07-01-2014 AMENDED Agenda with backupREGULAR SESSION CITY COUNCIL
July 1, 2014,6:00 P.M.
HAL BALDWIN MUNICIPAL COMPLEX COUNCIL CHAMBERS
1400 SCHERTZ PARKWAY BUILDING #4
SCHERTZ, TEXAS 78154
Policy Values
Economic Prosperity
Fiscally Sustainable
Family Friendly for All Ages
High Quality of Life
Safe Community
Essential Services
Attractive Community
Innovative and Proactive
Service Oriented
Friendly City
Call to Order — City Council Regular Session
Invocation and Pledges of Allegiance to the Flags of the United States and State of
Texas. (Mayor Michael Carpenter)
City Events and Announcements
• Announcements of upcoming City Events (J. Bierschwale /B. James)
• Announcements and recognitions by City Manager (J. Kessel)
Presentations
• "Mayor's Summer Address" (Mayor Carpenter)
Hearing of Residents
This time is set aside for any person who wishes to address the City Council. Each person
should fill out the speaker's register prior to the meeting. Presentations should be limited to
no more than 3 minutes.
All remarks shall be addressed to the Council as a body, and not to any individual member
thereof. Any person making personal, impertinent, or slanderous remarks while
addressing the Council may be requested to leave the meeting.
07 -1 -2014 Council Agenda
Discussion by the Council of any item not on the agenda shall be limited to statements of
specific factual information given in response to any inquiry, a recitation of existing policy in
response to an inquiry, and /or a proposal to place the item on a future agenda. The presiding
officer, during the Hearing of Residents portion of the agenda, will call on those persons who
have signed up to speak in the order they have registered.
Discussion and Action Items
1. Minutes — Approve the minutes of the regular meeting of June 24, 2014. (J. Kessel /B.
Dennis)
2. Resolution No. 14 -R -54 — Approval of a Resolution authorizing and approving a
professional services agreement with Cobb, Fendley & Associates, Inc. for on -call
engineering services. (B. James /K. Woodlee)
3. Resolution No. 14 -R -55 — Approval of a Resolution authorizing and approving a
professional services agreement with Ford Engineering, Inc. for on -call engineering
services. (B. James/K. Woodlee)
4. Resolution No. 14 -R -56 — Approval of a Resolution authorizing and approving a
professional services agreement with Lockwood, Andrews & Newman, Inc. for on -call
engineering services. (B. James/K. Woodlee)
5. Resolution No. 14 -R -57 — Approval of a Resolution authorizing and approving a
professional services agreement with Pape- Dawson Engineers, Inc. for on -call
engineering services. (B. James/K. Woodlee)
6. Resolution No. 14 -R -58 — Approval of a Resolution authorizing a Professional
Services Agreement with Ford Engineering, Inc., relating to Engineering Design
Services for the Pickrell Park ADA Walkway. (B. James /K. Woodlee)
7. Ordinance No. 14 -D -17 — Consideration and/or action approving an Ordinance
amending the Code of Ordinances of the City of Schertz, Texas to prohibit parking on
Silvertree Blvd., from the intersection of Silvertree Blvd., and Dove Meadows to 110
feet Southeast of Idelwood on Silvertree Blvd. First Reading (B. James /K.Woodlee /L.
Busch)
PH 8. Ordinance No. 14 -K -31 — Conduct a public hearing and consider action on an
Ordinance closing and abandoning to the abutting property owners a twenty (20) foot
wide alley that runs parallel to the 800 Block of Main Street. First Reading (B.
James /M. Sanchez /B. Cox)
Roll Call Vote Confirmation
Requests and Announcements
9. Announcements by City Manager
• Citizen Kudos
07 -1 -2014 City Council Agenda Page - 2 -
• Recognition of City employee actions
• New Departmental initiatives
10. Requests by Mayor and Councilmembers that items be placed on a future City
Council agenda.
11. Announcements by Mayor and Councilmembers
• City and community events attended and to be attended
• City Council Committee and Liaison Assignments (see assignments below)
• Continuing education events attended and to be attended
• Recognition of actions by City employees
• Recognition of actions by community volunteers
• Upcoming City Council agenda items
Adjournment
CERTIFICATION
I, BRENDA DENNIS, CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO
HEREBY CERTIFY THAT THE ABOVE AGENDA WAS PREPARED AND POSTED ON
THE OFFICIAL BULLETIN BOARDS ON THIS THE 27TH DAY OF JUNE 2014 AT 11:30
A.M., WHICH IS A PLACE READILY ACCESSIBLE TO THE PUBLIC AT ALL TIMES
AND THAT SAID NOTICE WAS POSTED IN ACCORDANCE WITH CHAPTER 551,
TEXAS GOVERNMENT CODE.
PwevOp Dev wis
renda Dennis CPM, TRMC, MMC, City Secreta
I CERTIFY THAT THE ATTACHED NOTICE AND AGENDA OF ITEMS TO BE
CONSIDERED BY THE CITY COUNCIL WAS REMOVED BY ME FROM THE
OFFICIAL BULLETIN BOARD ON DAY OF 2014.
Title:
This facility is accessible in accordance with the Americans with Disabilities Act. Handicapped
parking spaces are available. If you require special assistance or have a request for sign
interpretative services or other services please call 210 - 619 -1030.
The City Council for the City of Schertz reserves the right to adjourn into executive session at
any time during the course of this meeting to discuss any of the matters listed above, as
authorized by the Texas Open Meetings Act.
Executive Sessions Authorized: This agenda has been reviewed and approved by the City's
legal counsel and the presence of any subject in any Executive Session portion of the agenda
constitutes a written interpretation of Texas Government Code Chapter 551 by legal counsel
for the governmental body and constitutes an opinion by the attorney that the items discussed
therein may be legally discussed in the closed portion of the meeting considering available
opinions of a court of record and opinions of the Texas Attorney General known to the
attorney. This provision has been added to this agenda with the intent to meet all elements
07 -1 -2014 City Council Agenda Page - 3 -
necessary to satisfy Texas Government Code Chapter 551.144(c) and the meeting is conducted
by all participants in reliance on this opinion.
COUNCIL COMMITTEE AND LIAISON ASSIGNMENTS
Mayor Carpenter
Mayor Pro -Tem Sca2liola — Place 2
Audit Committee
Animal Control Advisory Committee
Hal Baldwin Scholarship Committee
Cibolo Valley Local Government Corporation
Interview Committee for Boards and Commissions
Schertz Seguin Local Government Corporation
Investment Advisory Committee
Interview Committee for Boards and Commissions
TIRZ II Board
Sweetheart Advisory Committee
Councilmember Fowler — Place 1
Councilmember John - Place 3
Interview Committee for Boards and Commissions
Schertz Housing Board Liaison
Randolph Joint Land Use Study (JLUS) Executive
Committee
Councilmember Edwards — Place 4
Councilmember — Duke — Place 5
Audit Committee
Audit Committee
ASA Commuter Rail District Board — Lone Star
Investment Advisory Committee
Hal Baldwin Scholarship Committee
07 -1 -2014 City Council Agenda Page - 4 -
Agenda No. 1
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department:
Subject:
BACKGROUND
City Secretary
Minutes
The City Council held a regular meeting on June 24, 2014.
FISCAL IMPACT
None
RECOMMENDATION
Staff recommends Council approve the minutes of the regular meeting on June 24, 2014.
ATTACHMENT
Minutes — regular meeting June 24, 2014
MINUTES
REGULAR MEETING
June 24, 2014
A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on June 24,
2014, at 6:00 p.m., in the Hal Baldwin Municipal Complex Council Chambers, 1400 Schertz
Parkway, Building #4, Schertz, Texas. The following members present to -wit:
Mayor Michael Carpenter
Councilmember Jim Fowler
Councilmember Cedric Edwards
Staff Present:
Deputy City Manager John Bierschwale
Chief of Staff Bob Cantu
City Secretary Brenda Dennis
Mayor Pro -Tern David Scagliola
Councilmember Daryl John
Councilmember Matthew Duke
City Manager John Kessel
Executive Director Brian James
City Attorney Charles Zech
Deputy City Secretary Donna Schmoekel
Call to Order #*� )��
Mayor Carpenter called the Regular Meeting to order at 6:02 p.m.
Councilmember Fowler provided the invocation followed by the Ple es of Allegiance to the Flags
of the United States and the State of Texas. 11 Nor
City Events and Announcemen
• Announcements of upcoming City Events (J. Bierschwale/B. James)
Mayor Carpenter recognized Executive Director of Development Services Brian James who
provided the following announcements and upcoming events:
• Wednesday, June 25, 2014, Encanto Mexican Grill, Grand Re- Opening, 5 -6 p.m.,
6032 FM 3009, Ste. #100.
• Thursday, June 26, 2014, Cibolo Valley Local Government Corporation meeting,
9:00 a.m., Schertz Council Chambers.
• Thursday, June 26, 2014, Northeast Lakeview College, 6:00 p.m. to 7:30 p.m., is
planning a series of Community Listening Sessions that will allow elected officials
and community business leaders to share ideas on the current and anticipated
educational and workforce training needs for the community.
• Saturday, June 28, 2014, Comal Settlement's Designation as Historic Landmark
Community, 10:00 a.m., FM 482 at Old Nacogdoches Road.
• Announcements and recognitions by City Manager (J. Kessel)
06 -24 -2014 Minutes Page -1-
Mayor Carpenter recognized City Manager John Kessel who stated that he had received an
email from a citizen complimenting Police Corporal McGuire on how he handled a hit and
run accident.
Mr. Kessel also thanked all staff, particularly Deputy City Manager John Bierschwale for
covering while he was out on vacation last week.
Hearing of Residents:
No one spoke.
Workshop
• Presentation and discussion regarding the
James /C. Van Zandt)
irks Masterplan. (B.
Mayor Carpenter recognized Director of Development Services Brian James who came
forward introducing Mr. Mark Davis, member of the Parks Board stating that credit goes
out to Mr. Davis for doing the majority of the work on creating the Parks Master Plan.
Mr. Davis provided a Power Point presentation on the 2014 Parks Master Plan tentatively
called "Live & Play" with the following highlights: (A complete copy of the Power Point
can be found in the City Secretary Department)
• History of Parks Planning
- 2001 Comprehensive Land Plan
- 2007 Schertz Parks Master Plan developed and Design Partners
- 2014 Parks Master Plan — builds on previous plans — done "in house" by Parks
Advisory Board
• 2014 Parks Master Plan
- Written "In- House" Engaged Parks Advisory Board
- Researched and written throughout 2013
9 Chapters — 256 pages
More than 805 editing revisions
Over 1 I 1 hours of plan editing
Time does not include Board meetings, site visits to each park, coordination
with City Staff, TPWD, etc.
• Chapter 3 — Demographics
- Based on 2010 census date
- Population growth forecasts based on data developed in Gateway Section Plan
Report
• Chapter 4 — Current Inventory
- Site visits conducted at all parks
- Identified maintenance issues at each location
- Expanded information; included counts of installed amenities
06 -24 -2014 Minutes Page - 2 -
• Chapter 5 — On- Line Public Survey
- Conducted from October 2012 through March 2013
- 329 participants (252 participants in 2007 survey)
• Chapter 6 — Our Desired State
- National Standards
. Original NRPA standards & 2013 NRPA Proragis Stats
- Our peers — approximately 40 comparable Texas cities
- Where is Schertz heading and what are other cities doing?
- What's unique to Schertz and what do our residents want?
• Chapter 7 — Our Goals, Objectives and Specific Actions
- Provides long term, planned growth for Parks and Recreation
- Maintains desire to expand partnerships where possible
- Allow for maximum flexibility ..,
Mr. Davis pointed out that they have already had Texas Parks and Wildlife take a look at the
plan. He stated they are happy with it and it meets all their criteria. He stated that like the
2007 Plan, once this is adopted by the City it will allow the City to be eligible for grants
through the Texas Parks and Wildlife to help support the program.
Mr. Davis thanked the Parks
the plan together:
•
•
•
.mr •
Director of IT, Myles
GIS Manager, Tony N
Library Director, Melissa Uhlhorn
Executive Director of Development Services Brian James
Former Parks Director George Logan
Park Manager Chuck Van Zandt 4W
Sr. Administrative Assistant Sandy Bryant
Customer Relations /311 Operator Sherry Davis
assisting him in putting
Mr. Davis stated that the next step is to get permission from the Council to forward this to the
Planning and Zoning Commission for review.
Mayor Carpenter recognized Executive Director of Development Services Brian James who
stated that what staff would like to do is adopt this as an amendment to our Comprehensive
Land Use Plan that becomes the basis of our decision making. To do this we will take it to
the Planning and Zoning Commission and ask them for a recommendation and then bring it
to the City Council for approval.
Mr. James and Mr. Davis addressed questions from Council. Mr. James stated that they are
planning to move this quickly through as it is a good document and one they would like to
submit to the Park and Planning Association for their awards as an example of what a board
can do in- house. Mr. James stated that this is a very user friendly easy to understand
document. Mayor and Council provided their comments and concurred that this was
exceptional work that is going to serve the City for several years.
06 -24 -2014 Minutes Page - 3 -
• Discussion and information from staff on the man -hours spent having staff attend four
Council meetings per month and look at options of going to two meetings per month.
(Item requested by Councilmember Edwards) (J. Bierschwale)
Mayor Carpenter recognized Deputy City Manager John Bierschwale who stated that at
the request of Councilmember Edwards last week he has placed this on the agenda to
provide options and get direction from council.
Mr. Bierschwale stated he and City Secretary Brenda Dennis contacted a couple of
surrounding cities to gather information on the number and length of their council
meetings. Information included:
• City of Cibolo - Meets 2 times per month, start at 7:00 p.m. - 4 to 5 hours per
meeting, some meetings are longer, 12:00 a.m., due to lengthy executive session
items.
• City of Converse — Meets 2 times per month, start at 7:00 p.m. - 2 to 3 hours
• City of Seguin — Meets 2 times per month, start at 5:30 p.m. - average 2 hours
• City of Live Oak — Meets 2 times per month, start at 7:00 p.m. — average 2 hours
Mr. Bierschwale stated that our past history has always been the city having four
meetings per month. In the earlier years the Council held two (2) workshops and two (2)
regular Council meetings, and if there was a fifth Tuesday in the month it was reserved to
either conduct a meeting or cancel. During the time when Council was holding their
workshops they found they needed to take action on some items and that is when the City
went to four (4) regular meetings per month.
Mr. Bierschwale stated the big change that he has noticed since changing law firms, is
that our meetings have gone from three to four hours to two hours on an average,
sometimes we have three hour meetings based upon the length of discussion of items. He
stated the advantage of meeting weekly is our citizens know that every Tuesday night the
Council is meeting and they can come and voice their concerns. Speaking as a citizen he
appreciates this opportunity, that if he has an issue he knows that he can bring it to the
council and not have to wait. As a citizen this is important, as an employee he values
hearing from the citizens because we need to make sure we are addressing their needs.
Mr. Bierschwale stated that moving forward it is time for Council to make a decision to
either continue the tradition of four (4) meetings per month, having the flexibility to act
on projects like Amazon.com and Sysco in a timely manner or go to meeting twice a
month resulting in project approval delays and in more agenda items and longer meeting
times. He reminded Council that they have given staff the option and can continue to do
this and that when we have few items forthcoming on a particular Council meeting date
staff could move those items to the next meeting date, thus cancelling a meeting. He
gave the example of tonight's agenda, which all of the items could have been pushed to
the next meeting. Mr. Bierschwale stated that if Council can provide their direction on
how they want staff to move forward they can come back with a policy for approval.
06 -24 -2014 Minutes Page - 4 -
Mayor Carpenter recognized Councilmember Edwards who stated he doesn't agree with
skipping meetings. He wanted to know what it was costing us in payroll and what is it
costing in man hours. Mr. Bierschwale stated the only actual cost; actually a cost to the
citizens, is our security. They are paid hourly. The majority of staff that is here tonight,
and usually at most Council meetings, are exempt employees; we are expected to do this
job. This includes Department Heads and Administrative Staff, when you take those,
what we have in man hours is 132 man hours a month based on these individuals.
Typically on the average we have five (5) Department Heads and six (6) Administrative
Staff attending a meeting. That totals 132 man hours; we also take one patrol officer and
one warrant officer for security, which is vital to continue MkIg security at Council
meetings.
Mayor Carpenter recognized Councilmember Duke who stated he thinks the City staff
does a great job in getting things together for the council meetings; has there been anyone
looked at how much it costs to prepare for a meeting? City Manager John Kessel said he
didn't know if there would be a lot of savings going from four meetings to two meetings
per month, but for certain staff there are peak concerns (City Secretary's office) every
single week which also affects the City Manager's office a little bit. It is a capacity issue
that has to be managed. At the Department Head level, staff reports need to be written;
that number does not change regardless of the number of meetings. When we do
economic development deals it is nice to act on any given Tuesday. If an issue needs to
be tabled or pulled, we can address it at the next meeting instead of waiting two weeks.
Councilmember Duke said he liked the consistency of meetings each week but does not
like the idea of pushing a meeting. He stated that we can also use the option to call
special meetings as needed. M AW �
Mayor Carpenter recognized Councilmember Fowler who stated he looks at it from the
viewpoint of our customers and how we are currently able to quickly turn around and
address the projects and issues before us. He pointed out that when a first and second
vote is needed on an item, it would lengthen the time to get this done if we went to two
meetings per month. He also believes there is no reason to have a meeting if we have
very few items on the agenda.
Mayor Carpenter recognize ayor Pro -Tem Scagliola who stated he liked consistency
and stability. As far as sta goes, the ones that are here are of exempt status. The only
real cost is for the security. Deputy City Manager John Bierschwale stated he believes
the security is needed in this day and age and it is better not to take any chances. Mayor
Pro -Tem Scagliola stated he doesn't mind the four meetings per month and if we do need
to push one meeting now and then, he supports that.
Mayor Carpenter reminded everyone that we did use to have two meetings and two
workshops per month but since we needed to take action in many cases it was more
efficient to change that to four regular meetings per month. This also results in a better
selling point as we are able to respond quickly to a business who wants to invest in our
City. Additionally, the citizens can easily remember that they can come any Tuesday of
the month to address Council with a concern they may have. In regard to security, it is
mainly about protecting the citizens and other visitors who come to attend the meetings.
He recommended we maintain the current arrangement of four meetings a month as it
appears to be working well for our needs.
06 -24 -2014 Minutes Page - 5 -
Council decided to take the subject up again at the end of the meeting as to whether or
not to put it on the agenda for action at the next city council meeting.
Consent Agenda Items
Mayor Carpenter recognized Mayor Pro -Tem Scagliola who requested agenda item 2 be removed for
separate action.
The Consent Agenda is considered self - explanatory and will be enacted by the Council with one
motion. There will be no separate discussion of these items unless they are removed from the
Consent Agenda upon the request of the Mayor or a Councilmember.
A
1. Minutes — Approve the minutes of the regular meeting of Xu2014. (J. Kessel /B.
Dennis)
3. Appointments/ Reappointments and Resignations to City Boards, Commissions and
Committees — Consideration and/or action regarding appointments to the Library Board and
the Transportation Safety Advisory Commission. (Mayor /Council /B. Dennis)
Appointment of Mr. Howson Lau as a regular member to the Library Board and the
appointment of Mr. Richard Dziewit as alternate member to the Transportation Safety
Advisory Commission. ia., '1K
Mayor Carpenter recognized Mayor Pro -Tem Scagliola who moved, seconded by
Councilmember Fowler to approve the consent agenda items 1 and 3. The vote was
unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, Edwards and
Duke voting yes and no one voting no. Motion Carried.
Discussion and Action Items
2. Resolution No. 14 -R -52 — Approval of a Resolution authorizing an amendment to the
existing agreement for the upgrading of internet access services provided by Time Warner
Cable to the Schertz Public Library at 798 Schertz Parkway from a 10 MBPS Services to a
50 MBPS Service. (B. James/M. Clauser)
The following was read into record:
Tr RESOLUTION NO. 14 -R -52
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
AUTHORIZING AN AMENDMENT TO THE EXISTING AGREEMENT FOR THE
UPGRADING OF INTERNET ACCESS SERVICES PROVIDED BY TIME
WARNER CABLE TO SCHERTZ PUBLIC LIBRARY AT 798 SCHERTZ PKWY
FROM A 10 MBPS SERVICE TO A 50 MBPS SERVICE TO INCREASE
BANDWIDTH FOR PUBLIC USE AND STAFF USE, AND OTHER MATTERS IN
CONNECTION THEREWITH
06 -24 -2014 Minutes Page - 6 -
Mayor Carpenter recognized Mayor Pro -Tem Scagliola who asked if the Library was aware
of the overall cost of this upgrade to the internet for the library computers and if there was a
better use for the $10,000 cost of it. Executive Director of Development Services Brian
James confirmed they were indeed aware of it and that this money was spent for addressing
the numerous complaints by patrons who kept getting knocked off of the internet when trying
to use the library computers. This was now the library employee's biggest issue facing them
on a daily basis. The Library has about 100 computers and the IT Department spends about a
third of their time /support for them. The Library has had to cancel some of their classes
because of their inability to serve their patrons. Mayor Pro -Tem Scagliola asked why some
of the money is coming out of the Library funds and the other part of the money is coming
out of the IT Department. Mr. James stated it was that big of an issue and they did not want
to wait until next fiscal year to fix it. It is summer time and kids and parents are coming in
frequently to use the computers. IT and the Library partnered to accomplish this.
Councilmember Duke asked if this is enough capacity to serve the public now. IT Director
Myles Clauser said that in the long run no, but it is as far as we can go for the moment. The
next step would be to spend a lot of money and drop some fiber in. Councilmember Edwards
asked if we had access to any corporate partners who could help with grant money. Mr.
Clauser stated that since the Library is an educational institution, they are exploring the
possibility of going to an a -rate, which the state subsidizes heavily. However, this is a two
year process. Right now they are concentrating on the short term fixes. Long term is
something we will look at in the next year. Councilmember Edwards asked if $10,000 was
enough to put us where we need to be. Mr. James assured Council that IT staff is very
forward looking and the Department has a master plan in place and the problems are being
tackled in various ways, including playing catch up first where needed.
City Manager John Kessel stated he also spoke with members of the Library Board and this
is their number one item to be addressed. Approval by Council tonight would fix the
problem now rather than waiting for next fiscal year.
Mayor Carpenter recognized Mayor Pro -Tem Scagliola who moved, seconded by
Councilmember Fowler to approve Resolution No. 14 -R -52. The vote was unanimous with
Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, Edwards and Duke voting yes
and no one voting no. Motion Carried.
4. Resolution No. 14 -R -53 — Approval of a Resolution acknowledging and supporting the
business plan of Cibolo Valley Local Government Corporation for the development of water
resources. (J. Bierschwale /S. Willoughby /A. Cockerell)
The following was read into record:
RESOLUTION NO. 14 -R -53
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
ACKNOWLEDGING AND SUPPORTING THE BUSINESS PLAN OF CIBOLO
VALLEY LOCAL GOVERNMENT CORPORATION FOR THE DEVELOPMENT
OF WATER RESOURCES; AND ESTABLISHING AN EFFECTIVE DATE.
06 -24 -2014 Minutes Page - 7 -
Mayor Carpenter recognized Schertz Seguin Local Government Corporation General
Manager Alan Cockerell who announced that just last week they were notified by the City of
Converse that they are officially withdrawing from the Cibolo Valley Local Government
Corporation ( CVLGC). Once the organization is reorganized it will comprise of only the
City of Cibolo and the City of Schertz. Both cities will have similar water demands in the
future and he predicts this partnership will be very effective.
Mayor Carpenter recognized Councilmember Edwards who asked whether the business plan
would be redone now. Mr. Cockerell stated that it is the same project but the financials will
now be recomputed between just two cities instead of three. Mr. Edwards also asked if there
was a reason Converse pulled out, as it is common knowledge that they are in great need of
water. Mr. Cockerell responded that he thought the project was a little larger than what they
felt they needed. Their council already took action last Tuesday via a resolution, thereby
making the decision final. Now the CVLGC has resolutions ready for their Thursday meeting
to amend the articles of incorporation/bylaws and memo of understanding for the remaining
two owner cities and will soon be bringing those documents to this council for approval. Mr.
Edwards asked if we, as a governing body, did everything possible to make this partnership
to include the City of Converse work. Deputy City Manager John Bierschwale assured him
that this had been done. City Manager John Kessel added that Mr. Bierschwale had
personally met with members of the Converse staff to help walk them through the basics.
Mayor Carpenter stated that the City of Schertz extended the opportunity to get into the water
business many times with other cities and we have been repeatedly turned down. While the
need is everywhere for more water, the other cities have chosen not to partner with us. As a
future customer they will simply have to pay higher rates for the water.
Mayor Carpenter recognized Mr. Steve White, Board Member, who stated that we are
following the lead from Schertz- Seguin many years ago. We are trying to build another
complete system separately. We will then rely on each other for emergencies. This is a 25
year plan, which is just the start. We have to have this water. Ultimately, all the cities around
us will become our future customers and they will end up paying for our system. It is a good
business decision. W
Mayor Carpenter recognized Councilmember Fowler who asked how many members were
originally on board with this project and were any of these other cities planning on building
their own pipeline. Mr. Cockerell confirmed the original number of participants was five and
now we are down to two. None of the other cities are planning to build their own water plant
system. Seguin does not have the need for it and Selma and Converse just want to be
wholesale customers. There was no professional or personal conflict regarding their
decision; Converse is in fact looking at other options. Councilmember Scagliola also stated
that Converse has had reservations for a long time already and their decision was based on
finances.
Mayor Carpenter recognized Councilmember Duke who stated he understands that we are
acknowledging that the business plan has additional financial support we have to complete so
could we just table this until next week and approve it all then and make sure the business
plan accurately reflects what we are actually going to do. Mr. Cockerell replied that they are
working on a re- organization of the articles of incorporation, bylaws, and memo of
understanding of the two owner cities that their board will pass on Thursday and then bring
forward to the owner cities. They will also be updating the business plan. At some point the
CVLGC will borrow some money to build the project and will come to each city council to
get approval for any bond funding. He recommended approving the resolution this evening
06 -24 -2014 Minutes Page - 8 -
understanding that the business plan is an ongoing working document and they will be
working with the city on those financial requirements.
City Manager John Kessel asked how long it might take to make the modifications to the
business plan. Mr. Cockerell stated it was just a matter of changing the cost division from
three to two. It is a working document as we move forward. They are currently in the
process of acquiring some water rights property and once that is better defined it will give us
a clearer picture of the future activities and costs.
Councilmember Duke and Councilmember Scagliola suggested delaying the approval of the
resolution to allow time for the business plan to be modified to accurately reflect the
financial responsibility of two cities (Cibolo and Schertz), inst d of three.
No action was taken on this item.
Executive Session
Mayor Carpenter recessed the regular meeting into executive session at 7:25 p.m.
9. City Council will meet in closed session under section 551.074 Evaluation of the City
Secretary and Deputy City Secretary.
Reconvene into Regular Session
Mayor Carpenter reconvened into regular session at 8:50 p.m., and moved to the roll call vote
confirmation.
Roll Call Vote Confirmation
Mayor Carpenter recognized Deputy City Secretary Donna Schmoekel who recapped the votes of
items 1 throu
OW
Mayor Carpenter moved to agenda item 9a.
e`
9.a. Take any necessary action based on discussions held in closed session under Agenda
Item number 9.
Mayor Carpenter recognized Councilmember Duke who moved, seconded by
Councilmember Fowler, to approve a 2 percent pay increase for the City Secretary and a 4
percent pay increase for the Deputy City Secretary with an effective date of April 1, 2014.
Mayor Carpenter called for the vote. The vote was unanimous with Mayor Pro -Tem
Scagliola, Councilmembers Fowler, John, Edwards and Duke voting yes and no one
voting no. Motion Carried.
Roll Call Vote Confirmation
Mayor Carpenter recognized Deputy City Secretary Donna Schmoekel who recapped the votes of
agenda item 9a.
06 -24 -2014 Minutes Page - 9 -
Requests and Announcements
5. Announcements by City Manager
• Citizen Kudos
• Recognition of City employee actions
• New Departmental initiatives
No further announcements were provided.
6. Requests by Mayor and Councilmembers that items be placed on*'& future City Council
agenda.
Mayor Carpenter recognized Councilmember Edwards who stated we had talked in the past
about ride shares like Uber and Lift. Currently we don't have a taxi service in Schertz. As
we grow we need to consider how we are going to police those areas and control them. We
need to get our hands around that before it gets out of hand;
7. Announcements by Mayor and Councilmembers
• City and community events attended and to be attended
• City Council Committee and Liaison Assignments (see assignments below)
• Continuing education events attended and to be attended
• Recognition of actions by City employees
• Recognition of actions by community volunteers
• Upcoming City Council agenda items
Mayor Carpenter recognized Mayor Pro -Tem Scagliola who stated he attended the following:
o Thursday, June 19, SSLGC Meeting in Seguin
o Saturday, June 21, Debbie Pape's Birthday Party at Schertz Senior Center
o Schertz Veterans Memorial Plaza
Mayor Carpenter recognized Councilmember Fowler who stated he attended the following:
�To Schertz Veterans Memorial Plaza
Mayor Carpenter stated that if anyone has not been to the Veterans Memorial plaza yet to take the
time to go by and enjoy it. It has surpassed his expectations and is striking and beautiful.
Adjournment
As there was no further business, the meeting was adjourned at 8: 59 p.m.
Michael R. Carpenter, Mayor
ATTEST:
06 -24 -2014 Minutes Page - 10 -
Brenda Dennis, City Secretary
06 -24 -2014 Minutes Page - > > -
Agenda No. 2
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department: Engineering
Subject: Resolution No. 14 -R -54 — A Resolution of
the City Council of the City of Schertz,
Texas authorizing and approving a
Professional Services Agreement with Cobb,
Fendley, & Associates, Inc. for On -Call
Engineering Services and all matters in
connection therewith
BACKGROUND
The City of Schertz advertised for Request for Qualifications for On -Call Engineering Firms in
February 2014. Statements of Qualifications were received by the City of Schertz on March 18,
2014. Statements were received from 26 firms. A panel of five City Staff and Management
representatives reviewed each of the documents submitted in detail. The submittals were evaluated
for the following criteria:
1. Understanding of the requirement;
2. Management ability;
3. Commitment to quality;
4. Qualifications and experience of key personnel;
5. Resources and facilities;
6. Relevant prior experience; and
7. Past performance, particularly with City contracts.
The panel met on several occasions to discuss the submittals and come to consensus regarding six
firms to be invited for personal interviews.
Interviews were held with the firms at the end of April. The panel again met to discuss results of the
interviews.
It is recommended that the City award On Call Engineering Services Agreements to the following
consulting engineering firms:
• Cobb, Fendley & Associates, Inc.
• Ford Engineering, Inc.
• Lockwood, Andrews & Newman, Inc.
• Pape- Dawson Engineers, Inc.
Having this group of firms available for consultation allows the City to utilize the most qualified firm
for each particular project based on the particular engineering qualifications and experience.
The agreements for On -Call Engineering Services will remain in force for three years with two
optional one -year extensions.
Once a project is identified and consulting services are needed, Staff will identify which of the four
on -call firms is best suited for the project. A proposed scope, fee, and schedule will be requested and
a project - specific agreement will be negotiated with that firm. The award of the On -Call Agreement
allows the City to avoid an RFQ process for every project — small or large — and to enter into a
contract with a firm already fully vetted and deemed to be best qualified for the project. Staff will
also be able to request assistance with general engineering services such as plan review, standard
detail and specification development, design services needed for maintenance or rehabilitation
projects for which City personnel will perform the construction work.
Goal:
Approve Resolution 14 -R -54 approving a three -year Professional Services Agreement for On -Call
Engineering with Cobb, Fendley, & Associates.
Community Benefit:
The City will be able to utilize the most qualified firm for each particular project based on the firms
qualifications and experience, resulting in an effective and efficient project process to insure that the
citizens and businesses of Schertz are provided with top -notch facilities and services.
Summary of Recommended Action:
Approve Resolution 14 -R -54 approving a three -year Professional Services Agreement with Cobb,
Fendley, & Associates.
FISCAL IMPACT
Fiscal impact will vary with particular projects and the use of a specific firm and their fee schedule as
outlined in the Professional Service Agreement.
