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HomeMy WebLinkAboutResolution No. 06-013 RESOLUTION NO. 06- 0/3 ORIGINAL A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE PROFESSIONAL SERVICES CONTRACT BY AND BETWEEN THE CITY OF THE COLONY AND SPRING BROOK PLANNING GROUP FOR LAND USE PLANNING AND FORCASTING, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City and Consultant have entered into an agreement such that the Consultant is to provide the following services: Professional Services for Land Use Planning and Forecasting Related to Amending the Comprehensive Plan and Implementation; and WHEREAS, the City has determined that it is in the best interest of the City to enter into the Contract with Spring Brook Planning Group, which is attached hereto and incorporated herein by reference as Exhibit "A," under the terms and conditions provided therein. WHEREAS, with this Professional Services Contract the City of The Colony is agreeing to pay the sum of$60,000.00 for such work.. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The Professional Services Contract, which is attached and incorporated hereto as Exhibit "A", having been reviewed by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the City Manager is hereby authorized to execute the Agreement on behalf of the City of The Colony, Texas. Section 2. That this Resolution shall take effect immediately from and after its adoption and it is so resolved. PASSED, APPROVED and EFFECTIVE this 6th day of February, 2006. Dillard, Mayor ty of The Colony, Texas ~ .. . ,. t:;- M 4 7TI-I€ W 1>. "b /E:AJ-r-o ,oJ Robe ~ ..... l ~ . ';.. AN 0,. -r ,>e. V f...~ -e<:." '~. ....".... A. !:;rq;;.u~'J7}1 rJ.rft. . 63918 STATE OF TEXAS ~ ~ AGREEMENT FOR PROFESSIONAL SERVICES COUNTY OF DENTON ~ This Agreement ("AGREEMENT") is made by and between the City of The Colony ("CITY") and Spring Brook Planning Group ("CONSULTANT") acti}lg by and through their duly authorized representatives, to be effective the ~ day of Ae{) ru.~, 2006. RECIT ALS: WHEREAS, the CITY intends to request general consulting services as assigned; and WHEREAS, the CITY desires to engage CONSULTANT to provide certain professional consulting services in connection with the work assigned ("SERVICES"); and WHEREAS, the CITY desires to engage the services of CONSULTANT, as an independent contractor and not as an employee, to perform the assigned SERVICES under the terms and conditions provided in this AGREEMENT; and WHEREAS, CONSULTANT desires to render professional serVices for the CITY on the terms and conditions provided in this AGREEMENT; NOW, THEREFORE, in exchange for the mutual covenants set forth herein and other valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows: A. CONTRACTUAL RELATIONSHIP 1. The CITY agrees to employ the CONSULTANT, and the CONSUL T ANT agrees to perform, as an independent contract, certain professional consulting services, including but not limited to identifying the study area, the issues, constraints and opportunities, participating in the formation of the Comprehensive Future Land Use Plan, identify future implementation strategies, develop zoning and subdivision regulations, and consolidate information to prepare a written report. For having rendered such SERVICES, the CITY shall compensate the CONSULTANT as provided herein in an amount not to exceed sixty thousand dollars ($60,000.00) based on the budget for the Comprehensive Plan Update. 2. The relationship of the CITY and the CONSULTANT under this Agreement and otherwise shall be that of an independent contractor. The CONSULTANT is not, by the terms of this Agreement or otherwise, an employee or representative of the CITY. 63515 B. CONSULT ANT'S OBLIGATIONS CONSULT ANT'S obligations may include, but are not limited to, the following: 1. The CONSULTANT shall provide to the CITY the professional consulting services and incidental materials specified in the SERVICES assigned. This Agreement shall serve as the general agreement for SERVICES, and each assignment will be defined by an individual Task Order. The Task Order shall define the scope, fee, and schedule for such assignment in accordance with Section A. 2. No SERVICES shall be undertaken by the CONSULTANT until a Task Order has been executed with a written notice to proceed for SERVICES has been issued by the CITY. 3. All SERVICES shall be of good quality and shall be performed in a professional manner. The standard of care for all professional consulting and related SERVICES performed or furnished by CONSULTANT under this Agreement will be of the care and skill ordinarily used by members of the CONSULTANT'S profession practicing under similar conditions at the same time and in the same locality. CONSUL T ANT will re-perform any SERVICES not meeting this standard without additional compensation. CONSULTANT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT OR OTHERWISE, IN CONNECTION WITH CONSULTANT'S SERVICES. 4. If, after the performance has begun, an error or omission is discovered and the item can still be provided in the sequence of performance without premium to the CITY, the CITY will pay for this item just as if it had been included in the original design documents. If this error or omission is discovered out of sequence with the performance timetable, then the CONSULTANT will pay for the premium to have this item corrected or included, while the CITY will pay for this item as if it had been included in the original documents. 5. CONSULTANT shall comply with all applicable laws, rules and regulations governing any projections authorized by this Agreement. 6. CONSULTANT shall perform the SERVICES in a timely fashion so as to comply with the CITY'S requirements and in accordance with schedules to be mutually agreed upon by CONSULTANT and CITY. C. OPINIONS OF PROBABLE COST Any opinions or estimates of probable construction costs to be provided under this Agreement are to be made or reviewed on the basis of the CONSULT ANT'S experience 63515 and qualifications and represent the CONSULTANT'S judgment as an experienced and qualified professional, familiar generally with the industry. However, since the CONSUL T ANT has no control over the cost of labor, materials, equipment or services furnished by others or over the contractor's methods of determining prices, or over competitive bidding or market conditions, CONSULTANT cannot and does not guarantee that proposals, bids or actual [mal costs will not vary from the opinions or estimates prepared or reviewed by the CONSULTANT. If CITY wishes greater assurance as to probable cost, CITY may choose to employ an independent cost estimator for that purpose. D. THE CITY'S RESPONSIBILITIES 1. CITY shall provide to CONSULTANT all its criteria and requirements for any Project and all available information pertinent to the Project including the base map information necessary to conduct the study such as existing land use, existing zoning, and the zoning and land use of cities adjacent to study area. CONSULTANT may reasonably rely upon such information. 2. CITY shall coordinate with the Texas Department of Transportation (TxDOT) as required for CONSULTANT to perform SERVICES under this Agreement. 3. CITY will prepare all maps resulting from the study Future Land Use Map and reproduce the Final Report. 4. CITY will examine CONSUL T ANT'S studies, reports, sketches, drawings, specifications, proposals and other information submitted by CONSULTANT, consult with others as CITY deems appropriate, and render timely written approvals and decisions to the CONSULTANT. 5. CITY shall give prompt written notice to CONSULTANT whenever CITY becomes aware of any development that affects the scope or timing of CONSULTANT'S SERVICES, or of any defect or nonconformance in the SERVICES of the CONSULTANT or work of the Contractor. E. CONSULTANT'S COMPENSATION 1. In complete compensation for all the SERVICES, the CITY shall pay to the CONSULTANT the compensation set forth in each Task Order. 2. The CONSULT ANT'S compensation shall be based on a lump sum or hourly fee for services, to be billed as defined within each Task Order. However, it is agreed that the maximum compensation payable under each Task Order shall not be exceeded under any circumstances without prior written amendment. If any of the provisions of the Task Order conflict with provisions contained in the body of this Agreement, the provision in the body of the Agreement shall prevail. 63515 3. Invoices for SERVICES performed will be submitted to CITY by CONSULTANT monthly. Invoices are due and payable within thirty (30) days after receipt. 4. If CITY fails to make any payment due CONSULTANT within thirty (30) days after receipt of CONSULTANT'S invoice, CONSULTANT may, after giving seven (7) days written notice to CITY, suspend SERVICES under this Agreement until CONSUL T ANT has been paid in full all amounts due. Payments will be credited first to interest and then to principal. 5. In the event of a disputed or contested billing, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. No interest will accrue on any contested portion of the billing until mutually resolved. CITY will exercise reasonableness in contesting any billing or portion thereof. 6. CITY may make changes within the general assigned SERVICES in this Agreement. If such changes affect the CONSULTANT'S cost of or time required for performance of the SERVICES, an equitable adjustment will be made through an amendment to this Agreement. F. INDEMNIFICATION With respect to claims brought by third parties against either CONSULTANT or CITY relating to the property or facilities with respect to which this Agreement pertains, CONSUL T ANT and CITY agree as follows: a. CONSULTANT will indemnify and hold harmless CITY, its directors, officers, agents and employees against claims, demands or causes of action; and all costs, losses, liabilities, expenses and judgments incurred in connection therewith, including attorneys' fees and court costs, brought by any of CONSUL T ANT'S employees or representatives, or by any other third party, based upon, in connection with, resulting from or arising out of the sole negligence of CONSUL T ANT; however, CONSULTANT'S contractual obligation of indemnification shall not extend to the negligence or other fault of CITY or strict liability imposed upon CITY as a matter of law (including strict liability imposed upon CITY as a result of the condition of the property or facilities with respect to which this Agreement pertains). b. CITY will indemnify and hold harmless CONSULTANT, its directors, officers, agents, employees and subcontractors against claims, demands or causes of action; and all costs, losses, liabilities, expenses and judgments incurred in connection therewith, including attorneys' fees and court costs, brought by any ofthe CITY'S employees or representatives, by any governmental entity or by any other third party, based upon its connection with, resulting from or arising out of the sole negligence of the CITY; however, CITY'S contractual 63515 obligation of indemnification shall not extend to the consequences of CONSUL T ANT'S negligence or other fault or to strict liability imposed upon CONSULTANT as a matter oflaw. c. In the event that both CITY and CONSULTANT are adjudicated negligent or otherwise at fault or strictly liable without fault with respect to damage or injuries sustained by the claimant, each shall be responsible for its own costs of litigation and pro-rata share of damages as determined by the proceedings. G. INSURANCE 1. The CONSULTANT shall obtain and maintain, throughout the term of the Agreement, General Liability insurance. 2. The CITY and the CITY'S agents and employees shall be added as additional insureds to all coverage required above. H. TERMINATION 1. This Agreement may be terminated by either party for convenience upon thirty (30) days written notice or for cause if either party fails substantially to perform through no fault of the other and does not commence correction of such non-performance within five (5) business days of written notice and diligently complete the correction thereafter. 2. Upon delivery of such notice, the CONSULTANT shall, unless the notice states otherwise, immediately discontinue all SERVICES, proceed to cancel promptly all existing orders and contracts insofar as such orders or contracts are chargeable to the SERVICES, and deliver to the CITY all instruments of service produced under this Agreement. Upon termination, the CITY will owe the CONSULTANT for all compensation earned under this Agreement to date of termination, plus reasonable termination expenses. I. OWNERSHIP OF DOCUMENTS 1. All documents including, but not limited to, reports, drawings and specifications, provided or furnished by CONSULTANT pursuant to this Agreement are instruments of service in respect of the Project, whether or not the Project is completed, and shall be the property of the CITY. 2. When such documents are in magnetic form, the CITY shall own copies of data files, text, specifications or drawings for the CITY'S information in its use of the SERVICES. However, due to the potential that the information set forth on the computer disks and/or magnetic tapes can be modified by the CITY or other persons, unintentionally or otherwise, CONSULT ANT reserves the right to remove all indicia of 63515 its ownership and/or involvement from each electronic display. For documentation purposes, the original computer files will be retained by CONSULTANT for a period not to exceed five (5) years after completion of the SERVICES. Thereafter, all such files shall be remitted to the CITY. In addition, the information set forth on the disk/magnetic tape is considered a part of CONSULTANT'S instrument of service and will not be used by the CITY on other SERVICES, for additions to this SERVICE, or for completion of this SERVICE by another design professional except by agreement in writing and with appropriate compensation to the architect/CONSULTANT. 3. Any such use or reuse of any instrument of service by the CITY or others without written verification or data adaptation by CONSULTANT for the specific purpose intended will be at the CITY'S sole risk and without liability or legal exposure to CONSULTANT. Furthermore, CITY shall, to the fullest extent permitted by law, indemnify and hold harmless CONSULTANT from al claims, damages, losses and expenses, including attorneys' fees arising out of or resulting therefrom. Any such verification or adaptation will entitle CONSULTANT to further compensation at rates to be mutually agreed upon by CITY and CONSULTANT. J. WAIVER No consent or waiver, express or implied, by either party to this Agreement, to or of any breach of default by the other in the performance of any obligations under this Agreement shall be deemed or construed to be a consent or waiver to or