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HomeMy WebLinkAboutResolution No. 08-077 CITY OF THE COLONY, TEXAS RESOLUTION NO. 08-077 A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A DESIGN SERVICES CONTRACT BY AND BETWEEN THE CITY OF THE COLONY AND CARTER & BURGESS, INC. FOR PROFESSIONAL DESIGN SERVICES FOR ENHANCEMENTS TO THE PROPOSED F.M. 423 SOUND WALLS, 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 a Contract such that the Consultant is to provide professional design services for enhancements to the proposed F.M. 423 sound walls; and WHEREAS, the City has determined that it is in the best interest of the City to enter into the Contract with Carter & Burgess, Inc., which is attached hereto and incorporated herein as Exhibit "A", under the terms and conditions provided therein; and WHEREAS, with this Contract, the City of The Colony is agreeing to pay the sum not to exceed $31, 945 for such work. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: Section 1. The Professional Design Services Contract, which is attached hereto and incorporated herein 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, the same is hereby, in all things approved in the amount of $31 ,945. Section 2. The City Manager is hereby authorized to execute the Contract on behalf of the City of The Colony, Texas. Section 3. it is so resolved. This resolution shall take effect immediately from and after its adoption and CONSUL T ANT CONTRACT CITY OF THE COLONY STATE OF TEXAS ~ ~ COUNTY OF DENTON ~ KNOW ALL MEN BY THESE PRESENTS: THIS CONTRACT is made and entered into this date by and between the CITY OF THE COLONY, a Texas municipal corporation (hereinafter referred to as the "CITY", and CARTER & BURGESS, INC., (hereinafter referred to as "CONSULTANT") and evidences the following: I. PURPOSE CONSUL T ANT shall provide professional services for PROJECT. II. DESCRIPTION OF SERVICES The services which CONSULTANT shall provide for the CITY shall include the following: A. CONSULTANT hereby covenants and agrees that CONSULTANT is to work closely with the CITY's Park Development Manager or his chosen agent, and/or other appropriate officials of the CITY, and that CONSULTANT is to perform any and all tasks required of CONSULTANT to fulfill the purposes of this Contract. B. CONSULTANT and the CITY covenant and agree that CONSULTANT shall perform all of the services and work contained in CONSULTANT'S proposal to the CITY (attached hereto as "Exhibit A"); said document being part of this Contract and incorporated in its entirety herein. The parties agree that should there be any conflict between the terms of the incorporated document and this Contract, the provisions of this Contract shall control. C. CONSUL T ANT expressly covenants and agrees to provide the CITY with such written reports as may be required by the scope of the proposal. Page I of 13 D. CONSULTANT will provide the CITY with one "hard copy set" and one digital set of the final contract documents, plans and reports. Record drawings of the plans and revised digital files shall be provided by the CONSULTANT upon completion of the project. Also, provide the CITY with a digital copy in pdf format and four sets of plans. Digital files shall be on labeled Compact Disk(s). III. PERFORMANCE OF WORK CONSUL T ANT or CONSULTANT'S associates and employees shall perform all the work called for in this Contract. CONSULTANT warrants that its engineering, design and consulting services will be performed in accordance with generally accepted standards in the industry. CONSULTANT hereby covenants and agrees that all of CONSULTANT'S associates and employees who work on this project shall be fully qualified to undertake same and competent to do the work described in this Contract. IV. PAYMENT The CITY shall pay to CONSULTANT a sum not to exceed $31.965 for the services including expenses in accordance with "Exhibit A". CONSULTANT shall bill CITY on a monthly basis for services rendered, based upon percentage of work completed. CITY shall make prompt monthly payments in the amount shown by the CONSULTANT'S approved monthly statements and other documentation submitted. No interest shall ever be due on late payments. Within 30 days after the final completion and acceptance by the CITY of all work under this Contract, and demonstration of payment of all suppliers and sub-contractors final payment shall be due. V. TERM OF THE CONTRACT This Contract shall commence and be in full force and effect upon the signing of the Contract and observance of the appropriate formalities. This Contract shall terminate by May 29, 2009 at which time all of the work called for under this Contract must be completed unless the parties mutually agree Page 2 of 13 in writing to extend the term of the Contract, or, unless otherwise terminated as provided in Paragraph XVI herein. Throughout the project the CONSULTANT must establish and maintain procedures for tracking and reporting progress. On Projects lasting over two months and exceeding $15,000, the CONSULTANT shall submit to the CITY written progress reports on a monthly basis. The reports shall include a brief summary of progress relative to each phase of work of the project. Reports shall include minutes of review meetings, documentation of any changes, and shall address issues and challenges encountered as well as anticipated project milestones according to the schedule, and anticipated solutions to keep the project on schedule. VI. CONTRACT PERSONAL CONSUL T ANT and the CITY hereby covenant and agree that this Contract provides for personal services and that these services are not to be assigned or sublet in whole or part without the prior written consent of the CITY. VII. CONFLICT OF INTEREST CONSUL T ANT hereby covenants and agrees that during the Contract period that CONSULTANT and any of CONSULTANT'S associates and employees will have no interest nor acquire any interest, either direct or indirect, which will conflict in any manner with the performance of the services called for under this Contract. All activities, investigations and other efforts made by CONSULTANT pursuant to this Contract will be conducted by employees or associates of CONSULTANT. CONSUL T ANT further covenants and agrees that it understands that the Code of Ordinances of the City of The Colony prohibits any officer or employee of the CITY from having any financial interest, either direct or indirect, in any business transaction with the CITY. Any violation of this paragraph which occurred with the actual or constructive knowledge of CONSULTANT will render this Contract Page 3 of 13 voidable by the CITY. VIII. CHANGE IN WORK The CITY, through its Park Development Manager, may request changes in the scope and focus of the activities and studies called for under this Contract. Any such change which, in the opinion of CONSUL T ANT or the CITY varies significantly from the scope and focus of the work set out herein or entails a significant increase in cost or expense to CONSULTANT must be mutually agreed upon by CONSULTANT and the CITY. The parties herein acknowledge that any change in the scope or focus of the work which results in the increase in compensation to CONSULTANT of the fee stated in Paragraph IV hereof must first be approved by the CITY's City Manager or City Council, where applicable. IX. CONFIDENTIAL WORK Any reports, designs, plan, information, project evaluations, data or any other documentation given to or prepared or assembled by CONSULTANT under this Contract shall be kept confidential and may not be made available to any individual or organization by CONSULTANT without the prior written approval of the CITY except as may be required by law. X. OWNERSHIP OF DOCUMENTS CONSULTANT acknowledges that CITY owns all notes, reports, or other documents intellectual property or documentation produced by CONSULTANT pursuant to this Contract or in connection with its work. CONSULTANT acknowledges that CITY shall have copyright privileges to those notes, reports, documents, processes and information. However, CONSULTANT acknowledges that the finished product, the report and/or documents and plans prepared for the CITY, as well as city documents reviewed in the preparation of the report, are the property of the CITY. CONSULTANT shall provide CITY a copy of all such notes, reports, documents, and information (except to the extent Page 4 of 13 that they contain confidential information about third parties) at CITY expense upon written request. CITY agrees to keep all such information in the strictest of confidence and not to disclose such material to any third party or allow any third party access to such material except as such disclosure is expressly required to applicable law. XI. NONDISCRIMINA TION As a condition of this Contract, CONSULTANT covenants and agrees that CONSULTANT shall take all necessary actions to insure, in connection with any work under this Contract, that CONSUL T ANT or CONSUL T ANT'S associates, sub-contractors, or employees, will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or physical handicap unrelated to job performance, either directly or indirectly or through contractual or other arrangements. In this regard, CONSUL T ANT shall keep, retain and safeguard all records relating to this Contract for work performed hereunder for a minimum period of three (3) years from final contract completion, with full access allowed to authorized representatives of the CITY upon request, for purposes of evaluating compliance with this and other provisions of the Contract. XII. INDEPENDENT CONTRACTOR By the execution of this Contract, the CITY and CONSULTANT do not change the independent contractor status of CONSULTANT. No term or provision of this Contract or any act of CONSUL T ANT in the performance of this Contract may be construed as making CONSULTANT the agent or representative of the CITY. XIII. INSURANCE CONSUL T ANT shall prior to the commencement of work under this Contract, obtain and shall continue to maintain at no cost to the CITY, in full force and effect during the term of this Contract, a Page 5 of 13 comprehensive general liability insurance policy which shall include bodily, death, automobile liability and property damage coverage. The minimum limit for this coverage shall be $500,000 combined single limit for liability and for property damage. The CONSULTANT shall also obtain and shall continue to maintain at no cost to the CITY, in full force and effect during the term of this Contract a professional liability (errors and omissions) insurance policy placed with a company rated at least A-/X by Best's Key Rating Guide, authorized to do business in Texas, in an amount not less than $500,000. The CITY shall be named as an additional insured under the comprehensive general liability policy and its provisions shall require that the CITY be given at least thirty (30) days prior notice of any material change in coverage, non-renewal, or of cancellation of such policy, evidenced by return receipt of United States Certified Mail. CONSULTANT shall furnish the CITY with certificates evidencing such coverage prior to commencement of any work under this Contract. Upon request of the CITY, CONSUL T ANT shall make certified copies of its insurance policies available for review by the CITY at CONSULTANT's offices in Dallas. XIV. HOLD HARMLESS CONSUL T ANT shall defend, indemnify, and hold the CITY whole and harmless against any and all claims for damages, costs, and expenses to persons or property to the extent they arise out of, or are occasioned by the Consultant's negligence, gross negligence or intentional tortuous acts, errors or omissions in the performance of this Contract, or any act of Consultant's negligence, gross negligence or intentional tortuous acts of commission or omission in the execution or performance of this Contract of any representative, agent, customer, employee, subcontractor or invitee of CONSULTANT. XV. NO VERBAL AGREEMENT This Contract contains the entire commitments and agreements of the parties to the Contract. Any verbal or written commitment not contained in this Contract or expressly referred to in this Contract Page 6 of 13 and incorporated by reference shall have no force or effect. XVI. TERMINA TION The CITY may, at its option and without prejudice to any other remedy to which it may be entitled at law or in equity, terminate further work under this Contract, in whole or in part, by giving at least ten (10) days prior written notice thereof to CONSULTANT with the understanding that all services being terminated shall cease upon the date specified in such notice. The CITY shall equitably compensate CONSUL T ANT, in accordance with the terms of this Contract for the services properly performed prior to the date specified in such notice following inspection and acceptance of same by the CITY. CONSUL T ANT shall not, however, be entitled to lost or anticipated profits should the CITY choose to exercise its option to terminate. XVII. LIMIT A TION OF LIABILITY The total aggregate liability of CONSULTANT arising out of the performance or breach of this Contract shall not exceed the total amount of compensation paid to CONSULTANT under this Contract. Notwithstanding any other provision of this Contract, CONSULTANT shall have no liability to the CITY 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. The limitations and exclusions of liability set forth in this paragraph shall apply regardless of the fault, breach of contract, tort (including negligence), strict liability or otherwise of CONSULTANT, its employees or subconsultants. XVIII. VENUE The parties to this Contract agree and covenant that this Contract will be performable in The Colony, Texas, and that if legal action is necessary to enforce this Contract, exclusive venue will lie in Denton Page 7 of 13 County, Texas. XIX. APPLICABLE LAWS This Contract is made subject to the existing provisions of the Charter of the City of The Colony, its rules, regulations, procedures and ordinances, present and future, and all applicable laws of the State of Texas and the United States of America. XX. CONTRACT INTERPRETATION The parties to this Contract covenant and agree that in any litigation relating to this Contract, the terms and conditions of the Contract will be interpreted according to the laws of the State of Texas. XXI. NOTICES All notices, communications and reports under this Contract must be mailed or delivered to the respective parties at the addresses shown below, unless either party is otherwise notified in writing by the other party: CITY: Dale Cheatham City Manager City of The Colony 6800 Main Street The Colony, Texas 75056 (972) 624-3104 J. Keith Helms, RLA, ASLA Park Development Manager City of The Colony 6800 Main Street The Colony, Texas 75056 (972) 625-1106, Fax (972) 624-2321 CONSULTANT: David T. Retzsch Project Director Jacobs Carter Burgess 7950 Elmbrook Dr. Dallas, Texas 75247 XXII. SEVERABILITY In the event that anyone or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or Page 8 of 13 unenforceability shall not affect any other provision thereof and this Contract shall be considered as if such invalid, illegal, or unenforceable provision had never been contained in the Contract. XXIII. RIGHT OF REVIEW CONSULTANT covenants and agrees that the CITY, upon reasonable notice to CONSULTANT, may review any of the work performed by CONSULTANT under this Contract. XXIV. SUCCESSORS AND ASSIGNS This Contract shall be binding upon and inure to the benefit of the parties hereto and their successors, and, except as otherwise provided herein, their assigns. XXV. CAPTIONS The captions to the various clauses of this Contract are for informational purposes only and