STAFF RECOMMENDATION
Staff recommends approval of Resolution 14 -R -54
ATTACHMENT(S)
Resolution 14 -R -54
RESOLUTION NO. 14 -R -54
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AND APPROVING A
PROFESSIONAL SERVICES AGREEMENT WITH COBB, FENDLEY, &
ASSOCIATES, INC. FOR ON -CALL ENGINEERING SERVICES AND
ALL MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has determined that the City
requires a professional services agreement with Cobb, Fendley, & Associates, Inc. relating to on-
call engineering services for the City; and
WHEREAS, City staff has determined that Cobb, Fendley, & Associates, Inc. is qualified
to provide such services for the City; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Cobb, Fendley, & Associates, Inc. pursuant to the Professional Services Agreement
for Engineering Services attached hereto as Exhibit A (the "Agreement ").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Cobb, Fendley, & Associates, Inc. in substantially the form set forth
on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 1St day of July, 2014.
CITY OF SCHERTZ, TEXAS
Michael Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(CITY SEAL)
50506887.1
EXHIBIT A
SECOND AMENDMENT TO AGREEMENT FOR ENGINEERING SERVICES
50506887.1 A -1
CITY OF SCHERTZ
ON CALL ENGINEERING SERVICES MASTER AGREEMENT
TAE STATE OF V
COUNTY GUADALUPE
This On Call Engineering Services Agreement (Agreement) is made and entered into by and
between the City of Schertz, Texas (City), a Texas municipality, and Cobb, Fendley &
Associates, Inc. (Professional).
Section 1. Duration. This Agreement shall become effective upon the date executed
below and shall remain in effect for a period of three years from its execution unless
terminated as provided for herein.
This Agreement may be extended if approved by the City Council for a period of one year.
A maximum of two extensions may be made.
This Agreement shall remain in force automatically beyond the effective term for a period
which may reasonably be required for the satisfactory completion of a project which is
already underway at the time of term expiration unless otherwise terminated as provided for
herein.
Section 2. Scope of Work.
(A) In consideration of the Professional's three year authority to provide the Services
provided for herein, and other consideration the sufficiency and receipt of which is hereby
acknowledged, the Professional shall provide on -call engineering services to the City for
purposes of general consulting, design, bid, and construction phase services the City of
Schertz to include:
1. Water Transmission and distribution
2. Wastewater collection and conveyance
3. Streets, drainage and site work
Projects for which services will be needed may include new infrastructure, miscellaneous
improvements, modifications, and upgrades to existing facilities, which will require a Scope
of Services to be provided by a qualified consultant(s) or consulting firm(s) or team.
(B) The Professional shall provide plans, technical specifications, bid and construction
phase support, and other related services, as requested, not limited to:
1. General Service including presentations at meetings and other Professional
services as requested.
On Call Engineering Services Master Agreement CobbFendley 2014 Pagel of 6
2. Design services including field surveys, testing, design concepts. providing
probable construction costs, document progress intervals, provide detailed plans
and specifications, and other related services to design the project and prepare it to
bid.
3. Prepare documents for, and coordinate with other utilities and associated
local, state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits.
4. During construction phase, provide construction stakes as requested,
prepare change orders, specifications and documentation, make recommendations
on Contractor change order requests, attend progress meetings and monitor
construction schedule, provide observation and owner representation during
construction, review and process all submittals, recommend substantial completion
of the project, prepare record drawings, perform final inspection and report on final
completion of the project.
The provisions of Service required shall be referred to herein as the "Scope of
Work ".
(C) The quality of Services provided under this Agreement shall be of the level of
professional quality performed by Professionals regularly rendering this type of
service.
(D) The Professional shall perform its Services for the Project in compliance with
all statutory, regulatory and contractual requirements now or hereafter in effect as
may be applicable to the rights and obligations set forth in the Agreement.
(E) The Professional may rely upon the accuracy of reports and surveys provided
by the City except when defects should have been apparent to a reasonably
competent professional or when it has actual notice of any defects in the reports and
surveys.
(F) The Professional shall be required to execute a project contract in
substantially the same form as the attached "Exhibit A" for each assigned Scope of
Services project.
Section 3. Compensation. The Professional shall be compensated pursuant to
the agreed upon fee schedule which shall be "Exhibit B" to this Agreement.
Section 4. Time of Completion. The prompt completion of the services relating to
any Scope of Work is critical to the City. Unnecessary delays in providing services
under the Scope of Work shall be grounds for dismissal of the Professional and
termination of this Agreement without any or further liability to the City other than a
prorated payment for necessary, timely, and conforming work done by Professional
prior to the time of termination. The Scope of Work shall provide, in either calendar
On Call Engineering Services Master Agreement CobbFendley 2014 Page 2 of 6
days or by providing a final date, a time of completion prior to which the Professional
shall have completed all tasks and services described in the Scope of Work.
Section 5. Additional Provisions.
(A) Subletting. The Professional shall not sublet or transfer any portion of the
work under this Agreement or any Scope of Work issued pursuant to this Agreement
unless specifically approved in writing by the City.
(B) Compliance with Laws. The Professional shall comply with all federal, state
and local laws, statutes, ordinances, rules and regulations, and the orders and
decrees of any courts, administrative, or regulatory bodies in any matter affecting
the performance of this Agreement, including, without limitation, worker's
compensation laws, minimum and maximum salary and wage statutes and
regulations, and licensing laws and regulations. When required, the Professional
shall furnish the City with satisfactory proof of compliance.
(C) Independent Contractor. Professional acknowledges that Professional is an
independent contractor of the City and is not an employee, agent, official or
representative of the City. Professional shall not represent, either expressly or
through implication, that Professional is an employee, agent, official or
representative of the City. Income taxes, self - employment taxes, social security
taxes and the like are the sole responsibility of the Professional.
(D) Non - Collusion. Professional represents and warrants that Professional has
not given, made, promised or paid, nor offered to give, make, promise or pay any
gift, bonus, commission, money or other consideration to any person as an
inducement to or in order to obtain the work to be provided to the City under this
Agreement. Professional further agrees that Professional shall not accept any gift,
bonus, commission, money, or other consideration from any person (other than from
the City pursuant to this Agreement) for any of the services performed by
Professional under or related to this Agreement. If any such gift, bonus,
commission, money, or other consideration is received by or offered to Professional,
Professional shall immediately report that fact to the City and, at the sole option of
the City, the City may elect to accept the consideration for itself or to take the value
of such consideration as a credit against the compensation otherwise owing to
Professional under or pursuant to this Agreement.
(E) In the case of any conflicts between the terms of this Agreement and wording
contained within the Scope of Services, this Agreement shall govern. The Scope of
Services is intended to detail the technical scope of services, fee schedule, and
contract time only and shall not dictate Agreement terms.
On Call Engineering Services Master Agreement CobbFendley 2014 Page 3 of 6
Section 6. Termination.
(A) This Agreement may be terminated:
1. By the mutual agreement and consent of both Professional and City;
2. By the City, immediately upon notice in writing to the Professional, as
consequence of the failure of Professional to perform the services contemplated by
this Agreement in a timely or satisfactory manner;
3. By the City, at will and without cause upon not less than thirty (30) days
written notice to the Professional.
Section 7. Indemnification. Professional agrees to indemnify and hold the
City of Schertz, Texas and all of its present, future and former agents,
employees, officials and representatives harmless in their official, individual
and representative capacities from any and all claims, demands, causes of
action, judgments, liens and expenses (including attorney's fees, whether
contractual or statutory), costs and damages (whether common law or
statutory), costs and damages (whether common law or statutory, and
whether actual, punitive, consequential or incidental), of any conceivable
character, for injuries to persons (including death) or to property (both real
and personal) created by, arising from or in any manner relating to the
services or goods performed or provided by Professional — expressly
including those arising through strict liability or under the constitutions of the
United States or Texas — BUT ONLY TO THE EXTENT ALLOWABLE BY SEC.
271.904(a) OF THE TEXAS LOCAL GOVERNMENT CODE AS APPLICABLE.
Section 8. Notices. Any notice required or desired to be given from one party to
the other party to this Agreement shall be in writing and shall be given and shall be
deemed to have been served and received (whether actually received or not) if (i)
delivered in person to the address set forth below; (ii) deposited in an official
depository under the regular care and custody of the United States Postal Service
located within the confines of the United States of America and sent by certified
mail, return receipt requested, and addressed to such party at the address
hereinafter specified; or (iii) delivered to such party by courier receipted delivery.
Either party may designate another address within the confines of the continental
United States of America for notice, but until written notice of such change is
actually received by the other party, the last address of such party designated for
notice shall remain such party's address for notice.
Section 9. No Assignment. Neither party shall have the right to assign that party's
interest in this Agreement without the prior written consent of the other party.
On Call Engineering Services Master Agreement CobbFendley 2014 Page 4 of 6
Section 10. Severability. If any term or provision of this Agreement is held to be
illegal, invalid or unenforceable, the legality, validity or enforceability of the
remaining terms or provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable term or provision, there shall be
added automatically to this Agreement a legal, valid or enforceable term or provision
as similar as possible to the term or provision declared illegal, invalid or
unenforceable.
Section 11. Waiver. Either City or the Professional shall have the right to waive
any requirement contained in this Agreement that is intended for the waiving party's
benefit, but, except as otherwise provided herein, such waiver shall be effective only
if in writing executed by the party for whose benefit such requirement is intended.
No waiver of any breach or violation of any term of this Agreement shall be deemed
or construed to constitute a waiver of any other breach or violation, whether
concurrent or subsequent, and whether of the same or of a different type of breach
or violation.
Section 12. Governing Law; Venue. This Agreement and all of the transactions
contemplated herein shall be governed by and construed in accordance with the
laws of the State of Texas. The provisions and obligations of this Agreement are
performable in Guadalupe County, Texas such that exclusive venue for any action
arising out of this Agreement shall be in Guadalupe County, Texas.
Section 13. Paragraph Headings; Construction. The paragraph headings
contained in this Agreement are for convenience only and shall in no way enlarge or
limit the scope or meaning of the various and several paragraphs hereof. Both
parties have participated in the negotiation and preparation of this Agreement and
this Agreement shall not be construed either more or less strongly against or for
either party.
Section 14. Binding Effect. Except as limited herein, the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, devisees, personal and legal representatives, successors
and assigns.
Section 15. Gender. Within this Agreement, words of any gender shall be held
and construed to include any other gender, and words in the singular number shall
be held and construed to include the plural, unless the context otherwise requires.
Section 16. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
On Call Engineering Services Master Agreement CobbFendley 2014 Page 5 of 6
Section 17. Entire Agreement. It is understood and agreed that this Agreement
contains the entire agreement between the parties and supersedes any and all prior
agreements, arrangements or understandings between the parties relating to the
subject matter. No oral understandings, statements, promises or inducements
contrary to the terms of this Agreement exist. This Agreement cannot be changed
or terminated orally.
Section 18. Disclosure of Business Relationships /Affiliations; Conflict of
Interest Questionnaire. Professional represents that it is in compliance with the
applicable filing and disclosure requirements of Chapter 176 of the Texas Local
Government Code.
EXECUTED on this the day of
CITY:
By:
Name: John C. Kessel
Title: City Manager
ADDRESS FOR NOTICE:
CITY
City of Schertz
Attn: John C. Kessel, City Manager
1400 Schertz Parkway
Schertz, Texas 78154
with a copy to:
City Attorney
City of Schertz, Texas
Attn: Charles E. Zech
2517 N. Main Avenue
San Antonio, Texas 78212
M,
.O
B W
PROFESSIONAL
Cobb, Fendley & Associates, Inc.
13430 Northwest Freeway, Suite 1100
Houston, TX 77040
On Call Engineering Services Master Agreement CobbFendley 2014 Page 6 of 6
1 D
This Agreement is entered into in the City of Schertz, Texas, between the City of Schertz, a
Texas municipal corporation, hereinafter called "CITY" and /or "OWNER ", and CONSULTANT
NAME AND ADDRESS.
Engineer(s), duly licensed, and practicing under the laws of the State of Texas, hereinafter called
"CONSULTANT ", this Agreement being executed by City pursuant to appropriate action by the
City Council of CITY and by CONSULTANT, for engineering services hereinafter set forth in
connection with the above designated Project for CITY.
ARTICLE 1
DEFINITIONS
ARTICLE 2
SCOPE OF SERVICES
ARTICLE 3
COMPENSATION FOR SERVICES
ARTICLE 4
METHOD OF PAYMENT
ARTICLE 5
TIME, SCHEDULE, AND PERIOD OF SERVICE
ARTICLE 6
COORDINATION WITH CITY
ARTICLE 7
REVISIONS TO DRAWINGS AND SPECIFICATIONS
ARTICLE 8
OWNERSHIP OF DOCUMENTS
ARTICLE 9
TERMINATION AND /OR SUPENSION OF WORK-
ARTICLE 10
CONSULTANT'S WARRANTY
ARTICLE 11
ASSIGNMENT OR TRANSFER OF INTEREST
ARTICLE 12
INSURANCE REQUIREMENTS
ARTICLE 13
INDEMNIFICATION
ARTICLE 14
CLAIMS AND DISPUTES
ARTICLE 15
SEVERABILITY
ARTICLE 16
ESTIMATES OF COST
ARTICLE 17
INTEREST IN CITY CONTRACTS PROHIBITED
ARTICLE 18
CONFLICTS OF INTEREST DISCLOSURE
ARTICLE 19
STANDARD OF CARE
ARTICLE 20
RIGHT OF REVIEW AND AUDIT
ARTICLE 21
ENTIRE AGREEMENTS
ARTICLE 22
VENUE
ARTICLE 23
NOTICES
ARTICLE 24
INDEPENDENT CONTRACTOR
ARTICLE 25
CAPTIONS
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
ATTACHMENT 2
PROJECT DESIGN PHASES COST AND TIMELINE
ATTACHMENT 3
BILLING RATE SCHEDULE
ATTACHMENT 4
ADDITIONAL PROJECTS AND /OR EXPANDED SCOPE
OF SERVICES
Project Agreement for Engineering Services rev 03122014 Page 1
ARTICLE 1: DEFINITIONS
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE MEANINGS
AS SET OUT BELOW:
Agreement means this Master Agreement between CITY and CONSULTANT that
establishes the terns and conditions for all Projects to be carried out under this
Agreement.
Application for Compensation means the form CONSULTANT uses to make a request
to be paid for completed services.
Application for Payment means the form. CONSTRUCTION CONTRACTOR uses to
make a request to be paid for completed work.
Certificate for Payment means the form CONSULTANT uses to make
recommendations on CONSTRUCTION CONTRACTOR'S Application for Payment.
CITY means the City of Schertz, Texas.
Claim means a demand or assertion by one of the parties seeking, as a matter of right,
adjustment, or interpretation of the terms of this Agreement, payment of money,
extension of time, or other relief with respect to the terms of this Agreement. The term
"claim" also includes other disputes and matters in question between the OWNER and
CONSULTANT arising out of or relating to this Agreement.
Compensation means amounts paid by CITY to CONSULTANT for completed services
under this Agreement.
CONSTRUCTION CONTRACTOR means the firm hired by CITY to construct the
Project.
Construction Contract Documents means the contract between the CITY and the firm
contracted by CITY to construct the Project and all documents therein.
CONSULTANT means the entity named on the cover page of this Agreement and its
officers, partners, employees, agents, and representatives, and all its subconsultants, if
any, and all other persons or entities for which CONSULTANT is legally responsible.
ENGINEER means CITY's City Engineer.
Final Compensation means the final amounts paid by CITY to CONSULTANT for
completed services under this Agreement.
Final Payment means the final amounts paid by CITY to CONSTRUCTION
CONTRACTOR for completed work under the construction contract.
Project Agreement for Engineering Services rev 03122014 Page 2
Opinion of Probable Construction Cost means CONSULTANT'S estimate of probable
construction cost for a Project based on its experience and qualifications as a practitioner
of its profession and the current costs in the local area.
O"ER means the City of Schertz, Texas.
Payment means amount paid by CITY to CONSTRUCTION CONTRACTOR for work
performed under the Construction Contract Documents.
Plans and Specifications means the construction documents.
Project means the capital improvement/construction development undertalcing of CITY
for which CONSULTANT'S services, as stated in the Scope of Services, and to be
provided pursuant to this Agreement.
Proposal means CONSULTANT'S proposal to provide services for the Project.
Schedule of Values means the fees allocated to services, reimbursable and /or various
portions of the services or Work, prepared in such form, and supported by such data to
substantiate its accuracy as OWNER may require.
Scope of Services means the services described in Article 4, Scope of Services.
Services means professional services performed by CONSULTANT.
Total Compensation means the amount paid to CONSULTANT under Article 2,
Compensation for Basic Services, of this Agreement.
Work means the labor and materials required to complete a Project by
CONSTRUCTION CONTRACTOR in accordance with the Construction Contract
Documents.
ARTICLE 2: SCOPE OF SERVICES
2.1 CONSULTANT shall not commence work until being thoroughly briefed on the scope of
the Project and being notified in writing to proceed. The scope of the Project and
CONSULTANT'S Services required shall be reduced by CONSULTANT to a written
summary of the scope meeting. That Scope of Services and associated time schedule,
along with cost, once approved by CITY, will be included as a part of this Agreement as
Attachments 1 and 2 herein. Should the scope subsequently change, either
CONSULTANT or CITY may request a review of the anticipated services, with an
appropriate adjustment in compensation.
2.2 Communications by and with CONSULTANT'S subconsultants shall be through
CONSULTANT. Communications by and with subcontractors and material suppliers shall
be through CONSTRUCTION CONTRACTOR.
Project Agreement for Engineering Services rev 03122014 Page 3
2.3 CONSULTANT, in consideration for the Compensation herein provided, shall render the
professional Services described in this Section that are necessary for the development of
the Project, including plans and specifications, construction management services, any
special and general conditions, and instructions to bidders as acceptable to the Engineer,
or his or her duly authorized representative.
2.4 CONSULTANT shall complete a Project in accordance with the following phases and
CONSULTANT'S Scope of Services attached and incorporated herein as Attachments 1
and 2.
2.4.1 PROJECT DESIGN PHASES
2.4.2
Preliminary Engineering Report
2.4.3
30% Design
2.4.4
60% Design
2.4.5
90% Design
2.4.6
Bid Documents and Services
2.4.7
Construction Phase Services
2.4.8
Project Close Out and Final Payment
2.5 Upon acceptance and approval of the plans, reports or other deliverables required for a
Phase of work, as set forth in the Scope of Services, Engineer shall authorize
CONSULTANT, in writing, to proceed with the next phase of Work.
2.6 During Design Phases CONSULTANT shall:
2.6.1 Coordinate and meet with City staff and Project stakeholders as appropriate
throughout the Project. Assist staff at meetings with stakeholders, workshops,
and presentations to advisory commissions and City Council.
2.6.2 Provide the necessary field survey services to determine the existing field
conditions, including all utilities and surface features to the maximum extent
possible.
2.6.3 CONSULTANT shall make every effort to minimize utility adjustments, where
possible.
2.6.4 In the event electrical, communication, gas or other facilities are encountered,
CONSULTANT shall identify and incorporate those facilities at the completion of
each Project Phase in order to determine the magnitude of any potential
adjustment.
2.6.5 Perform the necessary testing to determine the existing site conditions and proper
design for construction and methods of any necessary demolition.
2.6.6 Follow and comply with the requirements for the Design Phases listed in this
Agreement, CITY'S Unified Development Code, if applicable, and CITY'S
Design Guidance Manual, both of which are incorporated by reference herein.
Project Agreement for Engineering Services rev 03122014 Page 4
2.6.7 In case of conflicts, follow and comply with the most stringent requirements for
the Design Phases.
2.6.8 Prepare documents for, and coordinate with other utilities and associated local,
state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits (determined during scoping for
each individual project).
2.6.9 Provide detailed plans and specifications for the Project at appropriate progress
intervals in requested formats (may include hard copy, .pdf, and .dwg).
2.6.10 Provide Opinion of Probably Construction Cost.
2.7 During Bid Phase CONSULTANT shall:
2.7.1 Provide unit price bid quantities in City bid form format for use in bid documents.
2.7.2 Provide bid sets of contract, technical specifications, plans, and any other
necessary documents in hard copy and digital format.
2.7.3 Attend pre -bid conference and prepare responses to questions and addenda as
necessary.
2.7.4 Research qualifications and references of apparent low bidder(s) and provide a
letter of recommendation for contract award.
2.8 During Construction Phase:
2.8.1 CONSULTANT shall monitor construction schedule.
2.8.2 CONSULTANT will make a minimum of two visits per month to the Project Site
at intervals appropriate to the Phases to (1) become generally familiar with and to
keep CITY informed about the progress and quality of the portion of the Work
completed, and (2) endeavor to guard CITY against defects in Work. However,
CONSULTANT will not be required to make exhaustive or continuous on -site
inspections to check the quality or quantity of the Work:
2.8.3 CONSULTANT will neither have control over or charge of, nor be responsible
for, the construction means, methods, techniques, sequences or procedures, or for
the safety precautions and programs in connection with the Work since these are
solely CONSTRUCTION CONTRACTOR'S rights and responsibilities under the
Contract Documents. CONSULTANT'S efforts will be directed toward providing
for CITY a greater degree of confidence that the completed Work will generally
conform to the Contract Documents.
over or charge of and will not be responsible for acts or omissions of
CONSTRUCTION CONTRACTOR, subcontractors, or their agents or
employees, or any other persons or entities performing portions of the Work.
2.8.5 CONSULTANT and CITY have authority to reject Work that does not conform to
the Contract Documents. Whenever CONSULTANT or CITY considers it
necessary or advisable, either CITY or CONSULTANT may require inspection or
testing of the Work whether or not such Work is fabricated, installed or
completed. However, neither this authority of CONSULTANT or CITY, nor a
decision made by either, in good faith, to require or not require an inspection shall
give rise to a duty or responsibility of CONSULTANT or CITY to
CONSTRUCTION CONTRACTOR, subcontractors, material and equipment
suppliers, agents or employees, or other persons or entities performing portions of
the Work.
2.8.6 CONSULTANT will review and approve or take other appropriate action upon
CONSTRUCTION CONTRACTOR'S submittals such as Shop Drawings,
Product Data and Samples, but only for the limited purpose of checking for
conformance with information given and the design concept expressed in the
Contract Documents. CONSULTANT will respond to submittals such as Shop
Drawings, Product Data, and Samples pursuant to the procedures set forth in the
Project specifications. Review of such submittals is not conducted for the purpose
of determining the accuracy and completeness of equipment or systems, all of
which remain the responsibility of CONSTRUCTION CONTRACTOR as
required by the Contract Documents. CONSULTANT'S review of
CONSTRUCTION CONTRACTOR'S submittals shall not relieve
CONSTRUCTION CONTRACTOR of its obligations. CONSULTANT'S review
shall not constitute approval of safety precautions or any construction means,
methods, techniques, sequences or procedures unless otherwise specifically stated
by CONSULTANT. CONSULTANT'S approval of a specific item shall not
indicate approval of an assembly of which the item is a component.
2.8.7 CONSULTANT will, within three work days after receipt of CONSTRUCTION
CONTRACTOR'S Application for Payment review the Application for Payment
and either issue to OWNER and /or the affected utility a Certificate for Payment
for such amount as CONSULTANT determines is properly due, or notify
OWNER, any affected utility, and CONSTRUCTION CONTRACTOR in writing
of CONSULTANT'S reasons for withholding recommendation of approval in
whole or in part.
2.8.8 CONSULTANT'S issuance of a Certificate for Payment will constitute a
representation by CONSULTANT to OWNER, based on CONSULTANT'S
evaluation of the Work and the data comprising the Application for Payment, that
the Work has progressed to the point indicated and that, to the best of
CONSULTANT'S knowledge, information and belief, the quality of the work is
in accordance with the design agreement documents or Construction Contract
Documents. The foregoing representations are subject to an evaluation of the
Project Agreement for Engineering Services rev 03122014 Page 6
Work for conformance with the design agreement documents, to results of
subsequent tests and inspections, to correction of minor deviations from the
design agreement documents prior to completion, and to any specific
qualifications expressed by CONSULTANT. The issuance of a Certificate for
Payment based on the CONSTRUCTION CONTRACTOR'S Application for
Payment will further constitute a representation that CONSTRUCTION
CONTRACTOR is entitled to payment in accordance with the Schedule of
Values. The issuance of Certificate for Payment will not be a representation that
CONSULTANT has (1) made exhaustive or continuous on -site inspections to
check the quality or quantity of the Work, (2) reviewed construction means,
methods, techniques, sequences or procedures, (3) reviewed copies of requisitions
received from Subcontractors and material suppliers and other data requested by
OWNER to substantiate Construction Contractor's right to payment, or (4) made
any examination to ascertain how or for what purpose CONSTRUCTION
CONTRACTOR has used money previously paid on account of the Application
for Payment sum.
2.8.9 CONSULTANT may recommend withholding an approval for Payment in whole
or in part, to the extent reasonably necessary to protect OWNER if, in
CONSULTANT'S opinion, the representations to OWNER required by Section
4.13 cannot be made. If CONSULTANT is unable to recommend approval of
payment in the amount of the Application, CONSULTANT will notify OWNER
and CONSTRUCTION CONTRACTOR as provided in Section 4.12. If OWNER
and CONSULTANT cannot agree on a revised amount, CONSULTANT will
promptly issue a Certificate for Payment for the amount for which
CONSULTANT is able to make such representations to OWNER.
CONSULTANT may also recommend withholding a Payment, because of
subsequently discovered evidence, may modify the whole or a part of a Certificate
for Payment to such extent as may be necessary, in CONSULTANT'S opinion, to
protect OWNER and the affected utility from loss for which CONSTRUCTION
CONTRACTOR is responsible, including loss resulting from acts and omissions
described below:
2.8.9.1 defective Work not remedied;
2.8.9.2 third party claims filed or reasonable evidence indicating probable
filing of such claims for which CONSTRUCTION CONTRACTOR is
responsible hereunder unless security acceptable to OWNER and the
affected utility is provided by CONSTRUCTION CONTRACTOR;
2.8.9.3 failure of CONSTRUCTION CONTRACTOR to make payments
properly to the subcontractors and /or material providers; .
2.8.9.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the agreement sum and CONSTRUCTION CONTRACTOR
has failed to provide OWNER and the affected utility adequate
Project Agreement for Engineering Services rev 03122014 Page 7
assurance of its continued performance within a reasonable time after
demand;
2.8.9.5 damage to OWNER or another contractor;
2.8.9.6 reasonable evidence that the Work will not be completed within the
agreement time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
2.8.9.7 persistent failure by CONSTRUCTION CONTRACTOR to carry out
the Work in accordance with the Construction Contract Documents.
2.8.10 When the above reasons for withholding payment are removed, payment will be
made for amounts previously withheld. OWNER shall not be deemed in default
by CONSULTANT by reason of withholding payment as provided herein.
2.8.11 CONSULTANT will prepare Change Orders and Field Work Directives, and,
with concurrence of OWNER, OWNER'S designated representative will have
authority to order minor changes in the Work not involving an adjustment in the
Total Compensation or an extension of the time for construction. Such changes
shall be effected by written order, which CONSTRUCTION CONTRACTOR
shall carry out promptly and record on the as -built plan.
2.8.12 Upon written request of CITY or CONSTRUCTION CONTRACTOR,
CONSULTANT will issue its interpretation of the requirements of the Plans and
Specifications. CONSULTANT'S response to such requests will be made in
writing within any agreed time limits or otherwise with reasonable promptness. If
no agreement is made concerning the time within which interpretations required
by CONSULTANT shall be furnished in compliance with Article IV, then delay
shall not be recognized on account of failure by CONSULTANT to furnish such
interpretations until 15 days after written request is made for CONSULTANT'S
interpretation.
2.8.13 Interpretations of CONSULTANT will be consistent with the intent of and
reasonably inferable from the Construction Contract Documents and will be in
writing or in the form of drawings.
2.8.14 CONSULTANT will advise and consult with CITY. CITY'S instructions to
CONSTRUCTION CONTRACTOR may be issued through CONSULTANT, but
CITY reserves the right to issue instructions directly to CONSTRUCTION
CONTRACTOR through inspectors or other designated CITY representatives.
2.8.15 CONSULTANT and CITY will conduct observations to determine the date of
substantial completion of the Work. CONSULTANT shall provide to CITY a
written recommendation of consideration of substantial completion of the Project.
2.8.16 CONSULTANT and CITY will conduct observations to determine the date of
final completion. CONSULTANT will receive and forward to CITY, for CITY'S
Project Agreement for Engineering Services rev 03122014 Page 8
review and records, written warranties and related documents required by the
Construction Contract Documents and assembled by CONSTRUCTION
CONTRACTOR, and will issue a final Approval for Payment upon compliance
with the requirements of the Construction Contract Documents. Such final
Approval will be accompanied by a signed and sealed statement from the
CONSULTANT'S Engineer of Record that certifies to CITY that the project was
constructed in accordance with the approved plans and specifications.
2.8.17 CONSULTANT shall prepare record drawings from information submitted by
CONSTRUCTION CONTRACTOR and fiom CONSULTANT'S own
observations in accordance with City standards. CONSULTANT shall provide
record drawings in hard copy, .pdf, and .dwg formats to CITY.
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3.1 Basic Services
3.1.1 Compensation for all Services included in this Agreement will be on a time and
expense not -to- exceed basis in accordance with the negotiated, approved schedule
of billing rates as set forth in Attachment 3. Not -to- exceed compensation
amounts, to the extent they have been negotiated shall be reflected in Attachment
3. A Proposal including a not -to- exceed cost will be provided by
CONSULTANT along with a Scope of Services for each Project (Attachments 1
and 2). The amount to be paid to CONSULTANT, including authorized
adjustments, is the total amount payable by OWNER to CONSULTANT for
performance of the Services for the Project under this Agreement. It is agreed
and understood that such amount will constitute full compensation to
CONSULTANT for Services included in the Scope of Services and shall meet all
requirements of CITY'S design guidelines applicable to the Project. Unless and
until CITY makes further appropriations for any Services not included in the
Scope of Services of this Agreement, the obligation of CITY to CONSULTANT
for Compensation in connection with this Agreement cannot and will not exceed
the sum described in this Section without further amendment to this Agreement.
3.1.2 No billing rate changes from those approved as Attachment 3 of this Agreement
shall be made during the term of this Agreement without the prior written
approval of CITY.
3.1.3 CONSULTANT shall submit monthly invoices to CITY describing the Services
performed the preceding month. CONSULTANT'S invoices shall include the
name of the person who performed the Service, a brief description of the Service
performed and the Phase of the Project to which the Service relates, the date(s)
the Service was performed, the number of hours spent on all Services billed on an
hourly basis, and a description of any subconsultant fees and /or reimbursable
expenditures.
Project Agreement for Engineering Services rev 03122014 Page 9
3.1.4 CITY shall reimburse CONSULTANT only for those costs or expenses
specifically approved in this Agreement, or specifically approved in advance by
CITY. Unless otherwise approved, such costs shall be limited and include
nothing more than the following costs incurred by CONSULTANT:
3.1.4.1 Approved reproduction charges,
3.1.4.2 Actual costs of subconsultant(s) for performance of any of the Services
that CONSULTANT agrees to provide pursuant to this Agreement,
which have been approved in advance by CITY and awarded in
accordance with this Agreement.
3.1.4.3 Actual costs and /or other costs and /or payments specifically authorized
in advance by the CITY in writing and incurred by CONSULTANT in
the performance of this Agreement.
3.1.5 CONSULTANT shall complete the Project in accordance with the following
phases. For the purpose of establishing portions of compensation for separate
phases, more particularly described in the Scope of Services, Attachment 2 shall
apply.
Preliminary Engineering Report
30% Design
60% Design
90% Design
Bid Documents and Services
Construction Phase Services
Project Close Out and Final Payment
3.1.6 CONSULTANT shall, within 10 days following receipt of Compensation from
OWNER, pay all bills for Services performed and furnished hereunder by
subconsultant(s) of CONSULTANT in connection with the Project and the
performance of services and shall, if requested, provide OWNER with evidence
of such payment. CONSULTANT'S failure to make payments within such time
shall constitute a material breach of this Agreement unless CONSULTANT is
able to demonstrate to OWNER bona fide disputes associated with the Services of
the unpaid subconsultant and its services. CONSULTANT shall include a
provision in each of its sub agreements imposing the same payment obligations on
its subconsultants as are applicable to CONSULTANT hereunder, and if OWNER
so requests, shall provide evidence of such payments by CONSULTANT to
OWNER. If CONSULTANT has failed to make payment promptly to the
subconsultant for undisputed Services for which OWNER has made payment to
CONSULTANT, OWNER shall be entitled to withhold future payment to
CONSULTANT to the extent remaining unpaid by CONSULTANT necessary to
protect OWNER.
