parties hereto, their legal representatives, executors, administrators, successors and assigns. This Agreement contains the entire and fully integrated agreement between the parties, and supersedes all prior and contemporaneous negotiations, representations, agreements or understandings, whether written or oral. This Agreement can be supplemented or amended only by a written document executed by both parties. Provided, however, that any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant. Any provision in this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions or affecting the validity or enforceability of such provision in any other jurisdiction. The non-enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement.