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HomeMy WebLinkAboutResolution No. 09-039 CITY OF THE COLONY, TEXAS RESOLUTION NO. 09-039 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND DUNKIN SIMS STOFFELS, INC. FOR ADDITIONAL ENGINEERING AND GEOTECHNICAL SERVICES FOR THE COLONY TRAILS PROJECT, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; 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: ADDITIONAL ENGINEERING AND GEOTECHNICAL SERVICES FOR THE COLONY TRAILS PROJECT; and WHEREAS, the City has determined that it is in the best interest of the City to enter into the agreement with DUNKIN SIMS STOFFELS, INC., which is attached hereto and incorporated herein by reference as Exhibit "A," under the terms and conditions provided therein; and WHEREAS, with this agreement the City of The Colony is agreeing to pay a sum not to exceed $87,410 for such work. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: Section 1. The agreement, 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 for a total amount not to exceed $87,410, 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. 63918 PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 15th day of June, 2009. ATTEST: oe McCo rry, ayor City of T e Colony, Tex cloA64-L stie Wilson, City Secretary APPROV S TO FORM: Robert E. Hager, City orney ,,T s 63918 STATE OF TEXAS § § AGREEMENT FOR PROFESSIONAL SERVICES COUNTY OF DALLAS § This agreement ("Agreement") is made by and between the City of The Colony, Texas ("City") and DUNKIN SIMS STOFFELS, INC. (the "Professional") acting by and through their authorized representatives. Recitals: WHEREAS, City desires to engage the services of Professional as an independent contractor and not as an employee in accordance with the terms and conditions set forth in this Agreement; and WHEREAS, the Professional desires to render professional services for City for ADDITIONAL ENGINEERING AND GEOTECHNICAL SERVICES FOR THE COLONY TRAILS PROJECT (the "Project") in accordance with the terms and conditions set forth in this Agreement; NOW THEREFORE, in exchange for the mutual covenants set forth herein and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties agree as follows: Article I Term 1.1 This term of this Agreement shall begin on the last date of execution hereof by all parties hereto (the "Effective Date") and continue until completion of the services provided herein. 1.2 Professional may terminate this Agreement by giving thirty (30) days prior written notice to City. In the event of such termination, Professional shall be entitled to compensation for any services completed to the reasonable satisfaction of City in accordance with this Agreement prior to such termination. 1.3 City may terminate this Agreement by giving ten (10) days prior written notice to Professional. In the event of such termination, Professional shall be entitled to compensation for any services completed to the reasonable satisfaction of City in accordance with this Agreement prior to such termination. Article II Scope of Services 2.1 Professional shall provide the services specifically set forth in Exhibit "A," attached hereto and incorporated herein by reference ("Scope of Services"). 2.2 The parties acknowledge and agree that any and all opinions provided by Professional represent the best judgment of Professional. 2.3 Schematic Design Documents, Design Development Documents, Contract Documents, drawings, plans, specifications and other documents, including those in electronic form, prepared by Professional and its consultants, agents, representatives, and/or employees in connection with the Project are intended for the use and benefit of City. Professional and its consultants, agents, representatives, and/or employees shall be deemed the authors of their respective part of said Project documents. Notwithstanding, City shall own, have, keep and retain all rights, title and interest in and to all Project documents, including all ownership, common law, statutory, and other reserved rights, including copyrights, in and to all such Project documents, whether in draft form or final form, which are produced at City's request and in furtherance of this Agreement or the Project. City shall have full authority to authorize contractor(s), subcontractors, sub-subcontractors, City consultants, and material or equipment suppliers to reproduce applicable portions of the Project documents to and for use in their execution of the work or for any other purpose. All materials and reports prepared by Professional in connection with this Agreement are "works for hire" and shall be the property of City. City shall have the right to publish, disclose, distribute and otherwise use such materials and reports in accordance with the Engineering Practice Act of the State of Texas (Texas Occupation Code, Chapter 1001, as amended) and/or Texas Occupations Code, Chapter 1051, as