Project Agreement for Engineering Services rev 03122014 Page 10
3.1.7 CONSULTANT warrants that title to all deliverables produced in the
performance of Services covered by an Application for Compensation will pass to
OWNER no later than the time of payment. CONSULTANT further warrants that
upon submittal of an Application for Compensation, all Services for which
Applications for Compensation have been previously issued and payments
received from OWNER shall, to the best of CONSULTANT'S knowledge,
information and belief be free and clear of liens, claims, security interests or
encumbrance in favor of CONSULTANT, or other persons or entities under
contract with CONSULTANT making a claim by reason of having provided labor
or services relating to CONSULTANT'S Services. CONSULTANT SHALL
INDEMNIFY AND HOLD OWNER HARMLESS FROM ANY LIENS,
CLAIMS, SECURITY INTEREST OR ENCUMBRANCES FILED BY
ANYONE CLAIMING BY, THROUGH OR UNDER THE ITEMS COVERED
BY PAYMENTS MADE BY OWNER TO CONSULTANT.
3.2 Additional Services
3.2.1 CONSULTANT shall not receive any compensation for additional Services
without prior written authorization of CITY. Compensation for duly authorized
additional Services shall be paid in accordance with the approved schedule of
billing rates as set forth in Attachment 3.
3.2.2 Examples of additional Services (not all inclusive)
3.2.2.1 Assistance to CITY as an expert witness in any litigation with third
parties arising from the development of construction of a Project
including the preparation of engineering data and reports.
3.2.2.2 Preparation of plats and field notes for acquisition of property.
3.2.2.3 Preparation of applications and supporting documents for governmental
grants, loans, or advances in connection with a Project; preparation of
review of environmental assessment and impact statements; review and
evaluation of the effect on the design requirements of a Project of any
such statements and documents prepared by others; and assistance in
obtaining approval of authorities having jurisdiction over the
anticipated environmental impact of a Project.
3.2.2.4 Making revisions in drawings, specifications, or other documents when
such revisions are inconsistent with written approvals or instructions
previously given, are required by the enactment or revision of codes,
laws, or regulations subsequent to the preparation of such documents or
are due to other causes not solely within the control of
CONSULTANT.
3.2.2.5 Malting revisions to drawings or specifications occasioned by
acceptance of substitutions proposed by CONSTRUCTION
CONTRACTOR; and Services after the award of each contract in
Project Agreement for Engineering Services rev 03122014 Page 11
evaluating and determining the acceptability of an unreasonable or
excessive number of substitutions proposed by CONSTRUCTION
CONTRACTOR.
3.2.2.6 Preparing drawings, specifications, and supporting data and providing
other Services in connection with change order requests to the extent
that the adjustment in the basic compensation resulting from the
adjusted construction cost is not commensurate with the Services
required of CONSULTANT, provided such change order requests are
required by causes not solely within the control of CONSULTANT; or
in connection with change orders requiring significant engineering
effort to compute and document the Work effort reflected by the
Change Order.
3.2.2.7 Investigations, surveys, valuations, inventories, or detailed appraisals of
facilities, construction and/or services not required by Project scope.
3.2.2.8 Investigations, surveys, audit, or inventories required in connection
with construction performed by CITY.
3.2.2.9 Additional Services during construction made necessary by:
3.2.2.9.1 Work damaged by fire or other cause during construction.
3.2.2.9.2 A significant amount of defective or neglected work of
CONSTRUCTION CONTRACTOR.
3.2.2.9.3 Failure of performance of CONSTRUCTION
CONTRACTOR.
3.2.2.9.4 Acceleration of the progress schedule required by CITY
involving Services beyond normal working hours.
3.2.2.9.5 Default by CONSTRUCTION CONTRACTOR.
3.2.2.10 Providing extensive assistance in the use of any equipment or system
such as initial start -up or testing, adjusting and balancing, preparation
of operation and maintenance manuals, training personnel for operation
and maintenance, and consultation during operation.
3.2.2.11 Providing Services relative to future facilities, systems, and equipment
which are not intended to be constructed during the Construction Phase.
3.2.2.12 Services after completion of the Construction Phase, such as
inspections during any guarantee period and reporting observed
deficiencies under guarantee called for in any contract for a Project.
Project Agreement for Engineering Services rev 03122014 Page 12
3.2.2.13 Providing Services of geotechnical engineering firm to perform test
borings and other soil or foundation investigations and related analysis
not included in original Scope of Services for a Project.
3.2.2.14 Additional copies of Construction Contract Documents, review
documents, bidding documents, reports, and or drawings over the
number specified in the original Scope of Services for a Project.
3.2.2.15 Preparation of all documents dealing with 404 permits and railroad
agreements.
3.2.2.16 Providing photographs, renderings, or models for CITY use.
3.2.2.17 Providing aerial mapping Services.
3.2.2.18 Providing consulting engineering Services not related to a particular
design or construction Project.
3.3 All Applications for Compensation shall be submitted through Engineer's office.
ARTICLE 4: METHOD OF PAYMENT
4.1 Compensation may be made to CONSULTANT as appropriately indicated on monthly
Applications for Compensation prepared based on hourly rates, not to exceed amounts
estimated for each phase, as described in Article 2 and Attachments 1 and 2 hereof.
4.2 Project Close Out and Final Payment —
4.2.1 CONSULTANT shall not be entitled to final payment unless and until it submits
to OWNER its affidavit that the invoices for services, and other liabilities
connected with the services for which OWNER, or OWNER'S property, might be
responsible have been fully paid or otherwise satisfied or will be paid from final
payment; releases and waivers of liens from all CONSULTANT'S subconsultants
and of any and all other parties required by OWNER that are either unconditional
or conditional on receipt of final payment; certificates of insurance showing
continuation of required insurance coverage; such other documents as OWNER
may request; and consent of surety to final payment.
4.2.2 Final Compensation — The final compensation to be made by CITY to
CONSULTANT will be payable upon submission of the "Record Drawings ".
CONSULTANT agrees to submit "Record Drawings: in print media, electronic
format (.pdf and .dwg formats) and final billing within 45 days of final acceptance
of construction. Additionally, CONSULTANT agrees to submit a statement of
release with the final billing notifying CITY that there is no further compensation
owed to CONSULTANT by CITY beyond the final bill. Final billing shall
indicate "Final Bill — no additional compensation is due to CONSULTANT ".
Project Agreement for Engineering Services rev 03122014 Page 13
4.3 OWNER may withhold compensation to such extent as may be necessary, in OWNER'S
opinion, to protect OWNER from damage or loss for which CONSULTANT is
responsible, because of,
4.3.1 delays in the performance of CONSULTANT'S services;
4.3.2 third party claims filed or reasonable evidence indicating probable filing of such
claims unless security acceptable to OWNER is provided by CONSULTANT;
4.3.3 failure of CONSULTANT to make payments properly to subconsultants or
vendors for labor, materials or equipment;
4.3.4 reasonable evidence that CONSULTANT'S work cannot be completed for the
amount unpaid under this Agreement;
4.3.5 damage to OWNER or CONSTRUCTION CONTRACTOR; or
4.3.6 persistent failure by CONSULTANT to carry out the performance of its Services
in accordance with this Agreement.
4.4 When the above reasons for withholding are removed or remedied by CONSULTANT,
compensation of the amount withheld will be made within a reasonable time. OWNER
shall not be deemed in default by reason of withholding compensation as provided for in
this Article.
4.5 In the event of any dispute(s) between the parties regarding the amount properly payable
for any Phase or as final Compensation, or regarding any amount that may be withheld by
OWNER, CONSULTANT shall be required to make a claim pursuant to and in
accordance with the terms of this Agreement and follow the procedures provided herein
for the resolution of such dispute. In the event CONSULTANT does not initiate and
follow the claims procedures provided in this Agreement in a timely manner and as
required by the terms thereof, any such claim shall be waived.
4.6 OWNER shall make final compensation for all sums due CONSULTANT not more than
30 days after CONSULTANT'S final Application for Compensation.
4.7 Acceptance of final compensation by CONSULTANT shall constitute a waiver of claims
except those previously made in writing and identified by CONSULTANT as unsettled at
the time of final Application for Compensation.
4.8 CONSULTANT agrees to maintain adequate books, payrolls and records satisfactory to
OWNER and all applicable utility providers in connection with any and all Services
performed hereunder. CONSULTANT agrees to retain all such books, payrolls and
records (including data stored in computer) for a period of not less than four years after
completion of Work. At all reasonable times, OWNER and all applicable utility providers
and their duly authorized representatives shall have access to all personnel of
CONSULTANT and all such books, payrolls and records, and shall have the right to audit
same.
Project Agreement for Engineering Services rev 03122014 Page 14
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5.1 Prior to commencement, CONSULTANT shall provide CITY with a schedule of Project
Design Phases, Attachment 2.
5.2 Time is of the essence of this Agreement. CONSULTANT shall perform and complete its
obligations for the various Phases of a Project under Section 4, Scope of Services, of this
Agreement in a prompt and continuous manner so as to not delay the development of the
design Services and so as to not delay the construction of the work for the Project in
accordance with the schedules approved by CITY with CONSTRUCTION
CONTRACTOR. Upon review of phase Services, if corrections, modifications,
alterations, or additions are required of CONSULTANT, these items shall be completed
by CONSULTANT before that Phase is approved.
5.3 CONSULTANT shall not proceed with the next appropriate Phase of Services without
written authorization fiom the Engineer. CITY may elect to discontinue
CONSULTANT'S Services at the end of any Phase for any reason. Notwithstanding any
other provisions of this Agreement, if circumstance dictates, the Engineer may make
adjustments to the scope of CONSULTANT'S obligations at any time to achieve the
required design.
5.4 CONSULTANT shall not be liable or responsible for any delays due to strikes, riots, acts
of God, national emergency, acts of the public enemy, governmental restrictions, laws or
regulations, or any other causes beyond CONSULTANT'S reasonable control. Within 21
days from the occurrence of any event for which time for performance by
CONSULTANT will be significantly extended under this provision, CONSULTANT
shall give written notice thereof to CITY stating the reason for such extension and the
actual or estimated time thereof. If CITY determines that CONSULTANT is responsible
for the need for extended time, CITY shall have the right to make a Claim as provided in
this Agreement.
5.5 Term of Agreement shall be as follows:
5.5.1 This Agreement shall become effective upon and shall remain in
effect until satisfactory completion of the Project unless terminated as provided
for in this Agreement.
ARTICLE 6: COORDINATION WITH CITY
6.1 CONSULTANT shall hold periodic conferences with the Engineer or his or her
representatives to the end that the Project as developed shall have the full benefit of
CITY'S experience and knowledge of existing needs and facilities, and be consistent with.
its current policies and standards. To assist CONSULTANT in this coordination, CITY
shall make available for CONSULTANT'S use in planning and designing the Project all
existing plans, maps, statistics, computations and other data in its possession relative to
existing facilities and to this particular Project, at no cost to CONSULTANT. However,
any and all such information shall remain the property of CITY and shall be returned by
Project Agreement for Engineering Services rev 03122014 Page 1S
CONSULTANT upon termination or completion of the Project or if instructed to do so by
the Engineer.
6.2 The Engineer will act on behalf of CITY with respect to the Services to be performed
under this Agreement. The Engineer shall have complete authority to transmit
instructions, receive information, interpret and define CITY'S policies and decisions with
respect to materials, equipment, elements and systems pertinent to CONSULTANT'S
services.
6.3 CITY will give prompt written notice to CONSULTANT whenever CITY observes or
otherwise become aware of any defect in CONSULTANT'S Services, in the work of
CONSTRUCTION CONTRACTOR, or any development that affects the scope or timing
of CONSULTANT'S Services.
6.4 All appraisals, notices, and permits shall be furnished by CONSULTANT under the Scope
of Services unless otherwise assigned to CITY in the Scope of Services, Approvals and
permits assigned to CITY shall be obtained from all governmental authorities having
jurisdiction over the Project and such approvals and consents from others as may be
necessary for the completion of the Project. CONSULTANT will provide CITY
reasonable assistance in connection with such approvals and permits such as the
furnishing of data compiled by CONSULTANT pursuant to other provisions of this
Agreement, but CONSULTANT shall not be obligated to develop additional data, prepare
extensive reports or appear at hearings or the like unless compensated therefore under
other provisions of this Agreement.
ARTICLE 7: REVISIONS TO DRAWINGS AND SPECIFICATIONS
7.1 CONSULTANT shall make without expense to CITY such revisions to the drawings,
reports or other documents as may be required to meet the needs of CITY which are
within the Scope of Services, but after the approval of drawings, reports or other
documents and specifications by CITY, any revisions, additions, or other modifications
made at CITY'S request which involve extra services and expenses to CONSULTANT
shall be at additional compensation to CONSULTANT for such additional Services and
expenses in accordance with Article 3 herein.
Project Agreement for Engineering Services rev 03122014 Page 16
8.1 All previously owned documents, including the original drawings, estimates,
specifications, and all other documents and data by CONSULTANT, will remain the
property of CONSULTANT as instruments of service. However, CONSULTANT
understands and agrees that CITY shall have free access to all such information with the
right to make and retain copies of previously owned drawings, estimates, specifications
and all other documents and data. Any reuse without specific written verification or
adaptation by CONSULTANT will be at CITY'S sole risk and without liability or legal
exposure to CONSULTANT.
8.2 All completed documents submitted by CONSULTANT for final approval or issuance of
a permit shall bear the seal with signature and date adjacent thereto of a registered
professional engineer licensed to practice in the State of Texas.
8.3 CONSULTANT acknowledges and agrees that upon payment, CITY shall own
exclusively any and all information in whatsoever form and character produced and/or
maintained in accordance with, pursuant to, or as a result of this Agreement and shall be
used as CITY desires and documents, including the original drawings, estimates,
specifications and all other documents and data shall be delivered to CITY at no
additional cost to CITY upon request or termination or completion of this Agreement
without restriction on future use. However, any reuse without specific written verification
or adaptation by CONSULTANT will be at CITY'S sole risk and without liability to
CONSULTANT.
8.4 CONSULTANT agrees and covenants to protect any and all proprietary rights of CITY in
any materials provided to CONSULTANT. Such protection of proprietary rights by
CONSULTANT shall include, but not be limited to, the inclusion in any copy intended for
publication of copyright mark reserving all rights to CITY. Additionally, any materials
provided to CONSULTANT by CITY shall not be released to any third party without the
written consent of CITY and shall be returned intact to CITY upon termination or
completion of this Agreement or if instructed to do so by the Engineer.
8.5 CONSULTANT HEREBY ASSIGNS ALL STATUTORY AND COMMON LAW
COPYRIGHTS TO ANY COPYRIGHTABLE WORK THAT IN PART OR IN
WHOLE WAS PRODUCED FROM THIS AGREEMENT TO CITY, INCLUDING
ALL EQUITABLE RIGHTS. NO REPORTS, MAPS, DOCUMENTS OR OTHER
COPYRIGHTABLE WORKS PRODUCED IN WHOLE OR IN PART BY THIS
AGREEMENT SHALL BE SUBJECT OF AN APPLICATION FOR COPYRIGHT
BY CONSULTANT. ALL REPORTS, MAPS, PROJECT LOGOS, DRAWINGS OR
OTHER COPYRIGHTABLE WORK PRODUCED UNDER THIS AGREEMENT
SHALL BECOME THE PROPERTY OF CITY (EXCLUDING ANY PRIOR
OWNED INSTRUMENT OF SERVICES, UNLESS OTHERWISE SPECIFIED
HEREIN). CONSULTANT SHALL, AT ITS EXPENSE, INDEMNIFY CITY AND
DEFEND ALL SUITS OR PROCEEDINGS INSTITUTED AGAINST CITY AND
PAY ANY AWARD OF DAMAGES OR LOSS RESULTING FROM AN
INJUNCTION, AGAINST CITY, INSOFAR AS THE SAME ARE BASED ON ANY
Project Agreement for Engineering Services rev 03122014 Page 17
CLAIM THAT MATERIALS OR WORK PROVIDED UNDER TH -
AGREEMENT CONSTITUTE AN INFRINGEMENT OF ANY PATENT, TRAM
SECRET, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUA
PROPERTY
8.6 CONSULTANT may make copies of any and all documents and items for its files.
CONSULTANT shall have no liability for changes made to or use of the drawings,
specifications and other documents by other engineers, or other persons, subsequent to the
completion of the Project. CONSULTANT shall appropriately marls all changes or
modifications on all drawings, specifications and other documents by other engineers or
other persons, including electronic copies, subsequent to the completion of the Project.
8.7 Copies of documents that may be relied upon by CITY are limited to the printed copies
(also known as hard copies) and .pdf- format electronic versions that are sealed and signed
by CONSULTANT. Files in editable electronic media format of text, data, graphics, or
other types (such as .dwg) that are furnished by CONSULTANT to CITY are only for
convenience of CITY or any utility. Any conclusion or information obtained or derived
from such electronic files will be at the user's sole risk. Any reuse without specific written
verification or adaptation by CONSULTANT will be at CITY'S sole risk and without
liability to CONSULTANT.
8.8 Notwithstanding anything to the contrary contained herein, all previously owned
intellectual property of CONSULTANT, unless expressly purchased by CITY, including
but not limited to any computer software (object code and source code), tools, systems,
equipment or other information used by CONSULTANT or its suppliers in the course of
delivering the Services hereunder, and any know -how, methodologies, or processes used
by CONSULTANT to provide the services or protect deliverables to CITY, including
without limitation, all copyrights, trademarks, patents, trade secrets, and any other
proprietary rights inherent therein and appurtenant thereto shall remain the sole and
exclusive property of CONSULTANT or its suppliers.
ARTICLE 9: TERMINATION AND /OR SUSPENSION OF WORD
9.1 Right of Either Party to Terminate for Default
9.1.1 This Agreement may be terminated by either party for substantial failure by the
other party to perform (through no fault of the terminating party) in accordance
with the terms of this Agreement and a failure to cure as provided in this Article
9.
9.1.2 The party not in default must issue a signed, written notice of termination (citing
this paragraph) to the other party declaring the other party to be in default and
stating the reason(s) why they are in default. Upon receipt of such written notice
of default, the party in receipt shall have a period of ten days to cure any failure to
perform under this Agreement. Upon the completion of such 10 -day period
commencing upon receipt of notice of termination, if such party has not cured any
Project Agreement for Engineering Services rev 03122014 Page 18
failure to perform, such termination shall become effective without further written
notice.
9.2 Right of CITY to Terminate
9.2.1 CITY reserves the right to terminate this Agreement for reasons other than
substantial failure by CONSULTANT to perform by issuing a signed, written
notice of termination (citing this paragraph) which shall take effect on the
twentieth day following receipt of said notice or upon the scheduled completion
date of the performance Phase in which CONSULTANT is then currently
working, whichever effective termination date occurs first.
9.3 Right of CITY to Suspend Giving Rise to Right of CONSULTANT to Terminate
9.3.1 CITY reserves the right to suspend this Agreement at the end of any Phase for the
convenience of CITY by issuing a signed, written notice of suspension (citing this
paragraph) which shall outline the reasons for the suspension and the expected
duration of the suspension, but such expected duration shall in no way guarantee
what the total number of days of suspension will occur. Such suspension shall
take effect immediately upon receipt of said notice of suspension by
CONSULTANT.
9.3.1.1 CONSULTANT is hereby given the right to terminate this Agreement
in the event such suspension extends for a period in excess of 120 days.
CONSULTANT may exercise this right to terminate by issuing a
signed, written notice of termination (citing this paragraph) to CITY
after the expiration of 120 days from the effective date of the
suspension. Termination (under this paragraph) shall become effective
immediately upon receipt of said written notice by CITY.
9.4 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Termination
9.4.1 Upon receipt of a notice of termination and prior to the effective date of
termination, unless the notice otherwise directs or CONSULTANT immediately
takes action to cure a failure to perform under the cure period set out in this
Article. CONSULTANT shall immediately begin the phase -out and the
discontinuance of all services in connection with the performance of this
Agreement and shall proceed to promptly cancel all existing orders and contracts
insofar as such orders and contracts are chargeable to this Agreement. Within 30
days after receipt of such notice of termination (unless CONSULTANT has
successfully cured a failure to perform) CONSULTANT shall submit a statement
showing in detail the Services performed under this Agreement prior to the
effective date of termination. CITY shall have the option to grant an extension to
the time period for submittal of such statement.
9.4.2 Copies of all completed or partially completed specifications and all
reproductions of all completed or partially completed designs, plans and
attachments prepared under this Agreement prior to the effective date of
Project Agreement for Engineering Services rev 03122014 Page 19
termination shall be delivered to CITY, in the form requested by CITY as a
precondition to final payment. These documents shall be subject to the restrictions
and conditions set forth in Article IX above.
9.4.3 Upon the above conditions being met, CITY shall promptly pay CONSULTANT
that proportion of the prescribed Compensation which the Services actually
performed under this Agreement bear to the total Services called for under this
Agreement, less previous payments of the Compensation.
9.4.4 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of CONSULTANT to comply with the
submittal of the statement and documents as required above shall constitute a
waiver by CONSULTANT of any and all rights or claims for compensation for
services performed under this Agreement by CONSULTANT.
9.4.5 Failure of CONSULTANT to comply with the submittal of the statement and
documents as required above shall constitute a waiver by CONSULTANT of any
and all rights or claims to collect monies that CONSULTANT may otherwise be
entitled to for services performed under this Agreement.
9.5 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Suspension
9.5.1 Upon receipt of written notice of suspension, which date shall also be the
effective date of the suspension, CONSULTANT shall, unless the notice
otherwise directs, immediately begin to phase -out and discontinue all services in
connection with the performance of this Agreement and shall proceed to promptly
suspend all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement.
9.5.2 CONSULTANT shall prepare a statement showing in detail the Services
performed under this Agreement prior to the effective date of suspension.
9.5.3 Copies of all completed or partially completed designs, plans, and specifications
prepared under this Agreement prior to the effective date of suspension shall be
prepared for possible delivery to CITY but shall be retained by CONSULTANT
until such time as CONSULTANT may exercise the right to terminate.
9.5.4 In the event that CONSULTANT exercises the right to terminate 120 days after
the effective suspension date, within 30 days after receipt by CITY of
CONSULTANT'S notice of termination, CONSULTANT shall promptly cancel
all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement and shall submit the above referenced statement
showing in detail the services performed under this Agreement prior to the
effective date of suspension.
9.5.5 Any documents prepared in association with this Agreement shall be delivered to
CITY as a precondition to final payment.
Project Agreement for Engineering Services rev 03122014 Page 20
9.5.6 Upon the above conditions being met, CITY shall pay CONSULTANT that
proportion of the prescribed Compensation which the Services actually performed
under this Agreement bear to the total Services called for under this Agreement,
less previous payments of Compensation.
9.5.7 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of Consultant to substantially comply
with the submittal of the statements and documents as required herein shall
constitute a waiver by CONSULTANT of any portion of the Compensation for
which CONSULTANT did not supply such necessary statements and /or
documents.
10.1 CONSULTANT warrants that it has not employed or retained any company or person
other than a bona fide employee working solely for CONSULTANT to solicit or secure
this Agreement, and that it has not, for the purpose of soliciting or securing this
Agreement, paid or agreed to pay any company or person, commission, percentage,
brokerage fee, gift, or any other consideration, contingent upon or resulting from the
award or making of this Agreement. For breach of this warranty, CITY shall have the
right to terminate this Agreement under the provisions of Article 9 above.
ARTICLE 11: ASSSIGNMENT OR TRANSFER OF INTEREST
11.1 CONSULTANT shall not assign or transfer its interest in this Agreement without the prior
written consent of CITY.
ARTICLE 12: INSURANCE REQUIREMENTS
12.1 Prior to the commencement of any Services under this Agreement, CONSULTANT shall
furnish copies of all required endorsements and an original completed Certificate(s) of
Insurance to CITY'S Engineering Department, which shall be clearly identified with the
name of the Project in the Description of Operations block of the Certificate. The original
Certificate(s) shall be completed by an agent and signed by a person authorized by that
insurer to bind coverage on its behalf. CITY will not accept Memorandum of Insurance or
Binders as proof of insurance. The original certificate(s) or form must have the agent's
original signature, including the signer's company affiliation, title and phone number, and
be mailed, with copies of all applicable endorsements, directly from the insurer's
authorized representative to CITY. CITY shall have no duty to pay or perform under this
Agreement until such certificate and endorsements have been received and approved by
CITY'S Engineering Department. No officer or employee other than CITY'S Risk
Manager shall have authority to waive this requirement.
Project Agreement for Engineering Services rev 03122014 Page 21
circumstances surrounding this contract,' In no instance will CITY allow modification
whereupon CITY may incur increased risk.
12.3 CONSULTANT'S financial integrity is of interest to CITY. Therefore, subject to
CONSULTANT'S right to maintain reasQnable deductibles in such amounts as are
approved by CITY, CONSULTANT shall, obi in and maintain in full force and effect for
the duration of this Agreement, and any\,e� tension hereof, at CONSULTANT'S sole
expense, insurance coverage written op , - occurrence or claims made basis, as
appropriate, by companies authorized andJ. p toyed to do business in the State of Texas
and with an A.M. Best's rating of no less th4l A- (VII), in the following types and for an
amount not less than the amount listed:
INSURANCE REQUIREMENTS
Worker's Compensation*
Employer's Liability
Commercial General (Public) Liability
insurance to include coverage for the
following:
a. Premises Operations
b. Independent Contractors **
c. Products /Completed Operations
d. Personal Injury
e. Contractual Liability
Business Automobile Liability
a. Owned /Leased Vehicles
b. Non -owned Vehicles
statutory
$ j.,W.0, 000, 000 /$1,000,000,000 /$1,000,000,000
Eor-, bodily Injury and Property Damage of
$li;'00:4;000 per occurrence.
'$25000,000 General Aggregate, or its equivalent
in Utribrella or Excess Liability Coverage
Combined Single Limit for Bodily Injury and
property Damage of $1,000,000 per occurrence
c. Hired Vehicles F�
Professional Liability (Claims Made Form) :? -$1,tb0,000 per claim to pay on behalf of the
insured' all sums, which the insured shall
become legally obligated to pay as damages to
the extent caused by any negligent act, error, or
- omission in the performance of professional
Qes.
*Alternate Plans must be approved by CITY'S RisIc Manager
**If applicable
Project Agreement for Engineering Services,rev 0122014 Page 22
policies). CONSULTANT shall attempt to comply with any such requests, subject to the
policy terms and conditions, and shall submit a copy of the replacement certificate of
insurance to CITY at the address provided below within 10 days of the requested change,
in the event the respective insurance companies approve the requested change(s).
CONSULTANT shall pay any costs incurred resulting from said changes.
City of Schertz
Attn: City Engineer
10 Commercial Place
Schertz, TX 78154
12.5 CONSULTANT agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
12.5.1 Name CITY and its officers, officials, employees, and elected representatives as
additional insured's by endorsement, as respects operations and activities of, or on
behalf of, the named insured performed under contract with CITY, with the
exception of the workers' compensation and professional liability policies;
12.5.2 Provide for an endorsement that the "other insurance" clause shall not apply to the
CITY where CITY is an additional insured shown on the policy if such
endorsement is permitted by law and regulations;
12.5.3 Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of CITY; and
12.5.4 Provide 30 calendar days advance written notice directly to CITY of any
suspension, cancellation or non - renewal or material change in coverage, and not
less than 10 calendar days advance written notice for nonpayment of premium.
12.6 Within five calendar days after a. suspension, cancellation or non - renewal of coverage,
CONSULTANT shall provide a replacement Certificate of Insurance and applicable
endorsements to CITY. CITY shall have the option to suspend CONSULTANT'S
performance should there be a lapse in coverage at any time during this Agreement.
Failure to provide and to maintain the required insurance shall constitute a material breach
of this Agreement.
12.7 If CONSULTANT fails to maintain the aforementioned insurance, or fails to secure and
maintain the aforementioned endorsements, CITY may obtain such insurance, and deduct
and retain the amount of the premiums for such insurance from any sums due under the
agreement; however, procuring of said insurance by CITY is an alternative to other
remedies CITY may have and is not the exclusive remedy for failure of CONSULTANT
to maintain said insurance or secure such endorsement. In addition to any other remedies
CITY may have upon CONSULTANT'S failure to provide and maintain any insurance or
policy endorsements to the extent and within the time herein required, CITY shall have
the right to order CONSULTANT to stop performing services hereunder and /or withhold
any payment(s) which become due to CONSULTANT hereunder until CONSULTANT
demonstrates compliance with the requirements hereof.
Project Agreement for Engineering Services rev 03122014 Page 23
12.8 Nothing herein contained shall be construed as limiting in any way the extent to which
CONSULTANT may be held responsible for payments of damages to persons or property
resulting from CONSULTANT'S or its subconsultant's performance of the Services
covered under this Agreement.
12.9 It is agreed that CONSULTANT'S insurance shall be deemed primary with respect to any
insurance or self insurance carried by CITY for liability arising out of operations under
this Agreement.
12.10 It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this Agreement as respects additional insured's.
/��IIIC���f ► 1 �� ► i N�'1�CI
13.1 CONSULTANT, WHOSE WORK PRODUCT AND SERVICES ARE THE
SUBJECT OF THIS AGREEMENT FOR PROFESSIONAL SERVICES, AGREES
TO INDEMNIFY AND HOLD CITY, ITS ELECTED OFFICIALS, OFFICERS,
AGENTS AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS
BY THIRD PARTIES, LAWSUITS, JUDGMENTS, COST, LIENS, LOSSES,
EXPENSES, FEES (INCLUDING REASONABLE ATTORNEY'S FEES AND
COSTS OF DEFENSE), PROCEEDINGS, ACTIONS, DEMANDS, CAUSES OF
ACTION, LIABILITY AND SUITS OF ANY KIND AND NATURE, INCLUDING
BUT NOT LIMITED TO, PERSONAL INJURY (INCLUDING DEATH),
PROPERTY DAMAGE, OR OTHER HARM FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT THAT MAY ARISE OUT OF OR BE OCCASIONED OR
CAUSED BY A NEGLIGENT ACT, ERROR, OR OMISSION OF CONSULTANT,
ANY AGENT, OFFICER, ENGINEER, REPRESENTATIVE, EMPLOYEE,
CONSULTANT OR SUBCONSULTANT OF CONSULTANT, AND THEIR
RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, ENGINEERS AND
REPRESENTATIVES WHILE IN THE EXERCISE OF PERFORMANCE OF
THE SERVICES, RIGHTS OR DUTIES UNDER THIS AGREEMENT. THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO
ANY LIABILITY RESULTING FROM THE NEGLIGENCE OF CITY, ITS
OFFICERS OR EMPLOYEES, IN INSTANCES WHERE SUCH NEGLIGENCE
CAUSES PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE. IN THE
EVENT CONSULTANT AND CITY ARE FOUND JOINTLY LIABLE BY A
COURT OF COMPETENT JURISDICTION, LIABILITY SHALL BE
APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO CITY UNDER TEXAS LAW
AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS
LAW.
13.2 CONSULTANT shall advise CITY in writing within 24 hours of any claim or demand
against CITY or CONSULTANT, known to CONSULTANT, related to or arising out of
CONSULTANT'S activities under this Agreement.
Project Agreement for Engineering Services rev 03122014 Page 24
13.3 The provisions of Article 13 are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or
entity.
13.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
14.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of
right, adjustment or interpretation of this Agreement's terms, payment of money, and
extension of time or other relief with respect to the terms of this Agreement. The term
"Claim" also includes other disputes and matters in question between OWNER and
CONSULTANT arising out of or relating to this Agreement. Claims must be initiated by
written notice. Every Claim of CONSULTANT, whether for additional Compensation,
additional time, or other relief, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind
CONSULTANT by signature) of CONSULTANT, verifying the truth and accuracy of the
Claim. The responsibility to substantiate Claims shall rest with the party making the
Claim.
14.2 Time Limit on Claims. Claims by CONSULTANT or by OWNER must be initiated
within 30 calendar days after occurrence of the event giving rise to such Claim. Claims by
CONSULTANT must be initiated by written notice to OWNER. Claims by the OWNER
must be initiated by written notice to CONSULTANT.
14.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise
agreed in writing, CONSULTANT shall proceed diligently with performance of this
Agreement and OWNER shall continue to make payments in accordance with this
Agreement.
14.4 Claims for Additional Time. If CONSULTANT wishes to make Claim for an increase in
the time for performance, written notice as provided in this Article 14 shall be given.
CONSULTANT'S Claim shall include an estimate of probable effect of delay on progress
of the Work. In the case of a continuing delay only one Claim is necessary.
14.5 Claims for Consequential Damages. Except as otherwise provided in this Agreement, in
calculating the amount of any Claim or any measure of damages for breach of contract
(such provision to survive any termination following such breach), the following
standards will apply both to claims by CONSULTANT and to claims by OWNER:
14.5.1 No consequential damages will be allowed.
Project Agreement for Engineering Services rev 03122014 Page 25
14.5.2 Damages are limited to extra costs specifically shown to have been directly
caused by a proven wrong for which the other party is claimed to be responsible.