of any other or future breach or default by such party. Failure on the part of any party to this Agreement to complain of any act or failure to act of the other party or to declare the other party in default hereunder, irrespective of how long such failure continues, shall not constitute a waiver of the rights of such party hereunder. K. LIMITATIONS ON RIGHTS AND REMEDIES 1. To the fullest extent permitted by law ad notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of CONSULTANT and CONSULTANT'S officers, directors, employees, agents and subcontractors, and any of them, to CITY and anyone claiming by, through or under CITY, for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the SERVICES or the Agreement from any cause or causes including, but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract or warranty, express or implied, of CONSULTANT or CONSULTANT'S officers, directors, employees, agents or subcontractors, or any of them, shall not exceed the total compensation received by CONSULTANT under this Agreement. 2. CONSULTANT and CITY agree that neither of them shall be responsible or liable to the other for the consequences of events that are beyond the 63515 reasonable control of the other party including, but not limited to, interference by third parties, changed conditions, labor strikes, fires, thefts or other losses, or acts of God. 3. CONSULTANT and CITY agree that neither of them shall be entitled to recover from the other for any indirect, special or consequential damages, injuries or losses sustained as a result of their actions or inactions under this Agreement or otherwise including, but not limited to, lost profits, lost opportunities, and/or delay damages. L. NO THIRD PARTY RIGHTS 1. Nothing contained in this Agreement shall create a contractual relationship with or duties, obligations or causes of action in favor of any third party against either CITY or CONSULTANT. 2. The SERVICES to be performed by the CONSULTANT under this Agreement are solely for the benefit of the CITY. This Agreement shall not be construed as creating any contractual relationship of any kind between the CONSULTANT and any third party. It is the intent of the CONSULTANT that there are no third party beneficiaries of this Agreement. The fact that the CITY may enter into other agreements with third parties which provide the CONSULTANT the authority to observe the work being performed by the third party shall not give rise to any duty or responsibility on the part of the CONSULTANT in favor of such third party. M. MISCELLANEOUS 1. This Agreement shall be effective upon its execution by the CONSULTANT and the CITY, subject to the notice to proceed, and shall remain in full force until all obligations under this Agreement have been fulfilled, unless sooner terminated as provided herein. 2. This Agreement shall be construed and enforced for all purposes pursuant to the laws of the State of Texas. Venue shall be exclusively in Denton County, Texas. 3. Neither the CONSULTANT nor the CITY shall assign, sublet or transfer the interest in this Agreement without the prior written consent ofthe other. 4. This Agreement (including all documents incorporated by reference or attached as exhibits hereto) represents the entire agreement between the CONSULTANT and the CITY with respect to the subject matter hereof and supersedes and merges all prior negotiations, representations, discussions or agreements, either written or oral, with respect to the subject matter hereof. 5. This Agreement may be amended only by written instrument signed by duly authorized representatives of both the CONSULTANT and the CITY. 63515 6. If a provision of this Agreement, or the application thereof to any person or circumstances, is rendered or declared illegal for any reason or shall be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent permitted by applicable law. The parties agree to negotiate in good faith for a proper amendment to this Agreement in the event any provision hereof is declared illegal, invalid or unenforceable. 7. All notices required or permitted hereunder shall be in writing and shall be deemed delivered three (3) days after deposit with the United States Postal Service, certified mail, return receipt requested, addressed to the respective other party at the addresses shown below: If to CONSULTANT: SpringBrook Planning Group 2405 Mustang Drive Grapevine, Texas 76051 Attn: Lawrence C. Reichhart If to CITY: City of The Colony 6800 Main Street The Colony, Texas 75088 Attn: Dale Cheatham, City Manager 8. The captions used in this AGREEMENT are for convenience only and shall not affect in any way the meaning or interpretations of the provisions set forth herein. 9. This AGREEMENT may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. IN WITNESS WHEREOF, this Agreement is hereby executed as of the date first above set forth. CITY OF THE COLONY ATTEST: ~! Dillard, Mayor 63515 SPRING BROOK PLANNING GROUP 63515