amended. Professional shall, upon completion of the services, or earlier termination, provide City with reproductions of all materials reports, and exhibits prepared by Professional pursuant to this Agreement, and in electronic format if requested by City. Article III Schedule of Work 3.1 Professional agrees to commence services upon written direction from City and to complete the tasks set forth in the Scope of Services in accordance with a work schedule established by City (the "Work Schedule"), which is attached hereto and incorporated as Exhibit "A„ 3.2 In the event Professional's performance of this Agreement is delayed or interfered with by acts of City or others, Professional may request an extension of time for the performance of same as hereinafter provided, but shall not be entitled to any increase in fee or price, or to damages or additional compensation as a consequence of such delays unless such delays exceed ninety (90) days. 3.3 No allowance of any extension of time, for any cause whatever, shall be claimed or made by Professional, unless Professional shall have made written request upon City for such extension not later than two (2) business days after the cause serving as the basis for such extension occurred, and unless City and Professional have agreed in writing upon the allowance of such additional time. Article IV Compensation and Method of Payment 4.1 City shall pay Professional for the services specifically as set forth in Exhibit "A" by payment of a fee not to exceed $87,410.00. Partial payment will be made on a monthly basis for completed portions of the work in accordance with invoices setting forth a description of the work completed as approved by the City. 4.2 Professional shall be solely responsible for the payment of all costs and expenses related to the services provided pursuant to this Agreement including, but not limited to, travel, copying and facsimile charges, reproduction charges, and telephone, internet, e-mail, and postage charges. Article V Devotion of Time; Personnel; and Equipment 5.1 Professional shall devote such time as reasonably necessary for the satisfactory performance of the work under this Agreement. Should City require additional services not included under this Agreement, Professional shall make reasonable efforts to provide such additional services at mutually agreed charges or rates, and within the time schedule prescribed by City, and without decreasing the effectiveness of the performance of services required under this Agreement. 5.2 To the extent reasonably necessary for Professional to perform the services under this Agreement, Professional shall be authorized to engage the services of any agents, assistants, persons, or corporations that Professional may deem proper to aid or assist in the performance of the services under this Agreement. The cost of such personnel and assistance shall be borne exclusively by Professional. 5.3 Professional shall furnish the facilities, equipment, telephones, facsimile machines, email facilities, and personnel necessary to perform the services required under this Agreement unless otherwise provided herein. Article VI Relationship of Parties 6.1 It is understood and agreed by and between the parties that in satisfying the conditions of this Agreement, Professional is acting independently, and City assumes no responsibility or liabilities to any third party in connection with these actions. All services to be performed by Professional pursuant to this Agreement shall be in the capacity of an independent contractor, and not as an agent or employee of City. Professional shall supervise the performance of its services and shall be entitled to control the manner and means by which its services are to be performed, subject to the terms of this Agreement. As such, City shall not train Professional, require Professional to complete regular oral or written reports, require Professional devote his full- time services to City, or dictate Professional's sequence of work or location at which Professional performs Professional's work. 6.2 Professional shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, plans, and other services furnished by Professional under this Agreement. Professional shall, without additional compensation, correct or revise any errors or deficiencies in the design, drawings, specifications, plans and other services. Neither City's review, approval or acceptance of, nor payment for any of the services required under this Agreement, shall be construed to operate as a waiver of any rights under this Agreement, and Professional shall be and remain liable to City in accordance with applicable law for all damages to City caused by Professional's negligent performance of any of the services furnished under this Agreement. Article VII Insurance 7.1 Professional shall during the term hereof maintain in full force and effect the following insurance: (1) a policy of insurance for bodily injury, death and property damage insuring against all claims, demands or actions relating to Professional's performance of services pursuant to this Agreement with a minimum combined single limit of not less than $1,000,000 per occurrence for injury to persons (including death), and for property damage; (2) policy of automobile liability insurance covering any vehicles owned and/or operated by Professional, its officers, agents, and employees, and used in the performance of this Agreement in the amount of $1,000,000; and (3) statutory Worker's Compensation Insurance covering all of Professional's employees involved in the provision of services under this Agreement. 