14.5.3 No profit will be allowed on any damage claim.
14.6 No Waiver of • - rnmental Immunity. NOTHING IN THIS AGREEMENT
BE CONSTRUED TO WAIVE OWNER'S GOVERNMENTAL IMMUNIT
FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO
EXTENT IT IS O CLEARLY AND UNAMBIGUOUSLY t D BY 4,
LAW.
15.1 If for any reason, any one or more paragraphs of this Agreement are held invalid or
unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the
remaining paragraphs of this Agreement but shall be confined.in its effect to the specific
section, sentences, clauses or parts of this Agreement held invalid or unenforceable, and
the invalidity or unenforceability of any section, sentence, clause or parts of this
Agreement in any one or more instance shall not affect or prejudice in any way the
validity of this Agreement in any other instance.
ARTICLE 16: ESTIMATES OF COST
16.1 Since CONSULTANT has no control over the cost of labor, materials, or equipment or
over CONSTRUCTION CONTRACTOR'S methods of determining prices, or over
competitive bidding or market conditions, CONSULTANT'S opinions of probable Project
Cost or Construction Cost provided for herein are to be made on the basis of
CONSULTANT'S experience and qualifications and represent CONSULTANT'S best
judgment as a design professional familiar with the construction industry but
CONSULTANT cannot and does not guarantee that bids or the construction cost will not
vary from opinions of probable Cost prepared by CONSULTANT.
17.1 No officer or employee of CITY shall have a financial interest, directly or indirectly, in
any contract with CITY, or shall be financially interested, directly or indirectly, in the sale
to CITY of any land, materials, supplies or service, except on behalf of CITY as an officer
or employee. This prohibition extends to other CITY boards and commissions, which are
more than purely advisory. The prohibition also applies to subcontracts on CITY projects.
17.2 CONSULTANT acknowledges that it is informed that the Charter of CITY prohibits a
CITY officer or employee, as those terms are defined in the Ethics Code, from having a
financial interest in any contract with CITY or any CITY agency.
17.3 CONSULTANT warrants and certifies, and this Agreement is made in reliance thereon,
that it, its officers, employees and agents are neither officers nor employees of CITY.
CONSULTANT further warrants and certifies that it has tendered to CITY a
Discretionary Contracts Disclosure Statement.
18.1 All consultants must disclose if it is associated in any manner with a CITY official or
employee in a business venture or business dealings. To be "associated" in a business
venture or business dealings includes being in a partnership or joint venture with the
officer or employee, having a contract with the officer or employee, being joint owners of
a business, owning at least 10% of the stock in a corporation in which a CITY officer or
employee also owns at least 10 %, or having an established business relationship as client
or customer.
19.1 Services provided by CONSULTANT under this Agreement will be performed in a
manner consistent with that degree of care and skill ordinarily exercised by members of
the same profession currently practicing under similar circumstances.
19.2 CONSULTANT shall be represented by a registered professional engineer licensed to
practice in the State of Texas at meetings of any official nature concerning the Project,
including but not limited to scope meetings, review meetings, pre -bid meetings, and
preconstruction meetings.
19.3 The Texas Board of Professional Engineers, 1917 IH -35 South, Austin, Texas 78741,
(512) 440 -7723 has jurisdiction over individuals licensed under Title 22 of the Texas
Administrative Code.
19.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents, or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
ARTICLE 20: RIGHT OF REVIEW AND AUDIT
20.1 CONSULTANT agrees that CITY may review any and all of the work performed by
CONSULTANT UNDER THIS Agreement. CITY is granted the right to audit, at
CITY'S election, all of CONSULTANT'S records and billings related to performance of
this Agreement. CONSULTANT agrees to retain such records for a minimum of four
years following completion of this Agreement. Any payment, settlement, satisfaction, or
release provided under this Agreement shall be subject to CITY'S rights as may be
disclosed by such audit.
ARTICLE 21: ENTIRE AGREEMENT
21.1 This Agreement, together with Attachments 1, 2, 3, and 4, represents the entire and
integrated agreement between CITY and CONSULTANT and supersedes all prior
Project Agreement for Engineering Services rev 03122014 Page 27
negotiations, representations, or agreements, either oral or written. This Agreement may
be amended only by written instrument signed by both CITY and CONSULTANT.
22.1 The obligations of the parties to this Agreement shall be performable in the City of
Schertz or its Extra Territorial Jurisdiction, located in Bexar, Comal, and Guadalupe
Counties, Texas, and if legal action, such as civil litigation, is necessary in connection
therewith, exclusive venue shall lie in Guadalupe County, Texas.
23.1 Except as may be provided elsewhere herein, all notices, communications, and reports
required or permitted under this Contract shall be personally delivered or mailed to the
respective party by depositing the same in the United States Postal Service addressed to
the applicable address shown below, unless and until either party is otherwise notified in
writing by the other party of a change of such address. Mailed notices shall be deemed
communicated as of five calendar days of mailing. Notices provided via email shall be
deemed communicated as of the next business day after the notice is sent.
If intended for CITY, to:
If intended for CONSULTANT, to:
City of Schertz
Engineering Department
10 Commercial Place
Schertz, Texas 78154
The address listed on the first page of this
Agreement.
I W • WI ►1 ►t ►Y1[ �► -r 1C
24.1 In performing services under this Agreement, the relationship between CITY and
CONSULTANT is that of independent contractor. By the execution of this Agreement,
CONSULTANT and CITY do not change the independent contractor status of
CONSULTANT. CONSULTANT shall exercise independent judgment in performing its
duties and obligations under this Agreement and is solely responsible for setting working
hours, scheduling or prioritizing the work flow and determining how the Services are to be
performed. No term or provision of this `Agreement or act of CONSULTANT in the
performance of this Agreement shall be construed as making CONSULTANT the agent,
servant or employee of CITY, or as making CONSULTANT or any of its agents or
employees eligible for any fringe benefits, such as retirement, insurance and worker's
compensation, which CITY provides to or for its employees.
ARTICLE 25: CAPTIONS
25.1 The captions for the individual provisions of this Agreement are for informational
purposes only and shall not be construed to effect or modify the substance of the terms
and conditions of this Agreement to which any caption relates.
Project Agreement for Engineering Services rev 03122014 Page 28
IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Agreement
effective as of , 20_ (the "Effective Date ").
CITY OF SCIIERTZ CONSULTANT
CITY MANAGER
Consultant Name
TITLE
Project Agreement for Engineering Services rev 03122014 Page 29
ATTACHMENT 1
Project Agreement for Engineering Services rev 03122014 Page 30
Preliminary Engineering Report
30% Design
60% Design
90% Design
Bid Phase
Construction Phase including
Closeout
TOTAL ESTIMATED COST
(NOT -TO- EXCEED AMOUNT)
ESTIMATED COST DAYS
Project Agreement for Engineering Services rev 03122014 Page 31
ATTACHMENT 3
Project Agreement for Engineering Services rev 03122014 Page 32
1 i R `. 11
CITY OF SCHERTZ
CITY MANAGER
CONSULTANT
Consultant Name
TITLE
Project Agreement for Engineering Services rev 03122014 Page 33
EXHIBIT ._:
CON. FENDLEY & ASSOCIATES. INC.
2014 STANDARD RATE SCHEDULE #660
January 1, 1 14 — December 31, 2014
Principal / Chief Engineer ....................... ..................(Professional VIII)* .................... $250.00 /HR
Senior Engineer ......................... ...............................
(Professional VII)* .....................
$235.00/HR
Senior Project Manager ............. .........................:.....
(Professional VI)* ......................
$200.00 /HR
Project Manager ........................ ...............................
(Professional V)* .......................
$180.00 /HR
Senior Hydrologist ..................... ...............................
(Professional V)* ....................... $180.00 /HR
Project Engineer III .. ............................... ..................(Professional
III) *.......................
$145.001HR
Project Engineer 11 ... ............................... ..................(Professional
II) *........................
$125.00 /HR
Project Engineer I .... ............................... ..................(Professional
1) *.........................
$105.00 /HR
Senior Technician .. ............................... ....................(Technician
IV) *.........................
$120.00 /HR
Technician III ......... ............................... ....................(Technician III) *.........................
$105.00 /HR
Technician II .......... ............................... ....................(Technician II) * ............................
$95.00 /HR
Technician I ........... ............................... ....................(Technician 1)* .............................
$75.00/HR
Licensed State Land Surveyor ............... ..................(Professional
Vl)* ......................
$200.00 /HR
Registered Professional Land Surveyor . ..................(Professional
III) *.......................
$145.00/HR
4 -Man Survey Crew ......................................................................
............................... $165.00/HR
3 -Man Survey Crew ......................................................................
............................... $145.00/HR
2 -Man Survey Crew ......................................................................
...............................
$125.00/HR
1 -Man Survey Crew ......................................................................
...............................
$105.00 /HR
Construction Manager ............................ ..................(Professional
IV)* ......................
$165.00/HR
Senior Field Construction Observer ....... ..................(Professional
1) *.........................
$105.00 /HR
Field Construction Observer ................. ....................(Technician II) * ............................
$90.00 /HR
Utility Specialist ....... ............................... ..................(Professional
II) *........................
$125.00/HR
Telecommunications Designer ............. ....................(Technician
II) *....... .....................
$95.00 /HR'
Telecommunications Fieldman ............. ....................(Technician
1 ) *.............................
$75.00 /HR
GIS Manager ........... ............................... ..................(Professional
III) * .......................
$145.00 /HR
GIS Analyst ............ ............................... ....................(Technician
II ) *............................ $95.00 /HR
Right -of -Way Agent ......................................................................
...............................
$110.00 /HR
Administrative.................................................................................
...............................
$90.00 /HR
Clerical............................................................................................
...............................
$65.00 /HR
* Category labels "Professional W' etc. are interim designations for 2014 and are to be implemented in lieu of previous position titles in 2015.
EXHIBIT B to CITY OF SCHERTZ ON -CALL ENGINEERING SERVICES MASTER AGREEMENT
SUBSURFACE UTILITY ENGINEERING
Level C & D (Without Level B) .............................
Level B — Designation (Without Level C & D) .......
Level A — Location (Non- Destructive Excavation):
Vertical Depth: 0 Ft. — 5 Ft ................
5 Ft. — 8 Ft ................
8 Ft. — 13 Ft ..............
13 Ft — 20 Ft
.......................... ............................... $0.45 1Foot
.......................... ............................... $1.43 1Foot
........................ ............................... $1,125/Hole
. ... ...............................
> 20 Ft ......... ...............................
Ground Penetrating Radar ...... ...............................
SUE Technician (With Equipment) ........................
Vacuum Excavation Truck with 2 Technicians.......
Traffic Cnntrnl riffirpr
Traffic Control (Lane Closures, etc.) ........... ...............................
Permits (Local, State, etc.) .......................... ....:..........................
Designation & Traffic Control Vehicles ....... ...............................
LocationVehicles ........................................ ...............................
.............. ....................$1,580 /Hole
... ............................... $1,825/Hole
.............. ....................$2,510 /Hole
.............. I................... $3,600 /Hole
........ ............................... $250 /HR
......... ............................... $98 /HR
....... ............................... $250 /HR
............................. @ Cost + 10%
........................ To Be Negotiated
.............................@ Cost + 10%
.... ............................... $3.40 /Mile
.... ............................... $6.80 /Mile
REIMBURSABLE EXPENSES
TechnologyFee ( *) ................................................................................... .......................$3.75/HR
Consultant or Specialty Contractor (Outside Firm) ................... ...............................
@ Cost + 10%
Courier, Special Equipment Rental ............................................ ..............................@
Cost + 10%
Reasonable Out of Town Travel Expenses (Air, Hotel, Rental, etc.) ... ...............................
@ Cost
Mileage (Standard Car or Truck) ...................................... ...............................
IRS Approved Rate
Per Diem for Out of Town Travel (Per Day /Person) .............................. ............................$35
/Day
TitlePlant Charges ................................................................... ............................... @ Cost + 10%
Other Misc. Expenses Related to the Project @ Cost + 10%
........................... ...............................
In -House Reproduction:
Copies(Up to I V x 17 ") .................................................... ...............................
$0.15 /Each
Color Prints (Up to 11" x 17") ........................ ............................... .....................$1.50
/Each
Color Prints (Larger than 11" x 17") ........... ............................... ......................$3.00
/Sq. Ft.
Bluelines(All Sizes) ...................................... ............................... .....................$1.00
/Each
BondPrints (All Sizes) .................................. ............................... .....................$2.00
/Each
MylarPrints .................................................. ............................... ....................$12.00
/Each
VellumPrints ..................................................................... ...............................
$9.00 /Each
(') Technology charges added to each billable man -hour.
EXHIBIT
NDLEY &ASSOCIATES, INC. .
2014 STANDARD RATE SCHEDULE #660
January 1, 2014 — December 31, 2014
Principal / Chief Engineer ....................... ..................(Professional VIII)* ....................
$250.00 /HR
Senior Engineer ....... ............................... ..................(Professional
VII)* .....................
$235.00/HR
Senior Project Manager ............. ...............................
(Professional VI)* ......................
$200.00 /HR
Project Manager ...... ............................... ..................(Professional
V)* .......................
$180.00 /HR
Senior Hydrologist ... ............................... ..................(Professional
V)* .......................
$180.00 /HR
Project Engineer III .. ............................... ..................(Professional
III) *.......................
$145.00/HR
Project Engineer II ... ............................... ..................(Professional
II) *........................
$125.00/HR
Project Engineer I .... ............................... ..................(Professional
1) *.........................
$105.00 /HR
Senior Technician .. ............................... ....................(Technician
IV) *.........................
$120.00 /HR
Technician III ......... ............................... ....................(Technician
III) *.........................
$105.00 /HR
Technician II .......... ............................... ....................(Technician
II) * ............................
$95.00 /HR
Technician I ........... ............................... ....................(Technician
1) * .............................
$75.00 /HR
Licensed State Land Surveyor ............... ..................(Professional
VI)* ......................
$200.00 /HR
Registered Professional Land Surveyor . ..................(Professional
III) *.......................
$145.00/HR
4 -Man Survey Crew ....... ...............................
3 -Man Survey Crew ....... ...............................
2 -Man Survey Crew ....... ...............................
1 -Man Survey Crew
....................... ............................... $165.00/HR
....................... ............................... $145.00/HR
....................... ............................... $125.00/HR
$105 00 /HR
...................................................................... ...............................
.
Construction Manager ............................ ..................(Professional
IV)* ......................
$165.00/HR
Senior Field Construction Observer ....... ..................(Professional
1) *.........................
$105.00 /HR
Field Construction Observer ................. ....................(Technician
II) * ............................
$90.00 /HR
Utility Specialist ....... ............................... ..................(Professional
II) *........................
$125.00/HR
Telecommunications Designer ............. ....................(Technician
II) * ............................
$95.00 /HR
Telecommunications Fieldman ............. ....................(Technician
1) * .............................
$75.00 /HR
GIS Manager ........... ............................... ..................(Professional
III) *.......................
$145.00/HR
GIS Analyst ............ ............................... ....................(Technician
II ) *............................
$95.00 /HR
Right -of -Way Agent ......................................................................
...............................
$110.00 /HR
Administrative.................................................................................
...............................
$90.00 /HR
Clerical............................................................................................
............................... $65.00 /HR
* Category labels "Professional xx" etc. are interim designations for 2014 and are
to be implemented in lieu of previous position titles in 2015.
EXHIBIT B to CITY OF SCHERTZ ON -CALL ENGINEERING
SERVICES MASTER AGREEMENT
SUBSURFACE UTILITY ENGINEERING
Level C & D (Without Level B) ............................ ...............................
Level B — Designation (Without Level C & D) ..... ...............................
Level A — Location (Non- Destructive Excavation):
➢ Vertical Depth: 0 Ft. — 5 Ft .. ...............................
5 Ft. — 8 Ft ..................
8 Ft. — 13 Ft ................
13 Ft.— 20 Ft ................
> 20 Ft ......................
.................. $0.45 /Foot
.................. $1.43 /Foot
............................. $1,125 /Hole
......... ....................$1,580 /Hole
......... ....................$1,825/Hole
...................... ....................$2,510 /Hole
Ground Penetrating Radar ............................... ...............................
SUE Technician (With Equipment) .................. ...............................
Vacuum Excavation Truck with 2 Technicians . ...............................
Traffic Control Officer ....................................... ...............................
Traffic Control (Lane Closures, etc.) ................ ...............................
Permits (Local, State, etc.) ............................... ...............................
Designation & Traffic Control Vehicles ............ ...............................
LocationVehicles ............................................. ...............................
............................. $3, 600 /Hole
... ............................... $250 /HR
..... ............................... $981H R
... ............................... $250/H R
............... I......... @ Cost + 10%
.................... To Be Negotiated
......................... @ Cost + 10%
...........I ................... $3.40 /Mile
............. I................. $6.80 /Mile
REIMBURSABLE EXPENSES
TechnologyFee ( *) ................................................................................... .......................$3.75/HR
Consultant or Specialty Contractor (Outside Firm) .................... ..............................@ Cost + 10%
Courier, Special Equipment Rental ............................................ ..............................@ Cost + 10%
Reasonable Out of Town Travel Expenses (Air, Hotel, Rental, etc.) ... ............................... @ Cost
Mileage (Standard Car or Truck) ...................................... ............................... IRS Approved Rate
Per Diem for Out of Town Travel (Per Day /Person) .............................. ............................$35 /Day
TitlePlant Charges .................................................................... ..............................@ Cost + 10%
Other Misc. Expenses Related to the Project ........................... ............................... @ Cost + 10%
In -House Reproduction:
➢ Copies (Up to 11" x 17 ") .......................... ............................... ..........................$0.15 /Each
➢ Color Prints (Up to 11" x 17") ........................ ............................... .....................$1.50 /Each
➢ Color Prints (Larger than 11" x 17") ........... ............................... ......................$3.00 /Sq. Ft.
➢ Bluelines (All Sizes) ...................................... ............................... .....................$1.00 /Each
➢ Bond Prints (All Sizes) .................................. ............................... .....................$2.00 /Each
➢
Mylar Prints .................................................. ............................... ....................$12.00 /Each
➢ Vellum Prints ................................................ ............................... .....................$9.00 /Each
( *) Technology charges added to each billable man -hour.
Agenda No. 3
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department: Engineering
Subject: Resolution No. 14 -R -55 — A Resolution of
the City Council of the City of Schertz,
Texas authorizing and approving a
Professional Services Agreement with Ford
Engineering Inc. for On -Call Engineering
Services and all matters in connection
therewith
BACKGROUND
The City of Schertz advertised for Request for Qualifications for On -Call Engineering Firms in
February 2014. Statements of Qualifications were received by the City of Schertz on March 18,
2014. Statements were received from 26 firms. A panel of five City Staff and Management
representatives reviewed each of the documents submitted in detail. The submittals were evaluated
for the following criteria:
1. Understanding of the requirement;
2. Management ability;
3. Commitment to quality;
4. Qualifications and experience of key personnel;
5. Resources and facilities;
6. Relevant prior experience; and
7. Past performance, particularly with City contracts.
The panel met on several occasions to discuss the submittals and come to consensus regarding six
firms to be invited for personal interviews.
Interviews were held with the firms at the end of April. The panel again met to discuss results of the
interviews.
It is recommended that the City award On Call Engineering Services Agreements to the following
consulting engineering firms:
• Cobb, Fendley & Associates, Inc.
• Ford Engineering, Inc.
• Lockwood, Andrews & Newman, Inc.
• Pape- Dawson Engineers, Inc.
Having this group of firms available for consultation allows the City to utilize the most qualified firm
for each particular project based on the particular engineering qualifications and experience.
The agreements for On -Call Engineering Services will remain in force for three years with two
optional one -year extensions.
Once a project is identified and consulting services are needed, Staff will identify which of the four
on -call firms is best suited for the project. A proposed scope, fee, and schedule will be requested and
a project - specific agreement will be negotiated with that firm. The award of the On -Call Agreement
allows the City to avoid an RFQ process for every project — small or large — and to enter into a
contract with a firm already fully vetted and deemed to be best qualified for the project. Staff will
also be able to request assistance with general engineering services such as plan review, standard
detail and specification development, design services needed for maintenance or rehabilitation
projects for which City personnel will perform the construction work.
Goal:
Approve Resolution 14 -R -55 approving a three -year Professional Services Agreement for On -Call
Engineering with Ford Engineering, Inc.
Community Benefit:
The City will be able to utilize the most qualified firm for each particular project based on the firms
qualifications and experience, resulting in an effective and efficient project process to insure that the
citizens and businesses of Schertz are provided with top -notch facilities and services.
Summary of Recommended Action:
Approve Resolution 14 -R -55 approving a three -year Professional Services Agreement with Ford
Engineering, Inc.
FISCAL IMPACT
Fiscal impact will vary with particular projects and the use of a specific firm and their fee schedule as
outlined in the Professional Service Agreement.
STAFF RECOMMENDATION
Staff recommends approval of Resolution 14 -R -55
ATTACHMENT(S)
Resolution 14 -R -55
RESOLUTION NO. 14 -R -55
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AND APPROVING A
PROFESSIONAL SERVICES AGREEMENT WITH FORD
ENGINEERING, INC. FOR ON -CALL ENGINEERING SERVICES AND
ALL MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has determined that the City
requires a professional services agreement with Ford Engineering, Inc. relating to on -call
engineering services for the City; and
WHEREAS, City staff has determined that Ford Engineering, Inc. is qualified to provide
such services for the City; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Ford Engineering, Inc. pursuant to the Professional Services Agreement for
Engineering Services attached hereto as Exhibit A (the "Agreement ").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Ford Engineering, Inc. in substantially the form set forth on Exhibit
A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 1St day of July, 2014.
CITY OF SCHERTZ, TEXAS
Michael Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(CITY SEAL)
50506887.1
EXHIBIT A
SECOND AMENDMENT TO AGREEMENT FOR ENGINEERING SERVICES
50506887.1 A -1
CITY OF SCHERTZ
ON CALL ENGINEERING SERVICES MASTER AGREEMENT
TAE STATE OF TEXAS
GUADALUPE COUNTY ,
This On Call Engineering Services Agreement (Agreement) is made and entered into by and
between the City of Schertz, Texas (City), a Texas municipality, and Ford Engineering, Inc.
(Professional).
Section 1. Duration. This Agreement shall become effective upon the date executed
below and shall remain in effect for a period of three years from its execution unless
terminated as provided for herein.
This Agreement may be extended if approved by the City Council for a period of one year.
A maximum of two extensions may be made.
This Agreement shall remain in force automatically beyond the effective term for a period
which may reasonably be required for the satisfactory completion of a project which is
already underway at the time of term expiration unless otherwise terminated as provided for
herein.
Section 2. Scope of Work.
(A) In consideration of the Professional's three year authority to provide the Services
provided for herein, and other consideration the sufficiency and receipt of which is hereby
acknowledged, the Professional shall provide on -call engineering services to the City for
purposes of general consulting, design, bid, and construction phase services the City of
Schertz to include:
1. Water Transmission and distribution
2. Wastewater collection and conveyance
3. Streets, drainage and site work
Projects for which services will be needed may include new infrastructure, miscellaneous
improvements, modifications, and upgrades to existing facilities, which will require a Scope
of Services to be provided by a qualified consultant(s) or consulting firm(s) or team.
(B) The Professional shall provide plans, technical specifications, bid and construction
phase support, and other related services, as requested, not limited to:
1. General Service including presentations at meetings and other Professional
services as requested.
On Call Engineering Services Master Agreement Ford 2014 Page 1 of 6
2. Design services including field surveys, testing, design concepts. providing
probable construction costs, document progress intervals, provide detailed plans
and specifications, and other related services to design the project and prepare it to
bid.
3. Prepare documents for, and coordinate with other utilities and associated
local, state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits.
4. During construction phase, provide construction stakes as requested,
prepare change orders, specifications and documentation, make recommendations
on Contractor change order requests, attend progress meetings and monitor
construction schedule, provide observation and owner representation during
construction, review and process all submittals, recommend substantial completion
of the project, prepare record drawings, perform final inspection and report on final
completion of the project.
The provisions of Service required shall be referred to herein as the "Scope of
Work ".
(C) The quality of Services provided under this Agreement shall be of the level of
professional quality performed by Professionals regularly rendering this type of
service.
(D) The Professional shall perform its Services for the Project in compliance with
all statutory, regulatory and contractual requirements now or hereafter in effect as
may be applicable to the rights and obligations set forth in the Agreement.
(E) The Professional may rely upon the accuracy of reports and surveys provided
by the City except when defects should have been apparent to a reasonably
competent professional or when it has actual notice of any defects in the reports and
surveys.
(F) The Professional shall be required to execute a project contract in
substantially the same form as the attached "Exhibit A" for each assigned Scope of
Services project.
Section 3. Compensation. The Professional shall be compensated pursuant to
the agreed upon fee schedule which shall be "Exhibit B" to this Agreement.
Section 4. Time of Completion. The prompt completion of the services relating to
any Scope of Work is critical to the City. Unnecessary delays in providing services
under the Scope of Work shall be grounds for dismissal of the Professional and
termination of this Agreement without any or further liability to the City other than a
prorated payment for necessary, timely, and conforming work done by Professional
prior to the time of termination. The Scope of Work shall provide, in either calendar
On Call Engineering Services Master Agreement Ford 2014 Page 2 of 6
days or by providing a final date, a time of completion prior to which the Professional
shall have completed all tasks and services described in the Scope of Work.
Section 5. Additional Provisions.
(A) Subletting. The Professional shall not sublet or transfer any portion of the
work under this Agreement or any Scope of Work issued pursuant to this Agreement
unless specifically approved in writing by the City.
(B) Compliance with Laws. The Professional shall comply with all federal, state
and local laws, statutes, ordinances, rules and regulations, and the orders and
decrees of any courts, administrative, or regulatory bodies in any matter affecting
the performance of this Agreement, including, without limitation, worker's
compensation laws, minimum and maximum salary and wage statutes and
regulations, and licensing laws and regulations. When required, the Professional
shall furnish the City with satisfactory proof of compliance.
(C) Independent Contractor. Professional acknowledges that Professional is an
independent contractor of the City and is not an employee, agent, official or
representative of the City. Professional shall not represent, either expressly or
through implication, that Professional is an employee, agent, official or
representative of the City. Income taxes, self - employment taxes, social security
taxes and the like are the sole responsibility of the Professional.
(D) Non - Collusion. Professional represents and warrants that Professional has
not given, made, promised or paid, nor offered to give, make, promise or pay any
gift, bonus, commission, money or other consideration to any person as an
inducement to or in order to obtain the work to be provided to the City under this
Agreement. Professional further agrees that Professional shall not accept any gift,
bonus, commission, money, or other consideration from any person (other than from
the City pursuant to this Agreement) for any of the services performed by
Professional under or related to this Agreement. If any such gift, bonus,
commission, money, or other consideration is received by or offered to Professional,
Professional shall immediately report that fact to the City and, at the sole option of
the City, the City may elect to accept the consideration for itself or to take the value
of such consideration as a credit against the compensation otherwise owing to
Professional under or pursuant to this Agreement.
(E) In the case of any conflicts between the terms of this Agreement and wording
contained within the Scope of Services, this Agreement shall govern. The Scope of
Services is intended to detail the technical scope of services, fee schedule, and
contract time only and shall not dictate Agreement terms.
On Call Engineering Services Master Agreement Ford 2014 Page 3 of 6
Section 6. Termination.
(A) This Agreement may be terminated:
1. By the mutual agreement and consent of both Professional and City;
2. By the City, immediately upon notice in writing to the Professional, as
consequence of the failure of Professional to perform the services contemplated by
this Agreement in a timely or satisfactory manner;
3. By the City, at will and without cause upon not less than thirty (30) days
written notice to the Professional.
Section 7. Indemnification. Professional agrees to indemnify and hold the
City of Schertz, Texas and all of its present, future and former agents,
employees, officials and representatives harmless in their official, individual
and representative capacities from any and all claims, demands, causes of
action, judgments, liens and expenses (including attorney's fees, whether
contractual or statutory), costs and damages (whether common law or
statutory), costs and damages (whether common law or statutory, and
whether actual, punitive, consequential or incidental), of any conceivable
character, for injuries to persons (including death) or to property (both real
and personal) created by, arising from or in any manner relating to the
services or goods performed or provided by Professional — expressly
including those arising through strict liability or under the constitutions of the
United States or Texas — BUT ONLY TO THE EXTENT ALLOWABLE BY SEC.
271.904(a) OF THE TEXAS LOCAL GOVERNMENT CODE AS APPLICABLE.
Section 8. Notices. Any notice required or desired to be given from one party to
the other party to this Agreement shall be in writing and shall be given and shall be
deemed to have been served and received (whether actually received or not) if (i)
delivered in person to the address set forth below; (ii) deposited in an official
depository under the regular care and custody of the United States Postal Service
located within the confines of the United States of America and sent by certified
mail, return receipt requested, and addressed to such party at the address
hereinafter specified; or (iii) delivered to such party by courier receipted delivery.
Either party may designate another address within the confines of the continental
United States of America for notice, but until written notice of such change is
actually received by the other party, the last address of such party designated for
notice shall remain such party's address for notice.
Section 9. No Assignment. Neither party shall have the right to assign that party's
interest in this Agreement without the prior written consent of the other party.
On Call Engineering Services Master Agreement Ford 2014 Page 4 of 6
Section 10. Severability. If any term or provision of this Agreement is held to be
illegal, invalid or unenforceable, the legality, validity or enforceability of the
remaining terms or provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable term or provision, there shall be
added automatically to this Agreement a legal, valid or enforceable term or provision
as similar as possible to the term or provision declared illegal, invalid or
unenforceable.
Section 11. Waiver. Either City or the Professional shall have the right to waive
any requirement contained in this Agreement that is intended for the waiving party's
benefit, but, except as otherwise provided herein, such waiver shall be effective only
if in writing executed by the party for whose benefit such requirement is intended.
No waiver of any breach or violation of any term of this Agreement shall be deemed
or construed to constitute a waiver of any other breach or violation, whether
concurrent or subsequent, and whether of the same or of a different type of breach
or violation.
Section 12. Governinq Law; Venue. This Agreement and all of the transactions
contemplated herein shall be governed by and construed in accordance with the
laws of the State of Texas. The provisions and obligations of this Agreement are
performable in Guadalupe County, Texas such that exclusive venue for any action
arising out of this Agreement shall be in Guadalupe County, Texas.
Section 13. Paragraph Headings; Construction. The paragraph headings
contained in this Agreement are for convenience only and shall in no way enlarge or
limit the scope or meaning of the various and several paragraphs hereof. Both
parties have participated in the negotiation and preparation of this Agreement and
this Agreement shall not be construed either more or less strongly against or for
either party.
Section 14. Binding Effect. Except as limited herein, the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, devisees, personal and legal representatives, successors
and assigns.
Section 15. Gender. Within this Agreement, words of any gender shall be held
and construed to include any other gender, and words in the singular number shall
be held and construed to include the plural, unless the context otherwise requires.
Section 16. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
On Call Engineering Services Master Agreement Ford 2014 Page 5 of 6
Section 17. Entire Agreement. It is understood and agreed that this Agreement
contains the entire agreement between the parties and supersedes any and all prior
agreements, arrangements or understandings between the parties relating to the
subject matter. No oral understandings, statements, promises or inducements
contrary to the terms of this Agreement exist. This Agreement cannot be changed
or terminated orally.
Section 18. Disclosure of Business Relationships /Affiliations; Conflict of
Interest Questionnaire. Professional represents that it is in compliance with the
applicable filing and disclosure requirements of Chapter 176 of the Texas Local
Government Code.
EXECUTED on this the day of , 2014.
CITY: PROFESSIONAL:
By: By: 1 r L
Name: John C. Kessel Name: Mark B. Hill, P.E.
Title: City Manager Title: Principal
ADDRESS FOR NOTICE:
CITY
City of Schertz
Attn: John C. Kessel, City Manager
1400 Schertz Parkway
Schertz, Texas 78154
with a copy to:
City Attorney
City of Schertz, Texas
Attn: Charles E. Zech
2517 N. Main Avenue
San Antonio, Texas 78212
PROFESSIONAL
Ford Engineering, Inc.
10927 Wye Dr., Suite 104
San Antonio, Texas 78217
On Call Engineering Services Master Agreement Ford 2014 Page 6 of 6
This Agreement is entered into in the City of Schertz, Texas, between the City of Schertz, a
Texas municipal corporation, hereinafter called "CITY" and/or "OWNER", and CONSULTANT
NAME AND ADDRESS.
Engineer(s), duly licensed, and practicing under the laws of the State of Texas, hereinafter called
"CONSULTANT ", this Agreement being executed by City pursuant to appropriate action by the
City Council of CITY and by CONSULTANT, for engineering services hereinafter set forth in
connection with the above designated Project for CITY.