in no way alter the substance of the terms and conditions of this Contract. XXVI. WAIVER OF ATTORNEYS FEES CONSUL T ANT and CITY expressly covenant and agree that in the event of any litigation arising between the parties to this contract, each party shall be solely responsible for payment of its attorneys and that in no event shall either party be responsible for the other party's attorney's fees regardless of the outcome of the litigation. Page 9 of 13 XXVII. FORCE MAJEURE Any delays in or failure of performance by CONSULTANT or CITY, other than the payment of money, shall not constitute default hereunder if and to the extent such delays or failures of performance are caused by occurrences beyond the reasonable control of CITY or CONSULTANT, as the case may be, including but not limited to, acts of God or the public enemy; compliance with any order or request of any governmental authority; fires, floods, explosion, accidents; riots, strikes or other concerted acts of workmen, whether direct or indirect; or any causes, whether or not of the same class or kind as those specifically named above, which are not within the reasonable control of CITY or CONSULTANT respectively. In the event that any event of force majeure as herein defined occurs, CONSUL T ANT shall be entitled to a reasonable extension of time for performance of its services under this Contract. EXECUTED this the }. n.!.day of ~~ ,2008. CITY OF THE COLONY, TEXAS: ~ CONSULTANT: Cl/flft?/2 of FP~€!5~ ZA.('. g-Ood)~ City Manager ~<> \.- - Company ~~~ (;}~-v-J Corporat~Secretary A $~is.J.4.nt ATTEST: ATTEST: Page 10 of 13 EXHIBIT "A" Soundwall Design Study The Colony, Texas 7 August 2008 Scope of Work Jacobs Carter Burgess will provide urban design services to support The Colony in the development of TxDOT soundwall designs along Main Street, FM 423. Services to be provided shall be as follows: 1. Attend a kick off meeting with the client to confirm project goals, objectives, priorities, schedule of work and design considerations. Obtain base information files, background studies and other relevant criteria as provided by the client prior to proceeding with subsequent tasks. 2. Conduct a one day visual analysis of existing conditions and community characteristics along the project roadway corridor. Document summary findings in a photographic collage depicting potential themes and design influences on a summary drawing sheet. 3. Attend a meeting with the client and TxDOT officials to discuss preliminary soundwall design criteria, budgets and concepts. Confirm strategies, responsibilities and design standards for design collaboration between The Colony and TxDOT. 4. Prepare two concept alternatives for soundwall aesthetic designs. Depict the proposed designs in color rendered, prototypical plan, cross section and elevation sketches. Prepare a preliminary estimate of construction cost for additive aesthetic "enhancements". 5. Attend a meeting with the client to present the findings of tasks 2 and 4. Solicit client feedback on the alternatives design. 6. Make minor modifications to the soundwall concept alternatives based on feedback provided. Update the concept illustrations and cost estimate into printed board and powerpoint formats suitable for public presentation. Assist the client with preparation of a narrative for a citizen input form in desktop publishing format Potential additional services could include, but may not be limited to: 1. Additional meetings and/or presentations. 2. Design development definition/coordination with the client, Denton County and TxDOT. 3. Soundwall construction document preparation and/or review. 4. Design of complimentary hardscape/softscape improvements. 5. Design modeling and/or materials mock-ups. Page II of 13 EXHIBIT "A" Estimated professional design fees for the above services shall be: Task 1 - $ 2,810 Task 2 - $ 4,465 Task 3 - $ 2,300 Task 4 - $ 9,730 Task 5 - $ 2,800 Task 6 - $ 7,860 Direct Cost 2.000 TOTAL - $ 31,965 Direct Costs - Will be billed with a percentage applied to each basic service task fee. Additional Services - Hourly, T.B.D. as approved by client. Page 12 of 13 EXHIBIT "A" Project Sr. L. A. Land. Struct. Support Eng. Dir. (D. (P. Arch. Eng. Civil Eng. Staff Tech Clerical Retzsch) Neeley) (Stjohn) (T.B.D.) (T.BD.) (T.B.D.) (T.BD.) (Sawin) Total Rates $220.00 $125.00 $115.00 $200.00 $175.00 $70.00 $65.00 $55.00 Scope Tasks 1.0 Hours 4 2 8 0 0 4 4 4 26 Dollars $880.00 $250.00 $920.00 $0.00 $0.00 $280.00 $260.00 $220.00 $2,810.00 2.0 Hours 4 1 16 0 0 20 0 4 45 Dollars $880.00 $125.00 $1,840.00 $0.00 $0.00 $1,400.00 $0.00 $220.00 $4,465.00 3.0 Hours 4 0 8 0 0 4 0 4 20 Dollars $880.00 $0.00 $920.00 $0.00 $0.00 $280.00 $0.00 $220.00 $2,300.00 4.0 Hours 4 2 24 8 4 40 8 4 94 Dollars $880.00 $250.00 $2,760.00 $1,600.00 $700.00 $2,800.00 $520.00 $220.00 $9,730.00 5.0 Hours 4 4 8 0 0 4 0 4 24 Dollars $880.00 $500.00 $920.00 $0.00 $0.00 $280.00 $0.00 $220.00 $2,800.00 6.0 Hours 4 2 20 4 2 40 4 4 80 Dollars $880.00 $250.00 $2,300.00 $800.00 $350.00 $2,800.00 $260.00 $220.00 $7,860.00 Subtotals Hours 24 11 84 12 6 112 16 24 289 Dollars $5,280.00 $1,375.00 $9,660.00 $2,400.00 $1,050.00 $7,840.00 $1,040.00 $1,320.00 $29,965.00 Direct Cost Allowance $2,000.00 TOTAL $31,945.00