7.2 Professional shall provide and maintain Professional Liability Errors and Omissions insurance coverage to protect Professional from liability arising out of the performance of professional services, if any, under this Agreement. Such coverage shall be in the sum of not less than Seven Hundred Fifty Thousand Dollars ($750,000) per occurrence and Two Million Dollars ($2,000,000) aggregate. Such insurance shall be kept in effect for four (4) years after the completion of the Scope of Services. If Professional fails to maintain the insurance covered during that time, City may pay the premiums to keep the insurance in effect and recover the cost from Professional. 7.3 All insurance and certificate(s) of insurance shall contain the following provisions: (1) name the City, its officers, agents and employees as additional insureds as to all applicable coverage with the exception of Workers Compensation Insurance; (2) provide for at least thirty (30) days prior written notice to the City for cancellation, non-renewal, or material change of the insurance; and (3) provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. 7.4 All insurance companies providing the required insurance shall either be authorized to transact business in Texas and rated at least "B" by AM Best or other equivalent rating service, or approved by the City Manager. 7.5 A certificate of insurance evidencing the required insurance shall be submitted to the City prior to commencement of services. Article VIII Miscellaneous 8.1 Entire Agreement. This Agreement constitutes the sole and only agreement between the parties and supersedes any prior understandings, written or oral agreements between the parties with respect to this subject matter. 8.2 Authorization. Each party represents that it has full capacity and authority to grant all rights and assume all obligations granted and assumed under this Agreement. 8.3 Assianment. Professional may not assign this Agreement in whole or in part without the prior written consent of City. In the event of an assignment by Professional to which the City has consented, the assignee shall agree in writing with the City to personally assume, perform, and be bound by all the covenants, and obligations contained in this Agreement. 8.4 Successors and Assigns. Subject to the provisions regarding assignment, this Agreement shall be binding on and inure to the benefit of the parties to it and their respective heirs, executors, administrators, legal representatives, successors and assigns. 8.5 Governing- Law. The laws of the State of Texas shall govern this Agreement; and venue for any action concerning this Agreement shall be in the State District Court of Denton County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of said court. 8.6 Amendments. This Agreement may be amended by the mutual written agreement of the parties. 8.7 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not effect any other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. 8.8 Survival of Covenants and Terms. Any of the representations, warranties, covenants, and obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the termination of this Agreement shall survive termination, including, but not limited to, Section 2.3, Article VIII, and Section 8.13. 8.9 Recitals. The recitals to this Agreement are incorporated herein. 8.10 Notice. Any notice required or permitted to be delivered hereunder may be sent by first class mail, overnight courier or by confirmed telefax or facsimile to the address specified below, or to such other party or address as either party may designate in writing, and shall be deemed received three (3) days after delivery set forth herein: If intended for City: With Copy to: Dale Cheatham J. Keith Helms City Manager Park Development Manager City of The Colony City of The Colony 6800 Main Street 6800 Main Street The Colony, Texas 75056 The Colony, Texas 75056 If intended for Professional: Dennis Sims, ASLA Dunkin Sims Stoffels, Inc. 9603 White Rock Trail, Suite 210 Dallas, Texas 75238 214/553-5778, Fax 214/553-5781 8.11 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of any number of copies hereof each signed by less than all, but together signed by all of the parties hereto. 