ARTICLE 1
DEFINITIONS
ARTICLE 2
SCOPE OF SERVICES
ARTICLE 3
COMPENSATION FOR SERVICES
ARTICLE 4
METHOD OF PAYMENT
ARTICLE 5
TIME, SCHEDULE, AND PERIOD OF SERVICE
ARTICLE 6
COORDINATION WITH CITY
ARTICLE 7
REVISIONS TO DRAWINGS AND SPECIFICATIONS
ARTICLE 8
OWNERSHIP OF DOCUMENTS
ARTICLE 9
TERMINATION AND /OR SUPENSION OF WORK-
ARTICLE 10
CONSULTANT'S WARRANTY
ARTICLE 11
ASSIGNMENT OR TRANSFER OF INTEREST
ARTICLE 12
INSURANCE REQUIREMENTS
ARTICLE 13
INDEMNIFICATION
ARTICLE 14
CLAIMS AND DISPUTES
ARTICLE 15
SEVERABILITY
ARTICLE 16
ESTIMATES OF COST
ARTICLE 17
INTEREST IN CITY CONTRACTS PROHIBITED
ARTICLE 18
CONFLICTS OF INTEREST DISCLOSURE
ARTICLE 19
STANDARD OF CARE
ARTICLE 20
RIGHT OF REVIEW AND AUDIT
ARTICLE 21
ENTIRE AGREEMENTS
ARTICLE 22
VENUE
ARTICLE 23
NOTICES
ARTICLE 24
INDEPENDENT CONTRACTOR
ARTICLE 25
CAPTIONS
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
ATTACHMENT 2
PROJECT DESIGN PHASES COST AND TIMELINE
ATTACHMENT 3
BILLING RATE SCHEDULE
ATTACHMENT 4
ADDITIONAL PROJECTS AND /OR EXPANDED SCOPE
OF SERVICES
Project Agreement for Engineering Services rev 03122014 Page 1
ARTICLE 1: DEFINITIONS
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE MEANINGS
AS SET OUT BELOW:
Agreement means this Master Agreement between CITY and CONSULTANT that
establishes the terms and conditions for all Projects to be carried out under this
Agreement.
Application for Compensation means the form CONSULTANT uses to make a request
to be paid for completed services.
Application for Payment means the form. CONSTRUCTION CONTRACTOR uses to
make a request to be paid for completed work.
Certificate for Payment means the form CONSULTANT uses to make
recommendations on CONSTRUCTION CONTRACTOR'S Application for Payment.
CITY means the City of Schertz, Texas.
Claim means a demand or assertion by one of the parties seeking, as a matter of right,
adjustment, or interpretation of the terms of this Agreement, payment of money,
extension of time, or other relief with respect to the terms of this Agreement. The term
"claim" also includes other disputes and matters in question between the OWNER and
CONSULTANT arising out of or relating to this Agreement.
Compensation means amounts paid by CITY to CONSULTANT for completed services
under this Agreement.
CONSTRUCTION CONTRACTOR means the fine hired by CITY to construct the
Project.
Construction Contract Documents means the contract between the CITY and the film
contracted by CITY to construct the Project and all documents therein.
CONSULTANT means the entity named on the cover page of this Agreement and its
officers, partners, employees, agents, and representatives, and all its subconsultants, if
any, and all other persons or entities for which CONSULTANT is legally responsible.
ENGINEER means CITY's City Engineer.
Final Compensation means the final amounts paid by CITY to CONSULTANT for
completed services under this Agreement.
Final Payment means the final amounts paid by CITY to CONSTRUCTION
CONTRACTOR for completed work under the construction contract.
Project Agreement for Engineering Services rev 03122014 Page 2
Opinion of Probable Construction Cost means CONSULTANT'S estimate of probable
construction cost for a Project based on its experience and qualifications as a practitioner
of its profession and the current costs in the local area.
OWNER means the City of Schertz, Texas.
Payment means amount paid by CITY to CONSTRUCTION CONTRACTOR for work
performed under the Construction Contract Documents.
Plans and Specifications means the construction documents.
Project means the capital improvement /construction development undertaking of CITY
for which CONSULTANT'S services, as stated in the Scope of Services, and to be
provided pursuant to this Agreement.
Proposal means CONSULTANT'S proposal to provide services for the Project.
Schedule of Values means the fees allocated to services, reimbursable and /or various
portions of the services or Work, prepared in such form, and supported by such data to
substantiate its accuracy as OWNER may require.
Scope of Services means the services described in Article 4, Scope of Services.
Services means professional services performed by CONSULTANT.
Total Compensation means the amount paid to CONSULTANT under Article 2,
Compensation for Basic Services, of this Agreement.
Work means the labor and materials required to complete a Project by
CONSTRUCTION CONTRACTOR in accordance with the Construction Contract
Documents.
ARTICLE 2: SCOPE OF SERVICES
2.1 CONSULTANT shall not commence work until being thoroughly briefed on the scope of
the Project and being notified in writing to proceed. The scope of the Project and
CONSULTANT'S Services required shall be reduced by CONSULTANT to a written
summary of the scope meeting. That Scope of Services and associated time schedule,
along with cost, once approved by CITY, will be included as a part of this Agreement as
Attachments 1 and 2 herein. Should the scope subsequently change, either
CONSULTANT or CITY may request a review of the anticipated services, with an
appropriate adjustment in compensation.
2.2 Communications by and with CONSULTANT'S subconsultants shall be through
CONSULTANT. Communications by and with subcontractors and material suppliers shall
be through CONSTRUCTION CONTRACTOR.
Project Agreement for Engineering Services rev 03122014 Page 3
2.3 CONSULTANT, in consideration for the Compensation herein provided, shall render the
professional Services described in this Section that are necessary for the development of
the Project, including plans and specifications, construction management services, any
special and general conditions, and instructions to bidders as acceptable to the Engineer,
or his or her duly authorized representative.
2.4 CONSULTANT shall complete a Project in accordance with the following phases and
CONSULTANT'S Scope of Services attached and incorporated herein as Attachments 1
and 2.
2.4.1 PROJECT DESIGN PHASES
2.4.2
Preliminary Engineering Report
2.4.3
30% Design
2.4.4
60% Design
2.4.5
90% Design
2.4.6
Bid Documents and Services
2.4.7
Construction Phase Services
2.4.8
Project Close Out and Final Payment
2.5 Upon acceptance and approval of the plans, reports or other deliverables required for a
Phase of work, as set forth in the Scope of Services, Engineer shall authorize
CONSULTANT, in writing, to proceed with the next phase of Work.
2.6 During Design Phases CONSULTANT shall:
2.6.1 Coordinate and meet with City staff and Project stakeholders as appropriate
throughout the Project. Assist staff at meetings with stakeholders, workshops,
and presentations to advisory commissions and City Council.
2.6.2 Provide the necessary field survey services to determine the existing field
conditions, including all utilities and surface features to the maximum extent
possible.
2.6.3 CONSULTANT shall make every effort to minimize utility adjustments, where
possible.
2.6.4 In the event electrical, communication, gas or other facilities are encountered,
CONSULTANT shall identify and incorporate those facilities at the completion of
each Project Phase in order to determine the magnitude of any potential
adjustment.
2.6.5 Perform the necessary testing to determine the existing site conditions and proper
design for construction and methods of any necessary demolition.
2.6.6 Follow and comply with the requirements for the Design Phases listed in this
Agreement, CITY'S Unified Development Code, if applicable, and CITY'S
Design Guidance Manual, both of which are incorporated by reference herein.
Project Agreement for Engineering Services rev 03122014 Page 4
2.6.7 In case of conflicts, follow and comply with the most stringent requirements for
the Design Phases.
2.6.8 Prepare documents for, and coordinate with other utilities and associated local,
state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits (determined during scoping for
each individual project).
2.6.9 Provide detailed plans and specifications for the Project at appropriate progress
intervals in requested formats (may include hard copy, .pdf, and .dwg).
2.6.10 Provide Opinion of Probably Construction Cost.
2.7 During Bid Phase CONSULTANT shall:
2.7.1 Provide unit price bid quantities in City bid form format for use in bid documents.
2.7.2 Provide bid sets of contract, technical specifications, plans, and any other
necessary documents in hard copy and digital format.
2.7.3 Attend pre -bid conference and prepare responses to questions and addenda as
necessary.
2.7.4 Research qualifications and references of apparent low bidder(s) and provide a
letter of recommendation for contract award.
2.8 During Construction Phase:
2.8.1 CONSULTANT shall monitor construction schedule.
2.8.2 CONSULTANT will make a minimum of two visits per month to the Project Site
at intervals appropriate to the Phases to (1) become generally familiar with and to
keep CITY informed about the progress and quality of the portion of the Work
completed, and (2) endeavor to guard CITY against defects in Work. However,
CONSULTANT will not be required to make exhaustive or continuous on -site
inspections to check the quality or quantity of the Work.
2.8.3 CONSULTANT will neither have control over or charge of, nor be responsible
for, the construction means, methods, techniques, sequences or procedures, or for
the safety precautions and programs in connection with the Work since these are
solely CONSTRUCTION CONTRACTOR'S rights and responsibilities under the
Contract Documents. CONSULTANT'S efforts will be directed toward providing
for CITY a greater degree of confidence that the completed Work will generally
conform to the Contract Documents.
2.8.4 CONSULTANT will not be responsible for CONSTRUCTION
CONTRACTOR'S failure to perform the Work in accordance with the
requirements of the Contract Documents. CONSULTANT will not have control
Project Agreement for Engineering Services rev 03122014 Page 5
over or charge of and will not be responsible for acts or omissions of
CONSTRUCTION CONTRACTOR, subcontractors, or their agents or
employees, or any other persons or entities performing portions of the Work.
2.8.5 CONSULTANT and CITY have authority to reject Work that does not conform to
the Contract Documents. Whenever CONSULTANT or CITY considers it
necessary or advisable, either CITY or CONSULTANT may require inspection or
testing of the Work whether or not such Work is fabricated, installed or
completed. However, neither this authority of CONSULTANT or CITY, nor a
decision made by either, in good faith, to require or not require an inspection shall
give rise to a duty or responsibility of CONSULTANT or CITY to
CONSTRUCTION CONTRACTOR, subcontractors, material and equipment
suppliers, agents or employees, or other persons or entities performing portions of
the Work.
2.8.6 CONSULTANT will review and approve or take other appropriate action upon
CONSTRUCTION CONTRACTOR'S submittals such as Shop Drawings,
Product Data and Samples, but only for the limited purpose of checking for
conformance with information given and the design concept expressed in the
Contract Documents. CONSULTANT will respond to submittals such as Shop
Drawings, Product Data, and Samples pursuant to the procedures set forth in the
Project specifications. Review of such submittals is not conducted for the purpose
of determining the accuracy and completeness of equipment or systems, all of
which remain the responsibility of CONSTRUCTION CONTRACTOR as
required by the Contract Documents. CONSULTANT'S review of
CONSTRUCTION CONTRACTOR'S submittals shall not relieve
CONSTRUCTION CONTRACTOR of its obligations. CONSULTANT'S review
shall not constitute approval of safety precautions or any construction means,
methods, techniques, sequences or procedures unless otherwise specifically stated
by CONSULTANT. CONSULTANT'S approval of a specific item shall not
indicate approval of an assembly of which the item is a component.
2.8.7 CONSULTANT will, within three work days after receipt of CONSTRUCTION
CONTRACTOR'S Application for Payment review the Application for Payment
and either issue to OWNER and/or the affected utility a Certificate for Payment
for such amount as CONSULTANT determines is properly due, or notify
OWNER, any affected utility, and CONSTRUCTION CONTRACTOR in writing
of CONSULTANT'S reasons for withholding recommendation of approval in
whole or in part.
2.8.8 CONSULTANT'S issuance of a Certificate for Payment will constitute a
representation by CONSULTANT to OWNER, based on CONSULTANT'S
evaluation of the Work and the data comprising the Application for Payment, that
the Work has progressed to the point indicated and that, to the best of
CONSULTANT'S knowledge, information and belief, the quality of the work is
in accordance with the design agreement documents or Construction Contract
Documents. The foregoing representations are subject to an evaluation of the
Project Agreement for Engineering Services rev 03122014 Page 6
Work for conformance with the design agreement documents, to results of
subsequent tests and inspections, to correction of minor deviations from the
design agreement documents prior to completion, and to any specific
qualifications expressed by CONSULTANT. The issuance of a Certificate for
Payment based on the CONSTRUCTION CONTRACTOR'S Application for
Payment will further constitute a representation that CONSTRUCTION
CONTRACTOR is entitled to payment in accordance with the Schedule of
Values. The issuance of Certificate for Payment will not be a representation that
CONSULTANT has (1) made exhaustive or continuous on -site inspections to
check the quality or quantity of the Work, (2) reviewed construction means,
methods, techniques, sequences or procedures, (3) reviewed copies of requisitions
received from Subcontractors and material suppliers and other data requested by
OWNER to substantiate Construction Contractor's right to payment, or (4) made
any examination to ascertain how or for what purpose CONSTRUCTION
CONTRACTOR has used money previously paid on account of the Application
for Payment sum.
2.8.9 CONSULTANT may recommend withholding an approval for Payment in whole
or in part, to the extent reasonably necessary to protect OWNER if, in
CONSULTANT'S opinion, the representations to OWNER required by Section
4.13 cannot be made. If CONSULTANT is unable to recommend approval of
payment in the amount of the Application, CONSULTANT will notify OWNER
and CONSTRUCTION CONTRACTOR as provided in Section 4.12. If OWNER
and CONSULTANT cannot agree on a revised amount, CONSULTANT will
promptly issue a Certificate for Payment for the amount for which
CONSULTANT is able to make such representations to OWNER.
CONSULTANT may also recommend withholding a Payment, because of
subsequently discovered evidence, may modify the whole or a part of a Certificate
for Payment to such extent as may be necessary, in CONSULTANT'S opinion, to
protect OWNER and the affected utility fiom loss for which CONSTRUCTION
CONTRACTOR is responsible, including loss resulting from acts and omissions
described below:
2.8.9.1 defective Work not remedied;
2.8.9.2 third party claims filed or reasonable evidence indicating probable
filing of such claims for which CONSTRUCTION CONTRACTOR is
responsible hereunder unless security acceptable to OWNER and the
affected utility is provided by CONSTRUCTION CONTRACTOR;
2.8.9.3 failure of CONSTRUCTION CONTRACTOR to make payments
properly to the subcontractors and /or material providers; .
2.8.9.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the agreement sum and CONSTRUCTION CONTRACTOR
has failed to provide OWNER and the affected utility adequate
Project Agreement for Engineering Services rev 03122014 Page 7
assurance of its continued performance within a reasonable time after
demand;
2.8.9.5 damage to OWNER or another contractor;
2.8.9.6 reasonable evidence that the Work will not be completed within the
agreement time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
2.8.9.7 persistent failure by CONSTRUCTION CONTRACTOR to carry out
the Work in accordance with the Construction Contract Documents.
2.8.10 When the above reasons for withholding payment are removed, payment will be
made for amounts previously withheld. OWNER shall not be deemed in default
by CONSULTANT by reason of withholding payment as provided herein.
2.8.11 CONSULTANT will prepare Change Orders and Field Work Directives, and,
with concurrence of OWNER, OWNER'S designated representative will have
authority to order minor changes in the Work not involving an adjustment in the
Total Compensation or an extension of the time for construction. Such changes
shall be effected by written order, which CONSTRUCTION CONTRACTOR
shall carry out promptly and record on the as -built plan.
2.8.12 Upon written request of CITY or CONSTRUCTION CONTRACTOR,
CONSULTANT will issue its interpretation of the requirements of the Plans and
Specifications. CONSULTANT'S response to such requests will be made in
writing within any agreed time limits or otherwise with reasonable promptness. If
no agreement is made concerning the time within which interpretations required
by CONSULTANT shall be furnished in compliance with Article IV, then delay
shall not be recognized on account of failure by CONSULTANT to furnish such
interpretations until 15 days after written request is made for CONSULTANT'S
interpretation.
2.8.13 Interpretations of CONSULTANT will be consistent with the intent of and
reasonably inferable fiom the Construction Contract Documents and will be in
writing or in the form of drawings.
2.8.14 CONSULTANT will advise and consult with CITY. CITY'S instructions to
CONSTRUCTION CONTRACTOR may be issued through CONSULTANT, but
CITY reserves the right to issue instructions directly to CONSTRUCTION
CONTRACTOR through inspectors or other designated CITY representatives.
2.8.15 CONSULTANT and CITY will conduct observations to determine the date of
substantial completion of the Work. CONSULTANT shall provide to CITY a
written recommendation of consideration of substantial completion of the Project.
2.8.16 CONSULTANT and CITY will conduct observations to determine the date of
final completion. CONSULTANT will receive and forward to CITY, for CITY'S
Project Agreement for Engineering Services rev 03122014 Page 8
review and records, written warranties and related documents required by the
Construction Contract Documents and assembled by CONSTRUCTION
CONTRACTOR, and will issue a final Approval for Payment upon compliance
with the requirements of the Construction Contract Documents. Such final
Approval will be accompanied by a signed and sealed statement from the
CONSULTANT'S Engineer of Record that certifies to CITY that the project was
constructed in accordance with the approved plans and specifications.
2.8.17 CONSULTANT shall prepare record drawings from information submitted by
CONSTRUCTION CONTRACTOR and from CONSULTANT'S own
observations in accordance with City standards. CONSULTANT shall provide
record drawings in hard copy, .pdf, and .dwg formats to CITY.
3.1 Basic Services
3.1.1 Compensation for all Services included in this Agreement will be on a time and
expense not -to- exceed basis in accordance with the negotiated, approved schedule
of billing rates as set forth in Attachment 3. Not -to- exceed compensation
amounts, to the extent they have been negotiated shall be reflected in Attachment
3. A Proposal including a not -to- exceed cost will be provided by
CONSULTANT along with a Scope of Services for each Project (Attachments 1
and 2). The amount to be paid to CONSULTANT, including authorized
adjustments, is the total amount payable by OWNER to CONSULTANT for
performance of the Services for the Project under this Agreement. It is agreed
and understood that such amount will constitute full compensation to
CONSULTANT for Services included in the Scope of Services and shall meet all
requirements of CITY'S design guidelines applicable to the Project. Unless and
until CITY makes further appropriations for any Services not included in the
Scope of Services of this Agreement, the obligation of CITY to CONSULTANT
for Compensation in connection with this Agreement cannot and will not exceed
the sum described in this Section without further amendment to this Agreement.
3.1.2 No billing rate changes from those approved as Attachment 3 of this Agreement
shall be made during the term of this Agreement without the prior written
approval of CITY.
3.1.3 CONSULTANT shall submit monthly invoices to CITY describing the Services
performed the preceding month. CONSULTANT'S invoices shall include the
name of the person who performed the Service, a brief description of the Service
performed and the Phase of the Project to which the Service relates, the date(s)
the Service was performed, the number of hours spent on all Services billed on an
hourly basis, and a description of any subconsultant fees and /or reimbursable
expenditures.
Project Agreement for Engineering Services rev 03122014 Page 9
3.1.4 CITY shall reimburse CONSULTANT only for those costs or expenses
specifically approved in this Agreement, or specifically approved in advance by
CITY. Unless otherwise approved, such costs shall be limited and include
nothing more than the following costs incurred by CONSULTANT:
3.1.4.1 Approved reproduction charges,
3.1.4.2 Actual costs of subconsultant(s) for performance of any of the Services
that CONSULTANT agrees to provide pursuant to this Agreement,
which have been approved in advance by CITY and awarded in
accordance with this Agreement.
3.1.4.3 Actual costs and /or other costs and /or payments specifically authorized
in advance by the CITY in writing and incurred by CONSULTANT in
the performance of this Agreement.
3.1.5 CONSULTANT shall complete the Project in accordance with the following
phases. For the purpose of establishing portions of compensation for separate
phases, more particularly described in the Scope of Services, Attachment 2 shall
apply.
Preliminary Engineering Report
30% Design
60% Design
90% Design
Bid Documents and Services
Construction Phase Services
Project Close Out and Final Payment
3.1.6 CONSULTANT shall, within 10 days following receipt of Compensation from
OWNER, pay all bills for Services performed and furnished hereunder by
subconsultant(s) of CONSULTANT in connection with the Project and the
performance of services and shall, if requested, provide OWNER with evidence
of such payment. CONSULTANT'S failure to make payments within such time
shall constitute a material breach of this Agreement unless CONSULTANT is
able to demonstrate to OWNER bona fide disputes associated with the Services of
the unpaid subconsultant and its services. CONSULTANT shall include a
provision in each of its sub agreements imposing the same payment obligations on
its subconsultants as are applicable to CONSULTANT hereunder, and if OWNER
so requests, shall provide evidence of such payments by CONSULTANT to
OWNER. If CONSULTANT has failed to make payment promptly to the
subconsultant for undisputed Services for which OWNER has made payment to
CONSULTANT, OWNER shall be entitled to withhold future payment to
CONSULTANT to the extent remaining unpaid by CONSULTANT necessary to
protect OWNER.
Project Agreement for Engineering Services rev 03122014 Page 10
3.1.7 CONSULTANT warrants that title to all deliverables produced in the
performance of Services covered by an Application for Compensation will pass to
OWNER no later than the time of payment. CONSULTANT further warrants that
upon submittal of an Application for Compensation, all Services for which
Applications for Compensation have been previously issued and payments
received from OWNER shall, to the best of CONSULTANT'S knowledge,
information and belief be free and clear of liens, claims, security interests or
encumbrance in favor of CONSULTANT, or other persons or entities under
contract with CONSULTANT making a claim by reason of having provided labor
or services relating to CONSULTANT'S Services. CONSULTANT SHALL
INDEMNIFY AND HOLD OWNER HARMLESS FROM ANY LIENS,
CLAIMS, SECURITY INTEREST OR ENCUMBRANCES FILED BY
ANYONE CLAIMING BY, THROUGH OR UNDER THE ITEMS COVERED
BY PAYMENTS MADE BY OWNER TO CONSULTANT.
3.2 Additional Services
3.2.1 CONSULTANT shall not receive any compensation for additional Services
without prior written authorization of CITY. Compensation for duly authorized
additional Services shall be paid in accordance with the approved schedule of
billing rates as set forth in Attachment 3.
3.2.2 Examples of additional Services (not all inclusive)
3.2.2.1 Assistance to CITY as an expert witness in any litigation with third
parties arising from the development of construction of a Project
including the preparation of engineering data and reports.
3.2.2.2 Preparation of plats and field notes for acquisition of property.
3.2.2.3 Preparation of applications and supporting documents for governmental
grants, loans, or advances in connection with a Project; preparation of
review of environmental assessment and impact statements; review and
evaluation of the effect on the design requirements of a Project of any
such statements and documents prepared by others; and assistance in
obtaining approval of authorities having jurisdiction over the
anticipated enviromnental impact of a Project.
3.2.2.4 Making revisions in drawings, specifications, or other documents when
such revisions are inconsistent with written approvals or instructions
previously given, are required by the enactment or revision of codes,
laws, or regulations subsequent to the preparation of such documents or
are due to other causes not solely within the control of
CONSULTANT.
3.2.2.5 Making revisions to drawings or specifications occasioned by
acceptance of substitutions proposed by CONSTRUCTION
CONTRACTOR; and Services after the award of each contract in
Project Agreement for Engineering Services rev 03122014 Page 11
evaluating and determining the acceptability of an unreasonable or
excessive number of substitutions proposed by CONSTRUCTION
CONTRACTOR.
3.2.2.6 Preparing drawings, specifications, and supporting data and providing
other Services in connection with change order requests to the extent
that the adjustment in the basic compensation resulting from the
adjusted construction cost is not commensurate with the Services
required of CONSULTANT, provided such change order requests are
required by causes not solely within the control of CONSULTANT; or
in connection with change orders requiring significant engineering
effort to compute and document the Work effort reflected by the
Change Order.
3.2.2.7 Investigations, surveys, valuations, inventories, or detailed appraisals of
facilities, construction and /or services not required by Project scope.
3.2.2.8 Investigations, surveys, audit, or inventories required in connection
with construction performed by CITY.
3.2.2.9 Additional Services during construction made necessary by:
3.2.2.9.1 Work damaged by fire or other cause during construction.
3.2.2.9.2 A significant amount of defective or neglected work of
CONSTRUCTION CONTRACTOR.
3.2.2.9.3 Failure of performance of CONSTRUCTION
CONTRACTOR.
3.2.2.9.4 Acceleration of the progress schedule required by CITY
involving Services beyond normal working hours.
3.2.2.9.5 Default by CONSTRUCTION CONTRACTOR.
3.2.2.10 Providing extensive assistance in the use of any equipment or system
such as initial start -up or testing, adjusting and balancing, preparation
of operation and maintenance manuals, training personnel for operation
and maintenance, and consultation during operation.
3.2.2.11 Providing Services relative to future facilities, systems, and equipment
which are not intended to be constructed during the Construction Phase.
3.2.2.12 Services after completion of the Construction Phase, such as
inspections during any guarantee period and reporting observed
deficiencies under guarantee called for in any contract for a Project.
Project Agreement for Engineering Services rev 03122014 Page 12
3.2.2.13 Providing Services of geotechnical engineering firm to perform test
borings and other soil or foundation investigations and related analysis
not included in original Scope of Services for a Project.
3.2.2.14 Additional copies of Construction Contract Documents, review
documents, bidding documents, reports, and or drawings over the
number specified in the original Scope of Services for a Project.
3.2.2.15 Preparation of all documents dealing with 404 permits and railroad
agreements.
3.2.2.16 Providing photographs, renderings, or models for CITY use.
3.2.2.17 Providing aerial mapping Services.
3.2.2.18 Providing consulting engineering Services not related to a particular
design or construction Project.
3.3 All Applications for Compensation shall be submitted through Engineer's office.
4.1 Compensation may be made to CONSULTANT as appropriately indicated on monthly
Applications for Compensation prepared based on hourly rates, not to exceed amounts
estimated for each phase, as described in Article 2 and Attachments 1 and 2 hereof.
4.2 Project Close Out and Final Payment —
4.2.1 CONSULTANT shall not be entitled to final payment unless and until it submits
to OWNER its affidavit that the invoices for services, and other liabilities
connected with the services for which OWNER, or OWNER'S property, might be
responsible have been fully paid or otherwise satisfied or will be paid from final
payment; releases and waivers of liens from all CONSULTANT'S subconsultants
and of any and all other parties required by OWNER that are either unconditional
or conditional on receipt of final payment; certificates of insurance showing
continuation of required insurance coverage; such other documents as OWNER
may request; and consent of surety to final payment.
4.2.2 Final Compensation — The final compensation to be made by CITY to
CONSULTANT will be payable upon submission of the "Record Drawings ".
CONSULTANT agrees to submit "Record Drawings: in print media, electronic
format (.pdf and .dwg formats) and final billing within 45 days of final acceptance
of construction. Additionally, CONSULTANT agrees to submit a statement of
release with the final billing notifying CITY that there is no further compensation
owed to CONSULTANT by CITY beyond the final bill. Final billing shall
indicate "Final Bill — no additional compensation is due to CONSULTANT ".
Project Agreement for Engineering Services rev 03122014 Page 13
4.3 OWNER may withhold compensation to such extent as may be necessary, in OWNER'S
opinion, to protect OWNER from damage or loss for which CONSULTANT is
responsible, because of,
4.3.1 delays in the performance of CONSULTANT'S services;
4.3.2 third party claims filed or reasonable evidence indicating probable filing of such
claims unless security acceptable to OWNER is provided by CONSULTANT;
4.3.3 failure of CONSULTANT to make payments properly to subconsultants or
vendors for labor, materials or equipment;
4.3.4 reasonable evidence that CONSULTANT'S work cannot be completed for the
amount unpaid under this Agreement;
4.3.5 damage to OWNER or CONSTRUCTION CONTRACTOR; or
4.3.6 persistent failure by CONSULTANT to carry out the performance of its Services
in accordance with this Agreement.
4.4 When the above reasons for withholding are removed or remedied by CONSULTANT,
compensation of the amount withheld will be made within a reasonable time. OWNER
shall not be deemed in default by reason of withholding compensation as provided for in
this Article.
4.5 In the event of any dispute(s) between the parties regarding the amount properly payable
for any Phase or as final Compensation, or regarding any amount that may be withheld by
OWNER, CONSULTANT shall be required to make a claim pursuant to and in
accordance with the terms of this Agreement and follow the procedures provided herein
for the resolution of such dispute. In the event CONSULTANT does not initiate and
follow the claims procedures provided in this Agreement in a timely manner and as
required by the terms thereof, any such claim shall be waived.
4.6 OWNER shall make final compensation for all sums due CONSULTANT not more than
30 days after CONSULTANT'S final Application for Compensation.
4.7 Acceptance of final compensation by CONSULTANT shall constitute a waiver of claims
except those previously made in writing and identified by CONSULTANT as unsettled at
the time of final Application for Compensation.
4.8 CONSULTANT agrees to maintain adequate books, payrolls and records satisfactory to
OWNER and all applicable utility providers in connection with any and all Services
performed hereunder. CONSULTANT agrees to retain all such books, payrolls and
records (including data stored in computer) for a period of not less than four years after
completion of Work. At all reasonable times, OWNER and all applicable utility providers
and their duly authorized representatives shall have access to all personnel of
CONSULTANT and all such books, payrolls and records, and shall have the right to audit
same.
5.1 Prior to commencement, CONSULTANT shall provide CITY with a schedule of Project
Design Phases, Attachment 2.
5.2 Time is of the essence of this Agreement. CONSULTANT shall perform and complete its
obligations for the various Phases of a Project under Section 4, Scope of Services, of this
Agreement in a prompt and continuous manner so as to not delay the development of the
design Services and so as to not delay the construction of the work for the Project in
accordance with the schedules approved by CITY with CONSTRUCTION
CONTRACTOR. Upon review of phase Services, if corrections, modifications,
alterations, or additions are required of CONSULTANT, these items shall be completed
by CONSULTANT before that Phase is approved.
5.3 CONSULTANT shall not proceed with the next appropriate Phase of Services without
written authorization from the Engineer. CITY may elect to discontinue
CONSULTANT'S Services at the end of any Phase for any reason. Notwithstanding any
other provisions of this Agreement, if circumstance dictates, the Engineer may make
adjustments to the scope of CONSULTANT'S obligations at any time to achieve the
required design.
5.4 CONSULTANT shall not be liable or responsible for any delays due to strikes, riots, acts
of God, national emergency, acts of the public enemy, governmental restrictions, laws or
regulations, or any other causes beyond CONSULTANT'S reasonable control. Within 21
days from the occurrence of any event for which time for performance by
CONSULTANT will be significantly extended under this provision, CONSULTANT
shall give written notice thereof to CITY stating the reason for such extension and the
actual or estimated time thereof. If CITY determines that CONSULTANT is responsible
for the need for extended time, CITY shall have the right to make a Claim as provided in
this Agreement.
5.5 Term of Agreement shall be as follows:
5.5.1 This Agreement shall become effective upon and shall remain in
effect until satisfactory completion of the Project unless terminated as provided
for in this Agreement.
ARTICLE 6: COORDINATION WITH CITY
6.1 CONSULTANT shall hold periodic conferences with the Engineer or his or her
representatives to the end that the Project as developed shall have the full benefit of
CITY'S experience and knowledge of existing needs and facilities, and be consistent with.
its current policies and standards. To assist CONSULTANT in this coordination, CITY
shall make available for CONSULTANT'S use in planning and designing the Project all
existing plans, maps, statistics, computations and other data in its possession relative to
existing facilities and to this particular Project, at no cost to CONSULTANT. However,
any and all such information shall remain the property of CITY and shall be returned by
Project Agreement for Engineering Services rev 03122014 Page 15
CONSULTANT upon termination or completion of the Project or if instructed to do so by
the Engineer.
6.2 The Engineer will act on behalf of CITY with respect to the Services to be performed
under this Agreement. The Engineer shall have complete authority to transmit
instructions, receive information, interpret and define CITY'S policies and decisions with
respect to materials, equipment, elements and systems pertinent to CONSULTANT'S
services.
6.3 CITY will give prompt written notice to CONSULTANT whenever CITY observes or
otherwise become aware of any defect in CONSULTANT'S Services, in the work of
CONSTRUCTION CONTRACTOR, or any development that affects the scope or timing
of CONSULTANT'S Services.
6.4 All appraisals, notices, and permits shall be furnished by CONSULTANT under the Scope
of Services unless otherwise assigned to CITY in the Scope of Services, Approvals and
permits assigned to CITY shall be obtained from all governmental authorities having
jurisdiction over the Project and such approvals and consents from others as may be
necessary for the completion of the Project. CONSULTANT will provide CITY
reasonable assistance in connection with such approvals and permits such as the
furnishing of data compiled by CONSULTANT pursuant to other provisions of this
Agreement, but CONSULTANT shall not be obligated to develop additional data, prepare
extensive reports or appear at hearings or the like unless compensated therefore under
other provisions of this Agreement.
ARTICLE 7: REVISIONS TO DRAWINGS AND SPECIFICATIONS
7.1 CONSULTANT shall make without expense to CITY such revisions to the drawings,
reports or other documents as may be required to meet the needs of CITY which are
within the Scope of Services, but after the approval of drawings, reports or other
documents and specifications by CITY, any revisions, additions, or other modifications
made at CITY'S request which involve extra services and expenses to CONSULTANT
shall be at additional compensation to CONSULTANT for such additional Services and
expenses in accordance with Article 3 herein.
Project Agreement for Engineering Services rev 03122014 Page 16
8.1 All previously owned documents, including the original drawings, estimates,
specifications, and all other documents and data by CONSULTANT, will remain the
property of CONSULTANT as instruments of service. However, CONSULTANT
understands and agrees that CITY shall have free access to all such information with the
right to make and retain copies of previously owned drawings, estimates, specifications
and all other documents and data. Any reuse without specific written verification or
adaptation by CONSULTANT will be at CITY'S sole risk and without liability or legal
exposure to CONSULTANT.
8.2 All completed documents submitted by CONSULTANT for final approval or issuance of
a permit shall bear the seal with signature and date adjacent thereto of a registered
professional engineer licensed to practice in the State of Texas.
8.3 CONSULTANT acknowledges and agrees that upon payment, CITY shall own
exclusively any and all information in whatsoever form and character produced and /or
maintained in accordance with, pursuant to, or as a result of this Agreement and shall be
used as CITY desires and documents, including the original drawings, estimates,
specifications and all other documents and data shall be delivered to CITY at no
additional cost to CITY upon request or termination or completion of this Agreement
without restriction on future use. However, any reuse without specific written verification
or adaptation by CONSULTANT will be at CITY'S sole risk and without liability to
CONSULTANT.
8.4 CONSULTANT agrees and covenants to protect any and all proprietary rights of CITY in
any materials provided to CONSULTANT. Such protection of proprietary rights by
CONSULTANT shall include, but not be limited to, the inclusion in any copy intended for
publication of copyright mark reserving all rights to CITY. Additionally, any materials
provided to CONSULTANT by CITY shall not be released to any third party without the
written consent of CITY and shall be returned intact to CITY upon termination or
completion of this Agreement or if instructed to do so by the Engineer.
Project Agreement for Engineering Services rev 03122014 Page 17
CLAIM THAT ■ a R WORIC PROVIDED ■ THIS
SECRET, AGREEMENT CONSTITUTE AN INFRINGEMENT OF ANY PATENT, TRADE
■ . ■ COPYRIGHT , ■ OTHER INTELLECTUAL
PROPERTY RIGHTS.
8.6 CONSULTANT may make copies of any and all documents and items for its files.
CONSULTANT shall have no liability for changes made to or use of the drawings,
specifications and other documents by other engineers, or other persons, subsequent to the
completion of the Project. CONSULTANT shall appropriately mark all changes or
modifications on all drawings, specifications and other documents by other engineers or
other persons, including electronic copies, subsequent to the completion of the Project.
8.7 Copies of documents that may be relied upon by CITY are limited to the printed copies
(also known as hard copies) and .pdf- format electronic versions that are sealed and signed
by CONSULTANT. Files in editable electronic media format of text, data, graphics, or
other types (such as .dwg) that are furnished by CONSULTANT to CITY are only for
convenience of CITY or any utility. Any conclusion or information obtained or derived
from such electronic files will be at the user's sole risk. Any reuse without specific written
verification or adaptation by CONSULTANT will be at CITY'S sole risk and without
liability to CONSULTANT.
8.8 Notwithstanding anything to the contrary contained herein, all previously owned
intellectual property of CONSULTANT, unless expressly purchased by CITY, including
but not limited to any computer software (object code and source code), tools, systems,
equipment or other information used by CONSULTANT or its suppliers in the course of
delivering the Services hereunder, and any know -how, methodologies, or processes used
by CONSULTANT to provide the services or protect deliverables to CITY, including
without limitation, all copyrights, trademarks, patents, trade secrets, and any other
proprietary rights inherent therein and appurtenant thereto shall remain the sole and
exclusive property of CONSULTANT or its suppliers.
9.1 Right of Either Party to Terminate for Default
9.1.1 This Agreement may be terminated by either party for substantial failure by the
other party to perform (through no fault of the terminating party) in accordance
with the terms of this Agreement and a failure to cure as provided in this Article
9.
9.1.2 The party not in default must issue a signed, written notice of termination (citing
this paragraph) to the other party declaring the other party to be in default and
stating the reason(s) why they are in default. Upon receipt of such written notice
of default, the party in receipt shall have a period of ten days to cure any failure to
perform under this Agreement. Upon the completion of such 10 -day period
commencing upon receipt of notice of termination, if such party has not cured any
Project Agreement for Engineering Services rev 03122014 Page 18
failure to perform, such termination shall become effective without further written
notice.
9.2 Right of CITY to Terminate
9.2.1 CITY reserves the right to terminate this Agreement for reasons other than
substantial failure by CONSULTANT to perform by issuing a signed, written
notice of termination (citing this paragraph) which shall take effect on the
twentieth day following receipt of said notice or upon the scheduled completion
date of the performance Phase in which CONSULTANT is then currently
working, whichever effective termination date occurs first.
9.3 Right of CITY to Suspend Giving Rise to Right of CONSULTANT to Terminate
9.3.1 CITY reserves the right to suspend this Agreement at the end of any Phase for the
convenience of CITY by issuing a signed, written notice of suspension (citing this
paragraph) which shall outline the reasons for the suspension and the expected
duration of the suspension, but such expected duration shall in no way guarantee
what the total number of days of suspension will occur. Such suspension shall
take effect immediately upon receipt of said notice of suspension by
CONSULTANT.
9.3.1.1 CONSULTANT is hereby given the right to terminate this Agreement
in the event such suspension extends for a period in excess of 120 days.
CONSULTANT may exercise this right to terminate by issuing a
signed, written notice of termination (citing this paragraph) to CITY
after the expiration of 120 days from the effective date of the
suspension. Termination (under this paragraph) shall become effective
immediately upon receipt of said written notice by CITY.
9.4 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Termination
9.4.1 Upon receipt of a notice of termination and prior to the effective date of
termination, unless the notice otherwise directs or CONSULTANT immediately
takes action to cure a failure to perform under the cure period set out in this
Article. CONSULTANT shall immediately begin the phase -out and the
discontinuance of all services in connection with the performance of this
Agreement and shall proceed to promptly cancel all existing orders and contracts
insofar as such orders and contracts are chargeable to this Agreement. Within 30
days after receipt of such notice of termination (unless CONSULTANT has
successfully cured a failure to perform) CONSULTANT shall submit a statement
showing in detail the Services performed under this Agreement prior to the
effective date of termination. CITY shall have the option to grant an extension to
the time period for submittal of such statement.
9.4.2 Copies of all completed or partially completed specifications and all
reproductions of all completed or partially completed designs, plans and
attachments prepared under this Agreement prior to the effective date of
Project Agreement for Engineering Services rev 03122014 Page 19
termination shall be delivered to CITY, in the form requested by CITY as a
precondition to final payment. These documents shall be subject to the restrictions
and conditions set forth in Article IX above.
9.4.3 Upon the above conditions being met, CITY shall promptly pay CONSULTANT
that proportion of the prescribed Compensation which the Services actually
performed under this Agreement bear to the total Services called for under this
Agreement, less previous payments of the Compensation.
9.4.4 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of CONSULTANT to comply with the
submittal of the statement and documents as required above shall constitute a
waiver by CONSULTANT of any and all rights or claims for compensation for
services performed under this Agreement by CONSULTANT.
9.4.5 Failure of CONSULTANT to comply with the submittal of the statement and
documents as required above shall constitute a waiver by CONSULTANT of any
and all rights or claims to collect monies that CONSULTANT may otherwise be
entitled to for services performed under this Agreement.
9.5 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Suspension
9.5.1 Upon receipt of written notice of suspension, which date shall also be the
effective date of the suspension, CONSULTANT shall, unless the notice
otherwise directs, immediately begin to phase -out and discontinue all services in
connection with the performance of this Agreement and shall proceed to promptly
suspend all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement.
9.5.2 CONSULTANT shall prepare a statement showing in detail the Services
performed under this Agreement prior to the effective date of suspension.
9.5.3 Copies of all completed or partially completed designs, plans, and specifications
prepared under this Agreement prior to the effective date of suspension shall be
prepared for possible delivery to CITY but shall be retained by CONSULTANT
until such time as CONSULTANT may exercise the right to terminate.
9.5.4 In the event that CONSULTANT exercises the right to terminate 120 days after
the effective suspension date, within 30 days after receipt by CITY of
CONSULTANT'S notice of termination, CONSULTANT shall promptly cancel
all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement and shall submit the above referenced statement
showing in detail the services performed under this Agreement prior to the
effective date of suspension.
9.5.5 Any documents prepared in association with this Agreement shall be delivered to
CITY as a precondition to final payment.
Project Agreement for Engineering Services rev 03122014 Page 20
9.5.6 Upon the above conditions being met, CITY shall pay CONSULTANT that
proportion of the prescribed Compensation which the Services actually performed
under this Agreement bear to the total Services called for under this Agreement,
less previous payments of Compensation.
9.5.7 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of Consultant to substantially comply
with the submittal of the statements and documents as required herein shall
constitute a waiver by CONSULTANT of any portion of the Compensation for
which CONSULTANT did not supply such necessary statements and/or
documents.
10.1 CONSULTANT warrants that it has not employed or retained any company or person
other than a bona fide employee working solely for CONSULTANT to solicit or secure
this Agreement, and that it has not, for the purpose of soliciting or securing this
Agreement, paid or agreed to pay any company or person, commission, percentage,
brokerage fee, gift, or any other consideration, contingent upon or resulting from the
award or making of this Agreement. For breach of this warranty, CITY shall have the
right to terminate this Agreement under the provisions of Article 9 above.
ARTICLE 11: ASSSIGNMENT OR TRANSFER OF INTEREST
11.1 CONSULTANT shall not assignor transfer its interest in this Agreement without the prior
written consent of CITY.
ARTICLE 12: INSURANCE REQUIREMENTS
12.1 Prior to the commencement of any Services under this Agreement, CONSULTANT shall
furnish copies of all required endorsements and an original completed Certificates) of
Insurance to CITY'S Engineering Department, which shall be clearly identified with the
name of the Project in the Description of Operations block of the Certificate. The original
Certificate(s) shall be completed by an agent and signed by a person authorized by that
insurer to bind coverage on its behalf. CITY will not accept Memorandum of Insurance or
Binders as proof of insurance. The original certificate(s) or form must have the agent's
original signature, including the signer's company affiliation, title and phone number, and
be mailed, with copies of all applicable endorsements, directly from the insurer's
authorized representative to CITY. CITY shall have no duty to pay or perform under this
Agreement until such certificate and endorsements have been received and approved by
CITY'S Engineering Department. No officer or employee other than CITY'S Risk
Manager shall have authority to waive this requirement.
Project Agreement for Engineering Services rev 03122014 Page 21
circumstances surrounding this contract. In no instance will CITY allow modification
whereupon CITY may incur increased risk.
12.3 CONSULTANT'S financial integrity is of interest to CITY. Therefore, subject to
CONSULTANT'S right to maintain reasonable deductibles in such amounts as are
approved by CITY, CONSULTANT shall obtain and maintain in full force and effect for
the duration of this Agreement, and any extension hereof, at CONSULTANT'S sole
expense, insurance coverage written on an occurrence or claims made basis, as
appropriate, by companies authorized and approved to do business in the State of Texas
and with an A.M. Best's rating of no less than A- (VII), in the following types and for an
amount not less than the amount listed:
INSURANCE REQUIREMENTS
Worker's Compensation*
Employer's Liability
Commercial General (Public) Liability
insurance to include coverage for the
following:
a. Premises Operations
b. Independent Contractors **
c. Products /Completed Operations
d. Personal Injury
e. Contractual Liability
Business Automobile Liability
a. Owned/Leased Vehicles
b. Non -owned Vehicles
c. Hired Vehicles
Statutory
$1,000,000,000 /$1,000,000,000 /$1,000,000,000
For Bodily Injury and Property Damage of
$1,000,000 per occurrence.
$2,000,000 General Aggregate, or its equivalent
in Umbrella or Excess Liability Coverage
Combined Single Limit for Bodily Injury and
property Damage of $1,000,000 per occurrence
Professional Liability (Claims Made Form) $1,000,000 per claim to pay on behalf of the
insured all sums, which the insured shall
become legally obligated to pay as damages to
the extent caused by any negligent act, error, or
omission in the performance of professional
services.
*Alternate Plans must be approved by CITY'S Risk Manager
* *If applicable
Project Agreement for Engineering Services rev 03122014 Page 22
policies). CONSULTANT shall attempt to comply with any such requests, subject to the
policy terms and conditions, and shall submit a copy of the replacement certificate of
insurance to CITY at the address provided below within 10 days of the requested change,
in the event the respective insurance companies approve the requested change(s).
CONSULTANT shall pay any costs incurred resulting from said changes.
City of Schertz
Attn: City Engineer
10 Commercial Place
Schertz, TX 78154
12.5 CONSULTANT agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
12.5.1 Name CITY and its officers, officials, employees, and elected representatives as
additional insured's by endorsement, as respects operations and activities of, or on
behalf of, the named insured performed under contract with CITY, with the
exception of the workers' compensation and professional liability policies;
12.5.2 Provide for an endorsement that the "other insurance" clause shall not apply to the
CITY where CITY is an additional insured shown on the policy if such
endorsement is permitted by law and regulations;
12.5.3 Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of CITY; and
12.5.4 Provide 30 calendar days advance written notice directly to CITY of any
suspension, cancellation or non - renewal or material change in coverage, and not
less than 10 calendar days advance written notice for nonpayment of premium.
12.6 Within five calendar days after a. suspension, cancellation or non - renewal of coverage,
CONSULTANT shall provide a replacement Certificate of Insurance and applicable
endorsements to CITY. CITY shall have the option to suspend CONSULTANT'S
performance should there be a lapse in coverage at any time during this Agreement.
Failure to provide and to maintain the required insurance shall constitute a material breach
of this Agreement.
12.7 If CONSULTANT fails to maintain the aforementioned insurance, or fails to secure and
maintain the aforementioned endorsements, CITY may obtain such insurance, and deduct
and retain the amount of the premiums for such insurance from any sums due under the
agreement; however, procuring of said insurance by CITY is an alternative to other
remedies CITY may have and is not the exclusive remedy for failure of CONSULTANT
to maintain said insurance or secure such endorsement. In addition to any other remedies
CITY may have upon CONSULTANT'S failure to provide and maintain any insurance or
policy endorsements to the extent and within the time herein required, CITY shall have
the right to order CONSULTANT to stop performing services hereunder and /or withhold
any payment(s) which become due to CONSULTANT hereunder until CONSULTANT
demonstrates compliance with the requirements hereof.
Project Agreement for Engineering Services rev 03122014 Page 23
12.8 Nothing herein contained shall be construed as limiting in any way the extent to which
CONSULTANT may be held responsible for payments of damages to persons or property
resulting from CONSULTANT'S or its subconsultant's performance of the Services
covered under this Agreement.
12.9 It is agreed that CONSULTANT'S insurance shall be deemed primary with respect to any
insurance or self insurance carried by CITY for liability arising out of operations under
this Agreement.
12.10 It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this Agreement as respects additional insured's.
F 1 1
13.2 CONSULTANT shall advise CITY in writing within 24 hours of any claim or demand
against CITY or CONSULTANT, known to CONSULTANT, related to or arising out of
CONSULTANT'S activities under this Agreement.
Project Agreement for Engineering Services rev 03122014 Page 24
13.3 The provisions of Article 13 are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or
entity.
13.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
14.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of
right, adjustment or interpretation of this Agreement's terms, payment of money, and
extension of time or other relief with respect to the terms of this Agreement. The term
"Claim" also includes other disputes and matters in question between OWNER and
CONSULTANT arising out of or relating to this Agreement. Claims must be initiated by
written notice. Every Claim of CONSULTANT, whether for additional Compensation,
additional time, or other relief, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind
CONSULTANT by signature) of CONSULTANT, verifying the truth and accuracy of the
Claim. The responsibility to substantiate Claims shall rest with the party making the
Claim.
14.2 Time Limit on Claims. Claims by CONSULTANT or by OWNER must be initiated
within 30 calendar days after occurrence of the event giving rise to such Claim. Claims by
CONSULTANT must be initiated by written notice to OWNER. Claims by the OWNER
must be initiated by written notice to CONSULTANT.
14.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise
agreed in writing, CONSULTANT shall proceed diligently with performance of this
Agreement and OWNER shall continue to make payments in accordance with this
Agreement.
14.4 Claims for Additional Time. If CONSULTANT wishes to make Claim for an increase in
the time for performance, written notice as provided in this Article 14 shall be given.
CONSULTANT'S Claim shall include an estimate of probable effect of delay on progress
of the Work. In the case of a continuing delay only one Claim is necessary.
14.5 Claims for Consequential Damages. Except as otherwise provided in this Agreement, in
calculating the amount of any Claim or any measure of damages for breach of contract
(such provision to survive any termination following such breach), the following
standards will apply both to claims by CONSULTANT and to claims by OWNER:
14.5.1 No consequential damages will be allowed.
Project Agreement for Engineering Services rev 03122014 Page 25
14.5.2 Damages are limited to extra costs specifically shown to have been directly
caused by a proven wrong for which the other party is claimed to be responsible.
14.5.3 No profit will be allowed on any damage claim.
14.6 No Waiver of Governmental I
BE CONSTRUED TO WAIVE OWNER'S GOVERNMENTAL IMMUNITY
FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE
EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE
15.1 If for any reason, any one or more paragraphs of this Agreement are held invalid or
unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the
remaining paragraphs of this Agreement but shall be confined. in its effect to the specific
section, sentences, clauses or parts of this Agreement held invalid or unenforceable, and
the invalidity or unenforceability of any section, sentence, clause or parts of this
Agreement in any one or more instance shall not affect or prejudice in any way the
validity of this Agreement in any other instance.
ARTICLE 16: ESTIMATES OF COST
16.1 Since CONSULTANT has no control over the cost of labor, materials, or equipment or
over CONSTRUCTION CONTRACTOR'S methods of determining prices, or over
competitive bidding or market conditions, CONSULTANT'S opinions of probable Project
Cost or Construction Cost provided for herein are to be made on the basis of
CONSULTANT'S experience and qualifications and represent CONSULTANT'S best
judgment as a design professional familiar with the construction industry but
CONSULTANT cannot and does not guarantee that bids or the construction cost will not
vary from opinions of probable Cost prepared by CONSULTANT.
ARTICLE 17: INTEREST IN CITY CONTRACTS PROHIBITED
17.1 No officer or employee of CITY shall have a financial interest, directly or indirectly, in
any contract with CITY, or shall be financially interested, directly or indirectly, in the sale
to CITY of any land, materials, supplies or service, except on behalf of CITY as an officer
or employee. This prohibition extends to other CITY boards and commissions, which are
more than purely advisory. The prohibition also applies to subcontracts on CITY projects.
17.2 CONSULTANT acknowledges that it is informed that the Charter of CITY prohibits a
CITY officer or employee, as those terms are defined in the Ethics Code, from having a
financial interest in any contract with CITY or any CITY agency.
17.3 CONSULTANT warrants and certifies, and this Agreement is made in reliance thereon,
that it, its officers, employees and agents are neither officers nor employees of CITY.
CONSULTANT further warrants and certifies that it has tendered to CITY a
Discretionary Contracts Disclosure Statement.
18.1 All consultants must disclose if it is associated in any manner with a CITY official or
employee in a business venture or business dealings. To be "associated" in a business
venture or business dealings includes being in a partnership or joint venture with the
officer or employee, having a contract with the officer or employee, being joint owners of
a business, owning at least 10% of the stock in a corporation in which a CITY officer or
employee also owns at least 10 %, or having an established business relationship as client
or customer.
19.1 Services provided by CONSULTANT under this Agreement will be performed in a
manner consistent with that degree of care and skill ordinarily exercised by members of
the same profession currently practicing under similar circumstances.
19.2 CONSULTANT shall be represented by a registered professional engineer licensed to
practice in the State of Texas at meetings of any official nature concerning the Project,
including but not limited to scope meetings, review meetings, pre -bid meetings, and
preconstruction meetings.
19.3 The Texas Board of Professional Engineers, 1917 IH -35 South, Austin, Texas 78741,
(512) 440 -7723 has jurisdiction over individuals licensed under Title 22 of the Texas
Administrative Code.
19.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents, or
subcontractors for the accuracy and competency of their designs, work, drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
ARTICLE 20: RIGHT OF REVIEW AND AUDIT
20.1 CONSULTANT agrees that CITY may review any and all of the work performed by
CONSULTANT UNDER THIS Agreement. CITY is granted the right to audit, at
CITY'S election, all of CONSULTANT'S records and billings related to performance of
this Agreement. CONSULTANT agrees to retain such records for a minimum of four
years following completion of this Agreement. Any payment, settlement, satisfaction, or
release provided under this Agreement shall be subject to CITY'S rights as may be
disclosed by such audit.
ARTICLE 21: ENTIRE AGREEMENT
21.1 This Agreement, together with Attachments 1, 2, 3, and 4, represents the entire and
integrated agreement between CITY and CONSULTANT and supersedes all prior
Project Agreement for Engineering Services rev 03122014 Page 27
negotiations, representations, or agreements, either oral or written. This Agreement may
be amended only by written instrument signed by both CITY and CONSULTANT.
22.1 The obligations of the parties to this Agreement shall be performable in the City of
Schertz or its Extra Territorial Jurisdiction, located in Bexar, Comal, and Guadalupe
Counties, Texas, and if legal action, such as civil litigation, is necessary in connection
therewith, exclusive venue shall lie in Guadalupe County, Texas.
ARTICLE 23: NOTICES
23.1 Except as may be provided elsewhere herein, all notices, communications, and reports
required or permitted under this Contract shall be personally delivered or mailed to the
respective party by depositing the same in the United States Postal Service addressed to
the applicable address shown below, unless and until either party is otherwise notified in
writing by the other party of a change of such address. Mailed notices shall be deemed
communicated as of five calendar days of mailing. Notices provided via email shall be
deemed communicated as of the next business day after the notice is sent.
If intended for CITY, to: City of Schertz
Engineering Department
10 Commercial Place
Schertz, Texas 78154
If intended for CONSULTANT, to: The address listed on the first page of this
Agreement.
ARTICLE 24: INDEPENDENT CONTRACTOR
24.1 In performing services under this Agreement, the relationship between CITY and
CONSULTANT is that of independent contractor. By the execution of this Agreement,
CONSULTANT and CITY do not change the independent contractor status of
CONSULTANT. CONSULTANT shall exercise independent judgment in performing its
duties and obligations under this Agreement and is solely responsible for setting working
hours, scheduling or prioritizing the work flow and determining how the Services are to be
performed. No term or provision of this Agreement or act of CONSULTANT in the
performance of this Agreement shall be construed as making CONSULTANT the agent,
servant or employee of CITY, or as making CONSULTANT or any of its agents or
employees eligible for any fiinge benefits, such as retirement, insurance and worker's
compensation, which CITY provides to or for its employees.
ARTICLE 25: CAPTIONS
25.1 The captions for the individual provisions of this Agreement are for informational
purposes only and shall not be construed to effect or modify the substance of the terns
and conditions of this Agreement to which any caption relates.
Project Agreement for Engineering Services rev 03122014 Page 28
IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Agreement
effective as of , 20 (the "Effective Date ").
• 519-
CITY MANAGER
Consultant Name
TITLE
Project Agreement for Engineering Services rev 03122014 Page 29
ATTACHMENT 1
Project Agreement for Engineering Services rev 03122014 Page 30
AT'TACHMMIENT 2
Preliminary Engineering Report
30% Design
60% Design
90% Design
Bid Phase
Construction Phase including
Closeout
TOTAL ESTIMATED COST
(NOT -TO- EXCEED AMOUNT)
ESTIMATED COST
DAYS
Project Agreement for Engineering Services rev 03122014 Page 31
I1 I`w11i►[!!7
Project Agreement for Engineering Services rev 03122014 Page 32
ATTACHMENT 4
CITY OF SCHERTZ
CITY MANAGER
CONSULTANT
Consultant Name
TITLE
Project Agreement for Engineering Services rev 03122014 Page 33
1*11.1 I 'C Y
Hourly Billing Rate Table
DISCIPLINE HOURLY RATE
Principals
$200.00
Sr. Civil Engineers (PE) (Sr. Project Managers)
$165.00
Civil Engineers (PE) (Project Managers)
$150.00
Project Coordinators (EIT)
$ 95.00
Design Techs
$ 90.00
CADD Technicians
$ 85.00
Clerical Staff
$ 65.00
Licensed State Land Surveyor (LSLS)
$165.00
Registered Professional Land Surveyors (RPLS)
$150.00
Survey Technicians /CADD
$ 85.00
One - Person Survey Crew
$125.00
Two - Person Survey Crew
$145.00
Three - Person Survey Crew
$165.00
Four - Person Survey Crew
$185.00
PROPERTY RESEARCH & DOC. SVC.
Property Research $ 75.00
(Copies additional cost)
On Call Engineering Services Master Agreement Ford 2014 Exhibit B
Agenda No. 4
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department: Engineering
Subject: Resolution No. 14 -R -56 — A Resolution of
the City Council of the City of Schertz,
Texas authorizing and approving a
Professional Services Agreement with
Lockwood, Andrews, & Newman, Inc. for
On -Call Engineering Services and all
matters in connection therewith
BACKGROUND
The City of Schertz advertised for Request for Qualifications for On -Call Engineering Firms in
February 2014. Statements of Qualifications were received by the City of Schertz on March 18,
2014. Statements were received from 26 firms. A panel of five City Staff and Management
representatives reviewed each of the documents submitted in detail. The submittals were evaluated
for the following criteria:
1. Understanding of the requirement;
2. Management ability;
3. Commitment to quality;
4. Qualifications and experience of key personnel;
5. Resources and facilities;
6. Relevant prior experience; and
7. Past performance, particularly with City contracts.
The panel met on several occasions to discuss the submittals and come to consensus regarding six
firms to be invited for personal interviews.
Interviews were held with the firms at the end of April. The panel again met to discuss results of the
interviews.
It is recommended that the City award On Call Engineering Services Agreements to the following
consulting engineering firms:
• Cobb, Fendley & Associates, Inc.
• Ford Engineering, Inc.
• Lockwood, Andrews & Newman, Inc.
• Pape- Dawson Engineers, Inc.
Having this group of firms available for consultation allows the City to utilize the most qualified firm
for each particular project based on the particular engineering qualifications and experience.
The agreements for On -Call Engineering Services will remain in force for three years with two
optional one -year extensions.
Once a project is identified and consulting services are needed, Staff will identify which of the four
on -call firms is best suited for the project. A proposed scope, fee, and schedule will be requested and
a project - specific agreement will be negotiated with that firm. The award of the On -Call Agreement
allows the City to avoid an RFQ process for every project — small or large — and to enter into a
contract with a firm already fully vetted and deemed to be best qualified for the project. Staff will
also be able to request assistance with general engineering services such as plan review, standard
detail and specification development, design services needed for maintenance or rehabilitation
projects for which City personnel will perform the construction work.
Goal:
Approve Resolution 14 -R -56 approving a three -year Professional Services Agreement for On -Call
Engineering with Lockwood, Andrews, & Newman, Inc.
Community Benefit:
The City will be able to utilize the most qualified firm for each particular project based on the firms
qualifications and experience, resulting in an effective and efficient project process to insure that the
citizens and businesses of Schertz are provided with top -notch facilities and services.
Summary of Recommended Action:
Approve Resolution 14 -R -56 approving a three -year Professional Services Agreement with
Lockwood, Andrews, & Newman, Inc.
FISCAL IMPACT
Fiscal impact will vary with particular projects and the use of a specific firm and their fee schedule as
outlined in the Professional Service Agreement.
STAFF RECOMMENDATION
Staff recommends approval of Resolution 14 -R -56
ATTACHMENT(S)
Resolution 14 -R -56
RESOLUTION NO. 14 -R -56
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AND APPROVING A
PROFESSIONAL SERVICES AGREEMENT WITH LOCKWOOD,
ANDREWS, & NEWMAN, INC. FOR ON -CALL ENGINEERING
SERVICES AND ALL MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has determined that the City
requires a professional services agreement with Lockwood, Andrews, & Newman, Inc. relating
to on -call engineering services for the City; and
WHEREAS, City staff has determined that Lockwood, Andrews, & Newman, Inc. is
qualified to provide such services for the City; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Lockwood, Andrews, & Newman, Inc. pursuant to the Professional Services
Agreement for Engineering Services attached hereto as Exhibit A (the "Agreement ").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Lockwood, Andrews, & Newman, Inc. in substantially the form set
forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 1St day of July, 2014.
CITY OF SCHERTZ, TEXAS
Michael Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(CITY SEAL)
50506887.1
EXHIBIT A
SECOND AMENDMENT TO AGREEMENT FOR ENGINEERING SERVICES
50506887.1 A -1
CITY OF SCHERTZ
O CALL ENGINEERING SERVICES MASTER AGREEMENJ
STATE TAE OF TEXAS
This On Call Engineering Services Agreement (Agreement) is made and entered into by and
between the City of Schertz, Texas (City), a Texas municipality, and Lockwood, Andrews &
Newnam, Inc. (Professional).
Section 1. Duration. This Agreement shall become effective upon the date executed
below and shall remain in effect for a period of three years from its execution unless
terminated as provided for herein.
This Agreement may be extended if approved by the City Council for a period of one year.
A maximum of two extensions may be made.
This Agreement shall remain in force automatically beyond the effective term for a period
which may reasonably be required for the satisfactory completion of a project which is
already underway at the time of term expiration unless otherwise terminated as provided for
herein.
(A) In consideration of the Professional's three year authority to provide the Services
provided for herein, and other consideration the sufficiency and receipt of which is hereby
acknowledged, the Professional shall provide on -call engineering services to the City for
purposes of general consulting, design, bid, and construction phase services the City of
Schertz to include:
1. Water Transmission and distribution
2. Wastewater collection and conveyance
3. Streets, drainage and site work
Projects for which services will be needed may include new infrastructure, miscellaneous
improvements, modifications, and upgrades to existing facilities, which will require a Scope
of Services to be provided by a qualified consultant(s) or consulting firm(s) or team.
(S) The Professional shall provide plans, technical specifications, bid and construction
phase support, and other related services, as requested, not limited to:
1. General Service including presentations at meetings and other Professional
services as requested.
On Call Engineering Services Master Agreement LAN 2014 Page 1 of 6
2. Design services including field surveys, testing, design concepts. providing
probable construction costs, document progress intervals, provide detailed plans
and specifications, and other related services to design the project and prepare it to
bid.
3. Prepare documents for, and coordinate with other utilities and associated
local, state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits.
4. During construction phase, provide construction stakes as requested,
prepare change orders, specifications and documentation, make recommendations
on Contractor change order requests, attend progress meetings and monitor
construction schedule, provide observation and owner representation during
construction, review and process all submittals, recommend substantial completion
of the project, prepare record drawings, perform final inspection and report on final
completion of the project.
The provisions of Service required shall be referred to herein as the "Scope of
Work ".
(C) The quality of Services provided under this Agreement shall be of the level of
professional quality performed by Professionals regularly rendering this type of
service.
(D) The Professional shall perform its Services for the Project in compliance with
all statutory, regulatory and contractual requirements now or hereafter in effect as
may be applicable to the rights and obligations set forth in the Agreement.
(E) The Professional may rely upon the accuracy of reports and surveys provided
by the City except when defects should have been apparent to a reasonably
competent professional or when it has actual notice of any defects in the reports and
surveys.
(F) The Professional shall be required to execute a project contract in
substantially the same form as the attached "Exhibit A" for each assigned Scope of
Services project.
Section 3. Compensation. The Professional shall be compensated pursuant to
the agreed upon fee schedule which shall be "Exhibit S" to this Agreement.
Section 4a Time of Completion. The prompt completion of the services relating to
any Scope of Work is critical to the City. Unnecessary delays in providing services
under the Scope of Work shall be grounds for dismissal of the Professional and
termination of this Agreement without any or further liability to the City other than a
prorated payment for necessary, timely, and conforming work done by Professional
prior to the time of termination. The Scope of Work shall provide, in either calendar
On Call Engineering Services Master Agreement LAN 2014 Page 2 of 6
days or by providing a final date, a time of completion prior to which the Professional
shall have completed all tasks and services described in the Scope of Work.