8.12 Exhibits. The exhibits attached hereto are incorporated herein and made a part hereof for all purposes. 8.13 Indemnification. CITY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND OR CHARACTER TO ANY PERSON OR PROPERTY ARISING FROM THE SERVICES OF PROFESSIONAL PURSUANT TO THIS AGREEMENT. PROFESSIONAL HEREBY WAIVES ALL CLAIMS AGAINST CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY REFERRED TO IN THIS SECTION AS "CITY") FOR DAMAGE TO ANY PROPERTY OR INJURY TO, OR DEATH OF, ANY PERSON ARISING AT ANY TIME AND FROM ANY CAUSE OTHER THAN THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CITY. PROFESSIONAL AGREES TO INDEMNIFY AND SAVE HARMLESS CITY FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, CLAIMS, SUITS, COSTS (INCLUDING COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION) AND ACTIONS BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY TO THE EXTENT CAUSED BY PROFESSIONAL'S NEGLIGENT PERFORMANCE OF SERVICES UNDER THIS AGREEMENT OR BY REASON OF ANY NEGLIGENT OR INTENTIONAL ACT OR OMISSION ON THE PART OF PROFESSIONAL, ITS OFFICERS, DIRECTORS, SERVANTS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, SUCCESSORS OR PERMITTED ASSIGNS (EXCEPT WHEN SUCH LIABILITY, CLAIMS, SUITS, COSTS, INJURIES, DEATHS OR DAMAGES ARISE FROM OR ARE ATTRIBUTED TO SOLE NEGILGENCE OF THE CITY). IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE PROFESSIONAL, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDINGS AT PROFESSIONAL'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. PROFESSIONAL'S OBLIGATIONS UNDER THIS SECTION SHALL NOT BE LIMITED TO THE LIMITS OF COVERAGE OF INSURANCE MAINTAINED OR REQUIRED TO BE MAINTAINED BY PROFESSIONAL UNDER THIS AGREEMENT. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT 8.14 Audits and Records. Professional agrees that during the term hereof City and its representatives may, during normal business hours and as often as deemed necessary, inspect, audit, examine and reproduce any and all of Professional's records relating to the services provided pursuant to this Agreement for a period of one year following the date of completion of services as determined by City or date of termination if sooner. 8.15 Conflicts of Interests. Professional represents that no official or employee of City has any direct or indirect pecuniary interest in this Agreement. EXECUTED this /~5 /day of 2009. City of The Colony Texas By: - A~ &.eo-6L Dale Cheatham, City Manager A s City Sec etary EXECUTED this day of TT vt , 2009. Professional By: - &Ii7k~ Name: 0 b,5 Title: G('. pU'~S t l.~ (i~L Atte t: } Corp r ecretary 1 1 June 10, 2009 Mr. Keith Helms City of The Colony 5151 N. Colony Blvd. -The Colony, Texas 75056 Attention: Mr. Keith Helms, ASLA Subject: Proposal for Additional Engineering & Geotec hnical Services for The Colony Trails Project Dear Mr. Helms: Below you will find a breakdown of proposed Professional Service Fees for The Colony Shoreline Trail and Austin Ranch Trail. R-Delta Additional Services NOT in Original Contract $ 64,350.00 R-Delta March 14th Add. Parking Design Drainage, Swale &Survey $ 27,150 R-Delta March 14th Add. Storm Water Repairs Outfall A-D $ 15,300 R-Delta April 16th Add. Bridge Abutment Revised, Low Profiles & Survey $ 5,000 R-Delta Dec. 12th Add. Survey & Engineering Low Profile 'I' $ 3,820 R-Delta Feb. 3rd, 09 Add. Relocate Ped. Crossing A & Stake Lines $ 2,000 R-Delta Feb. 23rd, 09 Add. Relocate Crossing A Survey & Engineering $ 6,760 R-Delta April. 23rd, 09 Add. Low Water Crossings "J" & "K" Calcs. $ 6,320 R-Delta April. 23rd, 09 Del. design services Low Water Crossings "J" (2,000) $ 64,350 Reed Engineering Additional Services NOT in Original Contract $ 6,900.00 Geotechnical Report-2 Bridge Bores- dated Feb. 26, 2008 $ 3,000 Geotechnical Report-Parking Lots- dated Nov. 20, 2008 $ 2,200 Geotechnical Report-Relocate of Bridge A- dated Feb. 24, 2009 1,700 $ 6,900 Below you will find a breakdown of additional Professional Service Fees for Austin Ranch Trail to date. R-Delta Additional Services NOT in Original Contract $ 5,160.00 R-Delta May 4th, 09 Retaining Wall Design @ Windhaven 5,160 $ 5,160 9603 White Rock Trail, Suite 210 Dallas, Texas 75238 (214) 553-5778 Reed Engineering Additional Services NOT in Original Contract $ 7,200.00 Geotechnical Global Stability Analysis March 5, 2009 7,200 $ 7,200 Reimbursables and Delivery $ 3,800.00 Courier expenses, printing, etc. 3,800 $ 3,800 Dunkin Sims Stoffels, Inc. and our project team appreciate the opportunity to continue working with the City of The Colony on The Colony Trail Projects. If you would like to discuss the content of this contract addendum or if I can be of further assistance please do not hesitate to contact m e. Sincerely, DUNKIN SIMS STOFFELS, INC. THE COLONY PARKS AND RECREATION DEPARTMENT CITY OF THE COLONY Dennis Sims, ASLA Mr. Keith Helms, ASLA