(A) Subletting. The Professional shall not sublet or transfer any portion of the
work under this Agreement or any Scope of Work issued pursuant to this Agreement
unless specifically approved in writing by the City.
(S) Compliance with Laws. The Professional shall comply with all federal, state
and local laws, statutes, ordinances, rules and regulations, and the orders and
decrees of any courts, administrative, or regulatory bodies in any matter affecting
the performance of this Agreement, including, without limitation, worker's
compensation laws, minimum and maximum salary and wage statutes and
regulations, and licensing laws and regulations. When required, the Professional
shall furnish the City with satisfactory proof of compliance.
(C) Independent Contractor. Professional acknowledges that Professional is an
independent contractor of the City and is not an employee, agent, official or
representative of the City. Professional shall not represent, either expressly or
through implication, that Professional is an employee, agent, official or
representative of the City. Income taxes, self - employment taxes, social security
taxes and the like are the sole responsibility of the Professional.
(®) Non- Collusion. Professional represents and warrants that Professional has
not given, made, promised or paid, nor offered to give, make, promise or pay any
gift, bonus, commission, money or other consideration to any person as an
inducement to or in order to obtain the work to be provided to the City under this
Agreement. Professional further agrees that Professional shall not accept any gift,
bonus, commission, money, or other consideration from any person (other than from
the City pursuant to this Agreement) for any of the services performed by
Professional under or related to this Agreement. If any such gift, bonus,
commission, money, or other consideration is received by or offered to Professional,
Professional shall immediately report that fact to the City and, at the sole option of
the City, the City may elect to accept the consideration for itself or to take the value
of such consideration as a credit against the compensation otherwise owing to
Professional under or pursuant to this Agreement.
(E) In the case of any conflicts between the terms of this Agreement and wording
contained within the Scope of Services, this Agreement shall govern. The Scope of
Services is intended to detail the technical scope of services, fee schedule, and
contract time only and shall not dictate Agreement terms.
On Call Engineering Services Master Agreement LAN 2014 Page 3 of 6
(A) This Agreement may be terminated:
1. By the mutual agreement and consent of both Professional and City;
2. By the City, immediately upon notice in writing to the Professional, as
consequence of the failure of Professional to perform the services contemplated by
this Agreement in a timely or satisfactory manner;
3. By the City, at will and without cause upon not less than thirty (30) days
written notice to the Professional.
Section 8. Notices. Any notice required or desired to be given from one party to
the other party to this Agreement shall be in writing and shall be given and shall be
deemed to have been served and received (whether actually received or not) if (i)
delivered in person to the address set forth below; (ii) deposited in an official
depository under the regular care and custody of the United States Postal Service
located within the confines of the United States of America and sent by certified
mail, return receipt requested, and addressed to such party at the address
hereinafter specified; or (iii) delivered to such party by courier receipted delivery.
Either party may designate another address within the confines of the continental
United States of America for notice, but until written notice of such change is
actually received by the other party, the last address of such party designated for
notice shall remain such party's address for notice.
Section 9. No Assignment. Neither party shall have the right to assign that party's
interest in this Agreement without the prior written consent of the other party.
On Call Engineering Services Master Agreement LAN 2014 Page 4 of 6
Section 10. Severability. If any term or provision of this Agreement is held to be
illegal, invalid or unenforceable, the legality, validity or enforceability of the
remaining terms or provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable term or provision, there shall be
added automatically to this Agreement a legal, valid or enforceable term or provision
as similar as possible to the term or provision declared illegal, invalid or
unenforceable.
Section 11. Waiver. Either City or the Professional shall have the right to waive
any requirement contained in this Agreement that is intended for the waiving party's
benefit, but, except as otherwise provided herein, such waiver shall be effective only
if in writing executed by the party for whose benefit such requirement is intended.
No waiver of any breach or violation of any term of this Agreement shall be deemed
or construed to constitute a waiver of any other breach or violation, whether
concurrent or subsequent, and whether of the same or of a different type of breach
or violation.
Section 1. overning Law; Venue. This Agreement and all of the transactions
contemplated herein shall be governed by and construed in accordance with the
laws of the State of Texas. The provisions and obligations of this Agreement are
performable in Guadalupe County, Texas such that exclusive venue for any action
arising out of this Agreement shall be in Guadalupe County, Texas.
Section 13. Paragraph Headings The paragraph headings
contained in this Agreement are for convenience only and shall in no way enlarge or
limit the scope or meaning of the various and several paragraphs hereof. Both
parties have participated in the negotiation and preparation of this Agreement and
this Agreement shall not be construed either more or less strongly against or for
either party.
Section 14. Binding Effec t. Except as limited herein, the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, devisees, personal and legal representatives, successors
and assigns.
Section 1. Gender. Within this Agreement, words of any gender shall be held
and construed to include any other gender, and words in the singular number shall
be held and construed to include the plural, unless the context otherwise requires.
Section 1. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
On Call Engineering Services Master Agreement LAN 2014 Page 5 of 6
Section 17. Entire Agreement. It is understood and agreed that this Agreement
contains the entire agreement between the parties and supersedes any and all prior
agreements, arrangements or understandings between the parties relating to the
subject matter. No oral understandings, statements, promises or inducements
contrary to the terms of this Agreement exist. This Agreement cannot be changed
or terminated orally.
Section 18. Disclosure of Business Relationships /Affiliations; Conflict of
Interest Questionnaire. Professional represents that it is in compliance with the
applicable filing and disclosure requirements of Chapter 176 of the Texas Local
Government Code.
EXECUTED on this the day of
CITY:
By:
Name: John C. Kessel
Title: City Manager
ADDRESS FOR NOTICE:
CITY
City of Schertz
Attn: John C. Kessel, City Manager
1400 Schertz Parkway
Schertz, Texas 78154
with a copy to:
City Attorney
City of Schertz, Texas
Attn: Charles E. Zech
2517 N. Main Avenue
San Antonio, Texas 78212
2014.
PROFESSIONAL:
az AM11i
PROFESSIONAL
Lockwood, Andrews & Newnam, Inc.
Attn: Jeremy Doege
10 10 1 Reunion Place, Suite 200
San Antonio, TX 78216
On Call Engineering Services Master Agreement LAN 2014 Page 6 of 6
EXHIBIT A
CITY OF SCHERTZ
PROJECT AGREEMENT FOR ENGINEERING SERVICES
This Agreement is entered into in the City of Schertz, Texas, between the City of Schertz,
Texas municipal corporation, hereinafter called "CITY" and /or "OWNER ", and Lockwood,
Andrews & Newnam, Inc. (LAN), 10101 Reunion Place, suite 200, San Antonio, TX 78216
Engineer(s), duly licensed, and practicing under the laws of the State of Texas, hereinafter called
"CONSULTANT ", this Agreement being executed by City pursuant to appropriate action by the
City Council of CITY and by CONSULTANT, for engineering services hereinafter set forth in
connection with the above designated Project for CITY.
ARTICLE 1
DEFINITIONS
ARTICLE 2
SCOPE OF SERVICES
ARTICLE 3
COMPENSATION FOR SERVICES
ARTICLE 4
METHOD OF PAYMENT
ARTICLE 5
TIME, SCHEDULE, AND PERIOD OF SERVICE
ARTICLE 6
COORDINATION WITH CITY
ARTICLE 7
REVISIONS TO DRAWINGS AND SPECIFICATIONS
ARTICLE 8
OWNERSHIP OF DOCUMENTS
ARTICLE 9
TERMINATION AND /OR SUPENSION OF WORK
ARTICLE 10
CONSULTANT'S WARRANTY
ARTICLE 11
ASSIGNMENT OR TRANSFER OF INTEREST
ARTICLE 12
INSURANCE REQUIREMENTS
ARTICLE 13
INDEMNIFICATION
ARTICLE 14
CLAIMS AND DISPUTES
ARTICLE 15
SEVERABILITY
ARTICLE 16
ESTIMATES OF COST
ARTICLE 17
INTEREST IN CITY CONTRACTS PROHIBITED
ARTICLE 18
CONFLICTS OF INTEREST DISCLOSURE
ARTICLE 19
STANDARD OF CARE
ARTICLE 20
RIGHT OF REVIEW AND AUDIT
ARTICLE 21
ENTIRE AGREEMENTS
ARTICLE 22
VENUE
ARTICLE 23
NOTICES
ARTICLE 24
INDEPENDENT CONTRACTOR
ARTICLE 25
CAPTIONS
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
ATTACHMENT 2
PROJECT DESIGN PHASES COST AND TIMELINE
ATTACHMENT 3
EXPLANATION OF PROJECT FEE
ATTACHMENT 4
ADDITIONAL PROJECTS AND /OR EXPANDED SCOPE
OF SERVICES
Project Agreement for Engineering Services rev 05202014 Page 1
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE MEANINGS
AS SET OUT BELOW:
Agreement means this Master Agreement between CITY and CONSULTANT that
establishes the terms and conditions for all Projects to be carried out under this
Agreement.
Application for Compensation means the form CONSULTANT uses to make a request
to be paid for completed services.
Application for Payment means the form CONSTRUCTION CONTRACTOR uses to
make a request to be paid for completed work.
Certificate for Payment means the forn CONSULTANT uses to make
recommendations on CONSTRUCTION CONTRACTOR'S Application for Payment.
CITY means the City of Schertz, Texas.
Claim means a demand or assertion by one of the parties seeking, as a matter of right,
adjustment, or interpretation of the terms of this Agreement, payment of money,
extension of tune, or other relief with respect to the terms of this Agreement. The term
"claim" also includes other disputes and matters in question between the OWNER and
CONSULTANT arising out of or relating to this Agreement.
Compensation means amounts paid by CITY to CONSULTANT for completed services
under this Agreement.
CONSTRUCTION CONTRACTOR means the firm hired by CITY to construct the
Project.
Construction Contract Documents means the contract between the CITY and the fire
contracted by CITY to construct the Project and all documents therein.
CONSULTANT means the entity named on the cover page of this Agreement and its
officers, partners, employees, agents, and representatives, and all its subconsultants, if
any, and all other persons or entities for which CONSULTANT is legally responsible.
ENGINEER means CITY's City Engineer,
Final Compensation means the final amounts paid by CITY to CONSULTANT for
completed services under this Agreement.
Final Payment means the final amounts paid by CITY to CONSTRUCTION
CONTRACTOR for completed work tinder the constriction contract.
Project Agreement for Engineering Services rev 05202014 Page 2
Opinion of Probable Construction Cost means CONSULTANT'S estimate of probable
constriction cost for a Project based on its experience and qualifications as a practitioner
of its profession and the current costs in the local area.
OWNER means the City of Schertz, Texas.
Payment means amount paid by CITY to CONSTRUCTION CONTRACTOR for work
performed under the Construction Contract Documents.
Plans and Specifications means the construction documents.
Project means the capital improvement/construction development undertaking of CITY
for which CONSULTANT'S services, as stated in the Scope of Services, and to be
provided pursuant to this Agreement.
Proposal means CONSULTANT'S proposal to provide services for the Project.
Schedule of Values means the fees allocated to services, reimbursable and/or various
portions of the services or Work, prepared in such form, and supported by such data to
substantiate its accuracy as OWNER may require.
Scope of Services means the services described in Article 4, Scope of Services.
Services means professional services performed by CONSULTANT,
Total Compensation means the amount paid to CONSULTANT under Article 2,
Compensation for Basic Services, of this Agreement.
Work means the labor and materials required to complete a Project by
CONSTRUCTION CONTRACTOR in accordance with the Constriction Contract
Documents.
ARTICLE 2: SCOPE OF SERVICES
2.1 CONSULTANT shall not commence work until being thoroughly briefed on the scope of
the Project and being notified in writing to proceed. The scope of the Project and
CONSULTANT'S Services required shall be reduced by CONSULTANT to a written
summary of the scope meeting. That Scope of Services and associated time schedule,
along with cost, once approved by CITY, will be included as a part of this Agreement as
Attachments 1 and 2 herein. Should the scope subsequently change, either
CONSULTANT or CITY may request a review of the anticipated services, with an
appropriate adjustment in compensation.
2.2 Communications by and with CONSULTANT'S subconsultants shall be through
CONSULTANT. Communications by and with subcontractors and material suppliers shall
be through CONSTRUCTION CONTRACTOR.
Project Agreement for Engineering Services rev 05202014 Page 3
2.3 CONSULTANT, in consideration for the Compensation herein provided, shall render the
professional Services described in this Section that are necessary for the development of
the Project, including plans and specifications, construction management services, any
special and general conditions, and instructions to bidders as acceptable to the Engineer,
or his or her duty authorized representative.
2.4 CONSULTANT shall complete a Project in accordance with the following phases and
CONSULTANT'S Scope of Services attached and incorporated herein as Attachments 1
and 2.
2.4.1 PROJECT DESIGN PHASES
2.4.2
Preliminary Engineering Report
2.4.3
30% Design
2.4.4
60% Design
2.4.5
90% Design
2.4.6
Sid Documents and Services
2.4.7
Construction Phase Services
2.4.8
Project Close Out and Final Payment
2.5 Upon acceptance and approval of the plans, reports or other deliverables required for a
Phase of work, as set forth in the Scope of Services, Engineer shall authorize
CONSULTANT, in writing, to proceed with the next phase of Work.
2.6 During Design Phases CONSULTANT shall:
2.6.1 Coordinate and meet with City staff and Project stakeholders as appropriate
throughout the Project. Assist staff at meetings with stakeholders, workshops,
and presentations to advisory commissions and City Council.
2.6.2 Provide the necessary field survey services to determine the existing field
conditions, including all utilities and surface features to the maximum extent
possible.
2.6.3 CONSULTANT shall make every effort to minimize utility adjustments, where
possible.
2.6.4 In the event electrical, communication, gas or other facilities are encountered,
CONSULTANT shall identify and incorporate those facilities at the completion of
each Project Phase in order to determine the magnitude of any potential
adjustment.
2.6.5 Perform the necessary testing to determine the existing site conditions and proper
design for construction and methods of any necessary demolition.
2.6.6 Follow and comply with the requirements for the Design Phases listed in this
Agreement, CITY'S Unified Development Code, if applicable, and CITY'S
Design Guidance Manual, both of which are incorporated by reference herein.
Project Agreement for Engineering Services rev 05202014 Page 4
2.6.7 In case of conflicts, follow and comply with the most stringent requirements for
the Design Phases,
2.6.8 Prepare documents for, and coordinate with other utilities and associated local,
state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits (determined during scoping for
each individual project).
2.6.9 Provide detailed plans and specifications for the Project at appropriate progress
intervals in requested formats (may include hard copy, .pdf, and Awg).
2.6. 10 Provide Opinion of Probably Construction Cost.
2.7 During Bid Phase CONSULTANT shall:
2.7.1 Provide unit price bid quantities in City bid form format for use in bid documents.
2.7.2 Provide bid sets of contract, technical specifications, plans, and any other
necessary documents in hard copy and digital format.
2.7.3 Attend pre -bid conference and prepare responses to questions and addenda as
necessary.
2.7.4 Research qualifications and references of apparent low bidder(s) and provide a
letter of recommendation for contract award.
2.8 During Construction Phase:
2.8.1 CONSULTANT shall monitor construction schedule.
2.8.2 CONSULTANT will make a minimum of two visits per month to the Project Site
at intervals appropriate to the Phases to (1) become generally familiar with and to
keep CITY informed about the progress and quality of the portion of the Work
completed, and (2) endeavor to guard CITY against defects in Work. However,
CONSULTANT will not be required to make exhaustive or continuous on -site
inspections to check the quality or quantity of the Work.
2.8.3 CONSULTANT will neither have control over or charge of, nor be responsible
for, the construction means, methods, techniques, sequences or procedures, or for
the safety precautions and programs in connection with the Work since these are
solely CONSTRUCTION CONTRACTOR'S rights and responsibilities under the
Contract Documents. CONSULTANT'S efforts will be directed toward providing
for CITY a greater degree of confidence that the completed Work will generally
conform to the Contract Documents.
2.8.4 CONSULTANT will not be responsible for CONSTRUCTION
CONTRACTOR'S failure to perform the Work in accordance with the
requirements of the Contract Documents. CONSULTANT will not have control
Project Agreement for Engineering Services rev OS202014 Page S
over or charge of and will not be responsible for acts or omissions of
CONSTRUCTION CONTRACTOR, subcontractors, or their agents or
employees, or any other persons or entities performing portions of the Work.
2.8.5 CONSULTANT and CITY have authority to reject Work that does not conform to
the Contract Documents. Whenever CONSULTANT or CITY considers it
necessary or advisable, either CITY or CONSULTANT may require inspection or
testing of the Work whether or not such Work is fabricated, installed or
completed. However, neither this authority of CONSULTANT or CITY, nor a
decision made by either, in good faith, to require or not require an inspection shall
give rise to a duty or responsibility of CONSULTANT or CITY to
CONSTRUCTION CONTRACTOR, subcontractors, material and equipment
suppliers, agents or employees, or other persons or entities perfonning portions of
the Work.
2.8.6 CONSULTANT will review and approve or take other appropriate action upon
CONSTRUCTION CONTRACTOR'S submittals such as Shop Drawings,
Product Data and Samples, but only for the limited purpose of checking for
conformance with information given and the design concept expressed in the
Contract Documents. CONSULTANT will respond to submittals such as Shop
Drawings, Product Data, and Samples pursuant to the procedures set forth in the
Project specifications. Review of such submittals is not conducted for the purpose
of determining the accuracy and completeness of equipment or systems, all of
which remain the responsibility of CONSTRUCTION CONTRACTOR as
required by the Contract Documents. CONSULTANT'S review of
CONSTRUCTION CONTRACTOR'S submittals shall not relieve
CONSTRUCTION CONTRACTOR of its obligations. CONSULTANT'S review
shall not constitute approval of safety precautions or any construction means,
methods, techniques, sequences or procedures unless otherwise specifically stated
by CONSULTANT. CONSULTANT'S approval of a specific item shall not
indicate approval of an assembly of which the item is a component.
2.8.7 CONSULTANT will, within three work days after receipt of CONSTRUCTION
CONTRACTOR'S Application for Payment review the Application for Payment
and either issue to OWNER and /or the affected utility a Certificate for Payment
for such amount as CONSULTANT determines is properly due, or notify
OWNER, any affected utility, and CONSTRUCTION CONTRACTOR in writing
of CONSULTANT'S reasons for withholding recommendation of approval in
whole or in part.
2.8.8 CONSULTANT'S issuance of a Certificate for Payment will constitute a
representation by CONSULTANT to OWNER, based on CONSULTANT'S
evaluation of the Work and the data comprising the Application for Payment, that
the Work has progressed to the point indicated and that, to the best of
CONSULTANT'S knowledge, information and belief, the quality of the work is
in accordance with the design agreement documents or Construction Contract
Documents. The foregoing representations are subject to an evaluation of the
Project Agreement for Engineering Services rev 05202014 Page 6
Work for conformance with the design agreement documents, to results of
subsequent tests and inspections, to correction of minor deviations from the
design agreement documents prior to completion, and to any specific
qualifications expressed by CONSULTANT. The issuance of a Certificate for
Payment based on the CONSTRUCTION CONTRACTOR'S Application for
Payment will fiuther constitute a representation that CONSTRUCTION
CONTRACTOR is entitled to payment in accordance with the Schedule of
Values. The issuance of Certificate for Payment will not be a representation that
CONSULTANT has (1) made exhaustive or continuous on -site inspections to
check the quality or quantity of the Work, (2) reviewed construction means,
methods, techniques, sequences or procedures, (3) reviewed copies of requisitions
received from Subcontractors and material suppliers and other data requested by
OWNER to substantiate Construction Contractor's right to payment, or (4) made
any examination to ascertain how or for what purpose CONSTRUCTION
CONTRACTOR has used money previously paid on account of the Application
for Payment sum.
2.8.9 CONSULTANT may recommend withholding an approval for Payment in whole
or in part, to the extent reasonably necessary to protect OWNER if, in
CONSULTANT'S opinion, the representations to OWNER required by Section
4.13 caruiot be made. If CONSULTANT is unable to recommend approval of
payment in the amount of the Application, CONSULTANT will notify OWNER
and CONSTRUCTION CONTRACTOR as provided in Section 4.12. If OWNER
and CONSULTANT cannot agree on a revised amount, CONSULTANT will
promptly issue a Certificate for Payment for the amount for which
CONSULTANT is able to make such representations to OWNER.
CONSULTANT may also recommend withholding a Payment, because of
subsequently discovered evidence, may modify the whole or a part of a Certificate
for Payment to such extent as may be necessary, in CONSULTANT'S opinion, to
protect OWNER and the affected utility from loss for which CONSTRUCTION
CONTRACTOR is responsible, including loss resulting fi•om acts and omissions
described below:
2.8.9.1 defective Work not remedied;
2.8.9.2 third party claims filed or reasonable evidence indicating probable
filing of such claims for which CONSTRUCTION CONTRACTOR is
responsible hereunder unless security acceptable to OWNER and the
affected utility is provided by CONSTRUCTION CONTRACTOR;
2.8.9.3 failure of CONSTRUCTION CONTRACTOR to make payments
property to the subcontractors and /or material providers;
2.8.9.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the agreement sum and CONSTRUCTION CONTRACTOR
has failed to provide OWNER and the affected utility adequate
Project Agreement for Engineering Services rev 05202014 Page 7
assurance of its continued performance within a reasonable time after
demand;
2.8.9.5 damage to OWNER or another contractor;
2.8.9.6 reasonable evidence that the Work will not be completed within the
agreement time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
2.8.9.7 persistent failure by CONSTRUCTION CONTRACTOR to cant' out
the Work in accordance with the Construction Contract Documents.
2.8.10 When the above reasons for withholding payment are removed, payment will be
made for amounts previously withheld. OWNER shall not be deemed in default
by CONSULTANT by reason of withholding payment as provided herein.
2.8.11 CONSULTANT will prepare Change Orders and Field Work Directives, and,
with concurrence of OWNER, OWNER'S designated representative will have
authority to order minor changes in the Work not involving an adjustment in the
Total Compensation or an extension of the time for construction. Such changes
shall be effected by written order, which CONSTRUCTION CONTRACTOR
shall cant' out promptly and record on the as -built plan.
2.8.12 Upon written request of CITY or CONSTRUCTION CONTRACTOR,
CONSULTANT will issue its interpretation of the requirements of the Plans and
Specifications. CONSULTANT'S response to such requests will be made in
writing within any agreed time limits or otherwise with reasonable promptness. If
no agreement is made concerning the time within which interpretations required
by CONSULTANT shall be furnished in compliance with Article IV, then delay
shall not be recognized on account of failure by CONSULTANT to furnish such
interpretations until 15 days after written request is made for CONSULTANT'S
interpretation.
2.8.13 Interpretations of CONSULTANT will be consistent with the intent of and
reasonably inferable from the Construction Contract Documents and will be in
writing or in the form of drawings.
2.8.14 CONSULTANT will advise and consult with CITY. CITY'S instructions to
CONSTRUCTION CONTRACTOR may be issued through CONSULTANT, but
CITY reserves the right to issue instructions directly to CONSTRUCTION
CONTRACTOR through inspectors or other designated CITY representatives.
2.8.15 CONSULTANT and CITY will conduct observations to determine the date of
substantial completion of the Work. CONSULTANT shall provide to CITY a
written recommendation of consideration of substantial completion of the Project.
2.8.16 CONSULTANT and CITY will conduct observations to determine the date of
final completion. CONSULTANT will receive and forward to CITY, for CITY'S
Project Agreement for Engineering Services rev 05202014 Page 8
review and records, written warranties and related documents required by the
Construction Contract Documents and assembled by CONSTRUCTION
CONTRACTOR, and will issue a final Approval for Payment upon compliance
with the requirements of the Construction Contract Documents. Such final
Approval will be accompanied by a signed and sealed statement from the
CONSULTANT'S Engineer of Record that certifies to CITY that the project was
constructed in accordance with the approved plans and specifications.
2.8.17 CONSULTANT shall prepare record drawings from information submitted by
CONSTRUCTION CONTRACTOR and from CONSULTANT'S own
observations in accordance with City standards. CONSULTANT shall provide
record drawings in hard copy, .pdf, and Awg formats to CITY.
i
3.1 Basic Services
3.1.1 Compensation for all Services included in this Agreement will be on a time and
expense not -to- exceed basis in accordance with the negotiated, approved schedule
of billing rates as set forth in the Master Agreement. Not -to- exceed compensation
amounts, to the extent they have been negotiated shall be reflected in Attachment
3. A Proposal including a not -to- exceed cost will be provided by
CONSULTANT along with a Scope of Services for each Project (Attachments 1
and 2). The amount to be paid to CONSULTANT, including authorized
adjustments, is the total amount payable by OWNER to CONSULTANT for
performance of the Services for the Project under this Agreement. It is agreed
and understood that such amount will constitute full compensation to
CONSULTANT for Services included in the Scope of Services and shall meet all
requirements of CITY'S design guidelines applicable to the Project. Unless and
until CITY makes fru-ther appropriations for any Services not included in the
Scope of Services of this Agreement, the obligation of CITY to CONSULTANT
for Compensation in connection with this Agreement cannot and will not exceed
the stun described in this Section without further amendment to this Agreement.
3.1.2 No billing rate changes from those approved in the Master Agreement associated
with this Agreement shall be made during the term of this Agreement without the
prior written approval of CITY.
3.1.3 CONSULTANT shall submit monthly invoices to CITY describing the Services
performed the preceding month. CONSULTANT'S invoices shall include the
name of the person who performed the Service, a brief description of the Service
performed and the Phase of the Project to which the Service relates, the date(s)
the Service was performed, the number of hours spent on all Services billed on an
hourly basis, and a description of any subconsultant fees and /or reimbursable
expenditures.
Project Agreement for Engineering Services rev 05202014 Page 9
3.1.4 CITY shall reimburse CONSULTANT only for those costs or expenses
specifically approved in this Agreement, or specifically approved in advance by
CITY. Unless otherwise approved, such costs shall be limited and include
nothing more than the following costs incurred by CONSULTANT:
3.1.4.1 Approved reproduction charges,
3.1.4.2 Actual costs of subconsultant(s) for performance of any of the Services
that CONSULTANT agrees to provide pursuant to this Agreement,
which have been approved in advance by CITY and awarded in
accordance with this Agreement.
3.1.4.3 Actual costs and /or other costs and /or payments specifically authorized
in advance by the CITY in writing and incurred by CONSULTANT in
the performance of this Agreement.
3.1.5 CONSULTANT shall complete the Project in accordance with the following
phases. For the put-pose of establishing portions of compensation for separate
phases, more particularly described in the Scope of Services, Attachment 2 shall
apply.
Preliminary Engineering Report
30% Design
60% Design
90% Design
Bid Documents and Services
Construction Phase Services
Project Close Out and Final Payment
3.1.6 CONSULTANT shall, within 10 days following receipt of Compensation from
OWNER, pay all bills for Services performed and furnished hereunder by
subconsultant(s) of CONSULTANT in connection with the Project and the
performance of services and shall, if requested, provide OWNER with evidence
of such payment. CONSULTANT'S failure to make payments within such time
shall constitute a material breach of this Agreement unless CONSULTANT is
able to demonstrate to OWNER bona fide disputes associated with the Services of
the unpaid subconsultant and its services. CONSULTANT shall include a
provision in each of its sub agreements imposing the same payment obligations on
its subconsultants as are applicable to CONSULTANT hereunder, and if OWNER
so requests, shall provide evidence of such payments by CONSULTANT to
OWNER. If CONSULTANT has failed to make payment promptly to the
subconsultant for undisputed Services for which OWNER has made payment to
CONSULTANT, OWNER shall be entitled to withhold future payment to
CONSULTANT to the extent remaining unpaid by CONSULTANT necessary to
protect OWNER.
Project Agreement for Engineering Services rev 05202014 Page 10
3.1.7 CONSULTANT warrants that title to all deliverables produced in the
performance of Services covered by an Application for Compensation will pass to
OWNER no later than the time of payment. CONSULTANT fiurther warrants that
upon submittal of an Application for Compensation, all Services for which
Applications for Compensation have been previously issued and payments
received from OWNER shall, to the best of CONSULTANT'S knowledge,
information and belief be free and clear of liens, claims, security interests or
encumbrance in favor of CONSULTANT, or other persons or entities under
contract with CONSULTANT making a claim by reason of having provided labor
or services relating to CONSULTANT'S Services. CONSULTANT SHALL
INDEMNIFY AND HOLD OWNER HARMLESS FROM ANY LIENS,
CLAIMS, SECURITY INTEREST OR ENCUMBRANCES FILED BY
ANYONE CLAIMING BY, THROUGH OR UNDER THE ITEMS COVERED
BY PAYMENTS MADE BY OWNER TO CONSULTANT.
3.2 Additional Services
3.2.1 CONSULTANT shall not receive any compensation for additional Services
without prior written authorization of CITY. Compensation for duly authorized
additional Services shall be paid in accordance with the approved schedule of
billing rates as set forth in the Master Agreement.
3.2.2 Examples of additional Services (not all inclusive)
3.2.2.1 Assistance to CITY as an expert witness in any litigation with third
parties arising from the development of construction of a Project
including the preparation of engineering data and reports,
3.2.2.2 Preparation of plats and field notes for acquisition of property.
3.2.2.3 Preparation of applications and supporting documents for governmental
grants, loans, or advances in connection with a Project; preparation of
review of environmental assessment and impact statements; review and
evaluation of the effect on the design requirements of a Project of any
such statements and documents prepared by others; and assistance in
obtaining approval of authorities having jurisdiction over the
anticipated environmental impact of a Project.
3.2.2.4 Malting revisions in drawings, specifications, or other documents when
such revisions are inconsistent with written approvals or instructions
previously given, are required by the enactment or revision of codes,
laws, or regulations subsequent to the preparation of such documents or
are due to other causes not solely within the control of
CONSULTANT.
3.2.2.5 Making revisions to drawings or specifications occasioned by
acceptance of substitutions proposed by CONSTRUCTION
CONTRACTOR, and Services after the award of each contract in
Project Agreement for Engineering Services rev 05202014 Page 11
evaluating and detennining the acceptability of an unreasonable or
excessive number of substitutions proposed by CONSTRUCTION
CONTRACTOR.
3.2.2.6 Preparing drawings, specifications, and supporting data and providing
other Services in connection with change order requests to the extent
that the adjustment in the basic compensation resulting from the
adjusted constriction cost is not commensurate with the Services
required of CONSULTANT, provided such change order requests are
required by causes not solely within the control of CONSULTANT; or
in connection with change orders requiring significant engineering
effort to compute and document the Work effort reflected by the
Change Order,
3.2.2.7 Investigations, surveys, valuations, inventories, or detailed appraisals of
facilities, construction and/or services not required by Project scope.
3.2.2.8 Investigations, surveys, audit, or inventories required in connection
with construction performed by CITY.
3.2.2.9 Additional Services during constriction made necessary by:
3.2.2.9.1 Work damaged by fire or other cause during construction.
3.2.2.9.2 A significant amount of defective or neglected work of
CONSTRUCTION CONTRACTOR.
3.2.2.9.3 Failure of performance of CONSTRUCTION
CONTRACTOR.
3.2.2.9.4 Acceleration of the progress schedule required by CITY
involving Services beyond normal working hours.
3.2.2.9.5 Default by CONSTRUCTION CONTRACTOR.
3.2.2.10 Providing extensive assistance in the use of any equipment or system
such as initial start-up or testing, adjusting and balancing, preparation
of operation and maintenance manuals, training personnel for operation
and maintenance, and consultation during operation.
3.2.2.11 Providing Services relative to future facilities, systems, and equipment
which are not intended to be constructed during the Construction Phase.
3.2.2.12 Services after completion of the Construction Phase, such as
inspections during any guarantee period and reporting observed
deficiencies under guarantee called for in any contract for a Project.
Project Agreement for Engineering Services rev OS202014 Page 12
3.12.13 Providing Services of geotechnical engineering firm to perform test
borings and other soil or foundation investigations and related analysis
not included in original Scope of Services for a Project.
3.2.2.14 Additional copies of Construction Contract Documents, review
documents, bidding documents, reports, and or drawings over the
number specified in the original Scope of Services for a Project.
3.2.2.15 Preparation of all documents dealing with 404 permits and railroad
agreements.
3.2.2.16 Providing photographs, renderings, or models for CITY use.
3.2.2.17 Providing aerial mapping Services.
3.2.2.18 Providing consulting engineering Services not related to a particular
design or construction Project.
3.3 All Applications for Compensation shall be submitted through Engineer's office.
ARTICLE 4: METHOD OF PAYMENT
4.1 Compensation may be made to CONSULTANT as appropriately indicated on monthly
Applications for Compensation prepared based on hourly rates, not to exceed amounts
estimated for each phase, as described in Article 2 and Attachments 1 and 2 hereof.
4.2 Project Close Out and Final Payment —
4.2.1 CONSULTANT shall not be entitled to final payment unless and until it submits
to OWNER its affidavit that the invoices for services, and other liabilities
connected with the services for which OWNER, or OWNER'S property, might be
responsible have been fully paid or otherwise satisfied or will be paid from final
payment; releases and waivers of liens from all CONSULTANT'S subconsultants
and of any and all other parties required by OWNER that are either unconditional
or conditional on receipt of final payment; certificates of insurance showing
continuation of required insurance coverage; such other documents as OWNER
may request; and consent of surety to final payment.
4.2.2 Final Compensation — The final compensation to be made by CITY to
CONSULTANT will be payable upon submission of the "Record Drawings ".
CONSULTANT agrees to submit "Record Drawings: in print media, electronic
format (pdf and .dwg formats) and final billing within 45 days of final acceptance
of construction. Additionally, CONSULTANT agrees to submit a statement of
release with the final billing notifying CITY that there is no further compensation
owed to CONSULTANT by CITY beyond the final bill. Final billing shall
indicate "Final Bill — no additional compensation is due to CONSULTANT ".
Project Agreement for Engineering Services rev 05202014 Page 13
4.3 OWNER may withhold compensation to such extent as may be necessary, in OWNER'S
opinion, to protect OWNER from damage or loss for which CONSULTANT is
responsible, because of,
4.3.1 delays in the performance of CONSULTANT'S services;
4.3.2 third party claims filed or reasonable evidence indicating probable filing of such
claims unless security acceptable to OWNER is provided by CONSULTANT;
4.3.3 failure of CONSULTANT to make payments properly to subconsultants or
vendors for labor, materials or equipment;
4.3.4 reasonable evidence that CONSULTANT'S work cannot be completed for the
amount unpaid Linder this Agreement;
4.3.5 damage to OWNER or CONSTRUCTION CONTRACTOR; or
4.3.6 persistent failure by CONSULTANT to carry out the performance of its Services
in accordance with this Agreement.
4.4 When the above reasons for withholding are removed or remedied by CONSULTANT,
compensation of the amount withheld will be made within a reasonable time. OWNER
shall not be deemed in default by reason of withholding compensation as provided for in
this Article.
4.5 In the event of any dispute(s) between the parties regarding the amount properly payable
for any Phase or as final Compensation, or regarding any amount that may be withheld by
OWNER, CONSULTANT shall be required to make a claim pursuant to and in
accordance with the terms of this Agreement and follow the procedures provided herein
for the resolution of such dispute. In the event CONSULTANT does not initiate and
follow the claims procedures provided in this Agreement in a timely manner and as
required by the terms thereof, any such claim shall be waived.
4.6 OWNER shall make final compensation for all sums due CONSULTANT not more than
30 days after CONSULTANT'S final Application for Compensation.
4.7 Acceptance of final compensation by CONSULTANT shall constitute a waiver of claims
except those previously made in writing and identified by CONSULTANT as unsettled at
the time of final Application for Compensation.
4.8 CONSULTANT agrees to maintain adequate books, payrolls and records satisfactory to
OWNER and all applicable utility providers in connection with any and all Services
performed hereunder. CONSULTANT agrees to retain all such books, payrolls and
records (including data stored in computer) for a period of not less than four years after
completion of Work. At all reasonable times, OWNER and all applicable utility providers
and their duly authorized representatives shall have access to all personnel of
CONSULTANT and all such books, payrolls and records, and shall have the right to audit
same.
Project Agreement for Engineering Services rev 05202014 Page 14
5.1 Prior to commencement, CONSULTANT shall provide CITY with a schedule of Project
Design Phases, Attachment 2.
5.2 Time is of the essence of this Agreement. CONSULTANT shall perform and complete its
obligations for the various Phases of a Project under Section 4, Scope of Services, of this
Agreement in a prompt and continuous manner so as to not delay the development of the
design Services and so as to not delay the construction of the work, for the Project in
accordance with the schedules approved by CITY with CONSTRUCTION
CONTRACTOR. Upon review of phase Services, if corrections, modifications,
alterations, or additions are required of CONSULTANT, these items shall be completed
by CONSULTANT before that Phase is approved.
5.3 CONSULTANT shall not proceed with the next appropriate Phase of Services without
written authorization from the Engineer. CITY may elect to discontinue
CONSULTANT'S Services at the end of any Phase for any reason. Notwithstanding any
other provisions of this Agreement, if circumstance dictates, the Engineer may make
adjustments to the scope of CONSULTANT'S obligations at any time to achieve the
required design.
5.4 CONSULTANT shall not be liable or responsible for any delays due to strikes, riots, acts
of God, national emergency, acts of the public enemy, governmental restrictions, laws or
regulations, or any other causes beyond CONSULTANT'S reasonable control. Within 21
days from the occurrence of any event for which time for performance by
CONSULTANT will be significantly extended under this provision, CONSULTANT
shall give written notice thereof to CITY stating the reason for such extension and the
actual or estimated time thereof. If CITY determines that CONSULTANT is responsible
for the need for extended time, CITY shall have the right to make a Claim as provided in
this Agreement.
5.5 Term of Agreement shall be as follows:
5.5.1 This Agreement shall become effective upon and shall remain in
effect until satisfactory completion of the Project unless terminated as provided
for in this Agreement.
6.1 CONSULTANT shall hold periodic conferences with the Engineer or his or her
representatives to the end that the Project as developed shall have the full benefit of
CITY'S experience and knowledge of existing needs and facilities, and be consistent with
its current policies and standards. To assist CONSULTANT in this coordination, CITY
shall make available for CONSULTANT'S use in planning and designing the Project all
existing plans, maps, statistics, computations and other data in its possession relative to
existing facilities and to this particular Project, at no cost to CONSULTANT. However,
any and all such information shall remain the property of CITY and shall be returned by
Project Agreement for Engineering Services rev 05202014 Page 15
CONSULTANT upon termination or completion of the Project or if instructed to do so by
the Engineer.
6.2 The Engineer will act on behalf of CITY with respect to the Services to be performed
under this Agreement. The Engineer shall have complete authority to transmit
instructions, receive information, interpret and define CITY'S policies and decisions with
respect to materials, equipment, elements and systems pertinent to CONSULTANT'S
services.
63 CITY will give prompt written notice to CONSULTANT whenever CITY observes or
otherwise become aware of any defect in CONSULTANT'S Services, in the work of
CONSTRUCTION CONTRACTOR, or any development that affects the scope or timing
of CONSULTANT'S Services.
6.4 All appraisals, notices, and permits shall be furnished by CONSULTANT under the Scope
of Services unless otherwise assigned to CITY in the Scope of Services, Approvals and
permits assigned to CITY shall be obtained from all governmental authorities having
jurisdiction over the Project and such approvals and consents from others as may be
necessary for the completion of the Project. CONSULTANT will provide CITY
reasonable assistance in connection with such approvals and permits such as the
furnishing of data compiled by CONSULTANT pursuant to other provisions of this
Agreement, but CONSULTANT shall not be obligated to develop additional data, prepare
extensive reports or appear at hearings or the like unless compensated therefore under
other- provisions of this Agreement.
7.1 CONSULTANT shall make without expense to CITY such revisions to the drawings,
reports or other documents as may be required to meet the needs of CITY which are
within the Scope of Services, but after the approval of drawings, reports or other
documents and specifications by CITY. Any revisions, additions, or other modifications
made at CITY'S request which involve extra services and expenses to CONSULTANT
shall be at additional compensation to CONSULTANT for such additional Services and
expenses in accordance with Article 3 herein.
Project Agreement for Engineering Services rev 05202014 Page 16
8.1 All previously owned documents, including the original drawings, estimates,
specifications, and all other documents and data by CONSULTANT, will remain the
property of CONSULTANT as instruments of service. However, CONSULTANT
understands and agrees that CITY shall have free access to all such information with the
right to make and retain copies of previously owned drawings, estimates, specifications
and all other documents and data. Any reuse without specific written verification or
adaptation by CONSULTANT will be at CITY'S sole risk and without Liability or legal
exposure to CONSULTANT.
8.2 All completed documents submitted by CONSULTANT for final approval or issuance of
a permit shall bear the seal with signature and date adjacent thereto of a registered
professional engineer licensed to practice in the State of Texas.
8.3 CONSULTANT acknowledges and agrees that upon payment, CITY shall own
exclusively any and all information in whatsoever form and character produced and /or
maintained in accordance with, pursuant to, or as a result of this Agreement and shall be
used as CITY desires and documents, including the original drawings, estimates,
specifications and all other documents and data shall be delivered to CITY at no
additional cost to CITY upon request or termination or completion of this Agreement
without restriction on future use. However, any reuse without specific written verification
or adaptation by CONSULTANT will be at CITY'S sole risk and without liability to
CONSULTANT.
8.4 CONSULTANT agrees and covenants to protect any and all proprietary rights of CITY in
any materials provided to CONSULTANT, Such protection of proprietary rights by
CONSULTANT shall include, but not be limited to, the inclusion in any copy intended for
publication of copyright mark reserving all rights to CITY. Additionally, any materials
provided to CONSULTANT by CITY shall not be released to any third party without the
written consent of CITY and shall be returned intact to CITY upon termination or
completion of this Agreement or if instructed to do so by the Engineer.
Project Agreement for Engineering Services rev 05202014 Page 17
AGREEMENT CLAIM THAT MATERIALS OR WORK PROVIDED UNDER THIS
CONSTITUTE AN INFRINGEMENT OF ANY PATENT, TRADE
INTELLECTUAL SECRET, TRADEMARK, COPYRIGHT OR OTHER
F"ROPERTY RIGHTS.
8.6 CONSULTANT may make copies of any and all documents and items for its files.
CONSULTANT shall have no liability for changes made to or use of the drawings,
specifications and other documents by other engineers, or other persons, subsequent to the
completion of the Project. CONSULTANT shall appropriately mark all changes or
modifications on all drawings, specifications and other documents by other engineers or
other persons, including electronic copies, subsequent to the completion of the Project.
8.7 Copies of documents that may be relied upon by CITY are limited to the printed copies
(also known as hard copies) and .pdf- format electronic versions that are sealed and signed
by CONSULTANT. Files in editable electronic media format of text, data, graphics, or
other types (such as .dwg) that are furnished by CONSULTANT to CITY are only for
convenience of CITY or any utility. Any conclusion or information obtained or derived
from such electronic files will be at the user's sole risk. Any reuse without specific written
verification or adaptation by CONSULTANT will be at CITY'S sole risk and without
liability to CONSULTANT.
8.8 Notwithstanding anything to the contrary contained herein, all previously owned
intellectual property of CONSULTANT, unless expressly purchased by CITY, including
but not limited to any computer software (object code and source code), tools, systems,
equipment or other information used by CONSULTANT or its suppliers in the course of
delivering the Services hereunder, and any know -how, methodologies, or processes used
by CONSULTANT to provide the services or protect deliverables to CITY, including
without limitation, all copyrights, trademarks, patents, trade secrets, and any other
proprietary rights inherent therein and appurtenant thereto shall remain the sole and
exclusive property of CONSULTANT or its suppliers.
9.1 Right of Either Party to Tenninate for Default
9.1.1 This Agreement may be terminated by either party for substantial failure by the
other party to perform (through no fault of the terminating party) in accordance
with the terms of this Agreement and a failure to cure as provided in this Article
9.
9.1.2 The party not in default must issue a signed, written notice of termination (citing
this paragraph) to the other party declaring the other party to be in default and
stating the reason(s) why they are in default. Upon receipt of such written notice
of default, the party in receipt shall have a period of ten days to cure any failure to
perform under this Agreement. Upon the completion of such 10 -day period
commencing upon receipt of notice of termination, if such party has not Cured any
Project Agreement for Engineering Services rev 05202014 Page 18
failure to perform, such termination shall become effective without further written
notice.
9.2 Right of CITY to Terminate
9.2.1 CITY reserves the right to terminate this Agreement for reasons other than
substantial failure by CONSULTANT to perform by issuing a signed, written
notice of termination (citing this paragraph) which shall take effect on the
twentieth day following receipt of said notice or upon the scheduled completion
date of the performance Phase in which CONSULTANT is then currently
working, whichever effective termination date occurs first.
9.3 Right of CITY to Suspend Giving Rise to Right of CONSULTANT to Terminate
9.3.1 CITY reserves the right to suspend this Agreement at the end of any Phase for the
convenience of CITY by issuing a signed, written notice of suspension (citing this
paragraph) which shall outline the reasons for the suspension and the expected
duration of the suspension, but such expected duration shall in no way guarantee
what the total number of days of suspension will occur. Such suspension shall
take effect immediately upon receipt of said notice of suspension by
CONSULTANT.
9.3.1.1 CONSULTANT is hereby given the right to terminate this Agreement
in the event such suspension extends for a period in excess of 120 days.
CONSULTANT may exercise this right to terminate by issuing a
signed, written notice of termination (citing this paragraph) to CITY
after the expiration of 120 days from the effective date of the
suspension. Termination (under this paragraph) shall become effective
immediately upon receipt of said written notice by CITY.
9.4 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Termination
9.4.1 Upon receipt of a notice of termination and prior to the effective date of
termination, unless the notice otherwise directs or CONSULTANT immediately
takes action to cure a failure to perfonn under the cure period set out in this
Article. CONSULTANT shall immediately begin the phase -out and the
discontinuance of all services in connection with the performance of this
Agreement and shall proceed to promptly cancel all existing orders and contracts
insofar as such orders and contracts are chargeable to this Agreement. Within 30
days after receipt of such notice of termination (unless CONSULTANT has
successfully cured a failure to perform) CONSULTANT shall submit a statement
showing in detail the Services performed under this Agreement prior to the
effective date of tennination. CITY shall have the option to grant an extension to
the time period for submittal of such statement.
9.4.2 Copies of all completed or partially completed specifications and all
reproductions of all completed or partially completed designs, plans and
attachments prepared under this Agreement prior to the effective date of
Project Agreement for Engineering Services rev 05202014 Page 19
termination shall be delivered to CITY, in the form requested by CITY as a
precondition to final payment. These documents shall be subject to the restrictions
and conditions set forth in Article IX above.
9.4.3 Upon the above conditions being met, CITY shall promptly pay CONSULTANT
that proportion of the prescribed Compensation which the Services actually
performed under this Agreement bear to the total Services called for under this
Agreement, less previous payments of the Compensation.
9.4.4 CITY, as a public entity, has a duty to document the expenditure of public hinds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of CONSULTANT to comply with the
submittal of the statement and documents as required above shall constitute a
waiver by CONSULTANT of any and all rights or claims for compensation for
services performed under this Agreement by CONSULTANT.
9.4.5 Failure of CONSULTANT to comply with the submittal of the statement and
documents as required above shall constitute a waiver by CONSULTANT of any
and all rights or claims to collect monies that CONSULTANT may otherwise be
entitled to for services performed under this Agreement.
9.5 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Suspension
9.5.1 Upon receipt of written notice of suspension, which date shall also be the
effective date of the suspension, CONSULTANT shall, unless the notice
otherwise directs, immediately begin to phase -out and discontinue all services in
connection with the performance of this Agreement and shall proceed to promptly
suspend all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement.
9.5.2 CONSULTANT shall prepare a statement showing in detail the Services
performed under this Agreement prior to the effective date of suspension.
9.5.3 Copies of all completed or partially completed designs, plans, and specifications
prepared under this Agreement prior to the effective date of suspension shall be
prepared for possible delivery to CITY but shall be retained by CONSULTANT
until such time as CONSULTANT may exercise the right to terminate.
9.5.4 In the event that CONSULTANT exercises the right to terminate 120 days after
the effective suspension date, within 30 days after receipt by CITY of
CONSULTANT'S notice of termination, CONSULTANT shall promptly cancel
all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement and shall submit the above referenced statement
showing in detail the services performed under this Agreement prior to the
effective date of suspension.
9.5.5 Any documents prepared in association with this Agreement shall be delivered to
CITY as a precondition to final payment.
Project Agreement for Engineering Services rev OS202014 Page 20
9.5.6 Upon the above conditions being met, CITY shall pay CONSULTANT that
proportion of the prescribed Compensation which the Services actually performed
under this Agreement bear to the total Services called for under this Agreement,
less previous payments of Compensation.
9.5.7 CITY, as a public entity, has a duty to document the expenditure of public fiends.
CONSULTANT acknowledges this duty on the part of CITY, To this end,
CONSULTANT understands that failure of Consultant to substantially comply
with the submittal of the statements and documents as required herein shall
constitute a waiver by CONSULTANT of any portion of the Compensation for
which CONSULTANT did not supply such necessary statements and /or
documents.
10.1 CONSULTANT warrants that it has not employed or retained any company or person
other than a bona fide employee working solely for CONSULTANT to solicit or secure
this Agreement, and that it has not, for the purpose of soliciting or securing this
Agreement, paid or agreed to pay any company or person, commission, percentage,
brokerage fee, gift, or any other consideration, contingent upon or resulting from the
award or making of this Agreement. For breach of this warranty, CITY shall have the
right to terminate this Agreement under the provisions of Article 9 above.
11.1 CONSULTANT shall not assignor transfer its interest in this Agreement without the prior
written consent of CITY.
i III 11i
12.1 Prior to the commencement of any Services under this Agreement, CONSULTANT shall
famish copies of all required endorsements and an original completed Certificate(s) of
Insurance to CITY'S Engineering Department, which shall be clearly identified with the
name of the Project in the Description of Operations block of the Certificate. The original
Certificate(s) shall be completed by an agent and signed by a person authorized by that
insurer to bind coverage on its behalf. CITY will not accept Memorandum of Insurance or
Binders as proof of insurance. The original certificate(s) or form must have the agent's
original signature, including the signer's company affiliation, title and phone number, and
be mailed, with copies of all applicable endorsements, directly from the insurer's
authorized representative to CITY. CITY shall have no duty to pay or perform under this
Agreement until such certificate and endorsements have been received and approved by
CITY'S Engineering Department. No officer or employee other than CITY'S Risk
Manager shall have authority to waive this requirement.
Project Agreement for Engineering Services rev 05202014 Page 21
circumstances surrounding this contract. In no instance will CITY allow modification
whereupon CITY may incur increased risk.
12.3 CONSULTANT'S financial integrity is of interest to CITY. Therefore, subject to
CONSULTANT'S right to maintain reasonable deductibles in such amounts as are
approved by CITY, CONSULTANT shall obtain and maintain in firll force and effect for
the duration of this Agreement, and any extension hereof, at CONSULTANT'S sole
expense, insurance coverage written on an occurrence or claims made basis, as
appropriate, by companies authorized and approved to do business in the State of Texas
and with an A.M. Best's rating of no less than A- (VII), in the following types and for an
amount not less than the amount listed:
INSURANCE REQUIREMENTS
Worker's Compensation'
Employer's Liability
Commercial General (Public) Liability
insurance to include coverage for the
following:
a. Premises Operations
b. Independent Contractors"
c. Products /Completed Operations
d. Personal Injury
e. Contractual Liability
Business Automobile Liability
a. Owned /Leased Vehicles
b. Non -owned Vehicles
c. Hired Vehicles
Professional Liability (Claims Made Form)
Statutory
$1,000,000,000/$1,000,000,000 /$1,000,000,000
For Bodily Injury and Property Damage of
$1,000,000 per occurrence.
$2,000,000 General Aggregate, or its equivalent
in Umbrella or Excess Liability Coverage
Combined Single Limit for Bodily Injury and
property Damage of $1,000,000 per occurrence
$1,000,000 per claim to pay on behalf of the
insured all sums, which the insured shall
become legally obligated to pay as damages to
the extent caused by any negligent act, error, or
omission in the performance of professional
services.
"Alternate Plans must be approved by CITY'S Risk Manager
" "If applicable
Project Agreement for Engineering Services rev 05202014 Page 22
policies). CONSULTANT shall attempt to comply with any such requests, subject to the
policy terns and conditions, and shall submit a copy of the replacement certificate of
insurance to CITY at the address provided below within 10 days of the requested change,
in the event the respective insurance companies approve the requested change(s).
CONSULTANT shall pay any costs incurred resulting from said changes.
City of Schertz
Attn: City Engineer
10 Commercial Place
Schertz, TX 78154
12.5 CONSULTANT agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
12.5.1 Name CITY and its officers, officials, employees, and elected representatives as
additional insured's by endorsement, as respects operations and activities of, or on
behalf of, the named insured performed under contract with CITY, with the
exception of the workers' compensation and professional liability policies;
12.5.2 Provide for an endorsement that the "other insurance" clause shall not apply to the
CITY where CITY is an additional insured shown on the policy if such
endorsement is permitted by law and regulations;
12.5.3 Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of CITY; and
12.5.4 Provide 30 calendar days advance written notice directly to CITY of any
suspension, cancellation or non- renewal or material change in coverage, and not
less than 10 calendar days advance written notice for nonpayment of premium,.
12.6 Within five calendar days after a suspension, cancellation or non - renewal of coverage,
CONSULTANT shall provide a replacement Certificate of Insurance and applicable
endorsements to CITY. CITY shall have the option to suspend CONSULTANT'S
performance should there be a lapse in coverage at any time during this Agreement.
Failure to provide and to maintain the required insurance shall constitute a material breach
of this Agreement.
12.7 If CONSULTANT fails to maintain the aforementioned insurance, or fails to secure and
maintain the aforementioned endorsements, CITY may obtain such insurance, and deduct
and retain the amount of the premiums for such insurance from any sums due under the
agreement; however, procuring of said insurance by CITY is an alternative to other
remedies CITY may have and is not the exclusive remedy for failure of CONSULTANT
to maintain said insurance or secure such endorsement. In addition to any other remedies
CITY may have upon CONSULTANT'S failure to provide and maintain any insurance or
policy endorsements to the extent and within the time herein required, CITY shall have
the right to order CONSULTANT to stop performing services hereunder and/or withhold
any payment(s) which become due to CONSULTANT hereunder until CONSULTANT
demonstrates compliance with the requirements hereof.
Project Agreement for Engineering Services rev 05202014 Page 23
12.8 Nothing herein contained shall be construed as limiting in any way the extent to which
CONSULTANT may be held responsible for payments of damages to persons or property
resulting from CONSULTANT'S or its subconsultant's performance of the Services
covered under this Agreement.
12.9 It is agreed that CONSULTANT'S insurance shall be deemed primary with respect to any
insurance or self insurance carried by CITY for liability arising out of operations tinder
this Agreement.
12.10 It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this Agreement as respects additional insured's.
1 3H,WMENKM1 [MROHNUGNMARI
13.2 CONSULTANT shall advise CITY in writing within 24 hours of any claim or demand
against CITY or CONSULTANT, known to CONSULTANT, related to or arising out of
CONSULTANT'S activities under this Agreement.
Project Agreement for Engineering Services rev 05202014 Page 24
13.3 The provisions of Article 13 are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or
entity.
13.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
14.1 Definition. A Claim is a demand or assertion by one of the patties seeking, as a matter of
right, adjustment or interpretation of this Agreement's terms, payment of money, and
extension of time or other relief with respect to the terms of this Agreement, The term
"Claim" also includes other disputes and matters in question between OWNER and
CONSULTANT arising out of or relating to this Agreement. Claims must be initiated by
written notice. Every Claim of CONSULTANT, whether for additional Compensation,
additional time, or other relief, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind
CONSULTANT by signature) of CONSULTANT, verifying the truth and accuracy of the
Claim. The responsibility to substantiate Claims shall rest with the patty making the
Claim.
14.2 Time Limit on Claims. Claims by CONSULTANT or by OWNER must be initiated
within 30 calendar days after occurrence of the event giving rise to such Claim. Claims by
CONSULTANT must be initiated by written notice to OWNER. Claims by the OWNER
must be initiated by written notice to CONSULTANT.
14.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise
agreed in writing, CONSULTANT shall proceed diligently with performance of this
Agreement and OWNER shall continue to make payments in accordance with this
Agreement.
14.4 Claims for Additional Time, If CONSULTANT wishes to make Claim for an increase in
the time for performance, written notice as provided in this Article 14 shall be given.
CONSULTANT'S Claim shall include an estimate of probable effect of delay on progress
of the Work. In the case of a continuing delay only one Claim is necessary.
14.5 Claims for Consequential Damages. Except as otherwise provided in this Agreement, in
calculating the amount of any Claim or any measure of damages for breach of contract
(such provision to survive any termination following such breach), the following
standards will apply both to claims by CONSULTANT and to claims by OWNER:
14.5.1 No consequential damages will be allowed.
Project Agreement for Engineering Services rev 05202014 Page 25
14.5.2 Damages are limited to extra costs specifically shown to have been directly
caused by a proven wrong for which the other party is claimed to be responsible.
14.5.3 No profit will be allowed on any damage claim.
14.6 No Waiver of Governmental Immunity. NOTHING IN THIS AGREEMENT SHALL
BE CONSTRUED TO WAIVE OWNER'S GOVERNMENTAL IMMUNITY
FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE
EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE
LAW.
15.1 If for any reason, any one or more paragraphs of this Agreement are held invalid or
unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the
remaining paragraphs of this Agreement but shall be confined in its effect to the specific
section, sentences, clauses or parts of this Agreement held invalid or unenforceable, and
the invalidity or unenforceability of any section, sentence, clause or parts of this
Agreement in any one or more instance shall not affect or prejudice in any way the
validity of this Agreement in any other instance.
I 9'
16.1 Since CONSULTANT has no control over the cost of labor, materials, or equipment or
over CONSTRUCTION CONTRACTOR'S methods of determining prices, or over
competitive bidding or market conditions, CONSULTANT'S opinions of probable Project
Cost or Constriction Cost provided for herein are to be made on the basis of
CONSULTANT'S experience and qualifications and represent CONSULTANT'S best
judgment as a design professional familiar with the construction industry but
CONSULTANT cannot and does not guarantee that bids or the constriction cost will not
vary from opinions of probable Cost prepared by CONSULTANT.
17.1 No officer or employee of CITY shall have a financial interest, directly or indirectly, in
any contract with CITY, or shall be financially interested, directly or indirectly, in the sale
to CITY of any land, materials, supplies or service, except on behalf of CITY as an officer
or employee. This prohibition extends to other CITY boards and connnissions, which are
more than purely advisory. The prohibition also applies to subcontracts on CITY projects.
17.2 CONSULTANT acknowledges that it is informed that the Charter of CITY prohibits a
CITY officer or employee, as those terms are defined in the Ethics Code, from having a
financial interest in any contract with CITY or any CITY agency.
Project Agreement for Engineering Services rev 05202014 Page 26
18.1 All consultants must disclose if it is associated in any manner with a CITY official or
employee in a business venture or business dealings. To be "associated" in a business
venture or business dealings includes being in a partnership or joint venture with the
officer or employee, having a contract with the officer or employee, being joint owners of
a business, owning at least 10% of the stock in a corporation in which a CITY officer or
employee also owns at least 10 %, or having an established business relationship as client
or customer.
19.1 Services provided by CONSULTANT under this Agreement will be performed in a
manner consistent with that degree of care and skill ordinarily exercised by members of
the same profession currently practicing under similar circumstances.
19.2 CONSULTANT shall be represented by a registered professional engineer licensed to
practice in the State of Texas at meetings of any official nature concerning the Project,
including but not limited to scope meetings, review meetings, pre -bid meetings, and
preconstruction meetings.
19.3 The Texas Board of Professional Engineers, 1917 IH -35 South, Austin, Texas 78741,
(512) 440 -7723 has jurisdiction over individuals licensed under Title 22 of the Texas
Administrative Code.
19.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents, or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
20.1 CONSULTANT agrees that CITY may review any and all of the work performed by
CONSULTANT UNDER THIS Agreement. CITY is granted the right to audit, at
CITY'S election, all of CONSULTANT'S records and billings related to performance of
this Agreement. CONSULTANT agrees to retain such records for a minimum of four
years following completion of this Agreement. Any payment, settlement, satisfaction, or
release provided under this Agreement shall be subject to CITY'S rights as may be
disclosed by such audit.
21.1 This Agreement, together with Attachments 1, 2, 3, and 4, represents the entire and
integrated agreement between CITY and CONSULTANT and supersedes all prior
Project Agreement for Engineering Services rev 05202014 Page 27
negotiations, representations, or agreements, either oral or written. This Agreement may
be amended only by written instrument signed by both CITY and CONSULTANT.
ARTICLE 22: VENUE
22.1 The obligations of the parties to this Agreement shall be performable in the City of
Schertz or its Extra Territorial Jurisdiction, located in Bexar, Comal, and Guadalupe
Counties, Texas, and if legal action, such as civil litigation, is necessary in connection
therewith, exclusive venue shall lie in Guadalupe County, Texas.
Fit IN V
23.1 Except as may be provided elsewhere herein, all notices, communications, and reports
required or permitted under this Contract shall be personally delivered or mailed to the
respective party by depositing the same in the United States Postal Service addressed to
the applicable address shown below, unless and until either party is otherwise notified in
writing by the other parry of a change of such address. Mailed notices shall be deemed
communicated as of five calendar days of mailing. Notices provided via email shall be
deemed communicated as of the next business day after the notice is sent.
If intended for CITY, to:
If intended for CONSULTANT, to
City of Schertz
Engineering Department
10 Commercial Place
Schertz, Texas 78154
The address listed on the first page of this
Agreement.
24.1 In performing services under this Agreement, the relationship between CITY and
CONSULTANT is that of independent contractor. By the execution of this Agreement,
CONSULTANT and CITY do not change the independent contractor status of
CONSULTANT. CONSULTANT shall exercise independent judgment in performing its
duties and obligations under this Agreement and is solely responsible for setting working
hours, scheduling or prioritizing the work flow and determining how the Services are to be
perfonned. No term or provision of this Agreement or act of CONSULTANT in the
performance of this Agreement shall be construed as malting CONSULTANT the agent,
servant or employee of CITY, or as making CONSULTANT or any of its agents or
employees eligible for any fringe benefits, such as retirement, insurance and worker's
compensation, which CITY provides to or for its employees.
25.1 The captions for the individual provisions of this Agreement are for informational
purposes only and shall not be construed to effect or modify the substance of the terms
and conditions of this Agreement to which any caption relates.
Project Agreement for Engineering Services rev 05202014 Page 28
IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Agreement
effective as of , 20 (the "Effective Date ").
CITY OF SCIIERTZ CONSULTANT
CITY MANAGER
CWnsultffnt Name
TITLE
Project Agreement for Engineering Services rev OS202014 Page 29
ATTACHMENT I
To be completed upon project
Project Agreement for Engineering Services rev 05202014 Page 30
ATTACHMENT 2
To be completed upon project assignment.
Project Agreement for Engineering Services rev 05202014 Page 31
ATTACHMENT 3
EXPLANATION OF PROJECT FEE
To be completed upon project assignment.
Project Agreement for Engineering Services rev 05202014 Page 32
ATTACHMENT 4
To be completed upon project assignment.
Project Agreement for Engineering Services rev 05202014 Page 33
May 22, 2014
Cindy Raleigh
Public Works Coordinator
City of Schertz
10 Commercial Place, Building 2
Schertz, TX 78154
Lockwood, Andrews
& Newnam, Inc.
A LEO A DALY COMPANY
RE: On Call Engineering Services — Fee Schedule
Dear Ms. Raleigh:
Lockwood Andrews & Newnam, Inc. is please to submit the following unit rate schedule for the
On Call Engineering Services contract for the City of Schertz. We appreciate this opportunity and
look forward to working with the City of Schertz.
Job Description
Maximum
Base Rate
Principal /QAQC Manager
$220.00
Senior Project Manager
$190.00
Project Manager
$175.00
Sr. Project Engineer
$150.00
Project Engineer
$130.00
Engineer In Training III
$125.00
Engineer In Training II
$95.00
Construction Field Representative
$95.00
CADD Designer II
$85.00
Administrative Assistant
$65.00
The above rates are for this year and will be adjusted in accordance with City of Schertz contract
requirements for upcoming fiscal years. If you have any questions or require additional
information, please call me at 210- 499 -5082.
Sincerely,
Jeremy Doege, PE
Associate/ Team Leader
Cc: Kathryn J. Woodlee, PE, CFM
c: \projectwise \jsdoege2 \cl0213390 \2014 city of schertz on call engineering fee schedule. doc
10101 Reunion Place, Ste 200 • San Antonio, Texas 78216 • 210.499.5082 • Fax: 210.499.5157 • www.lan- inc.com
Agenda No. 5
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department: Engineering
Subject: Resolution No. 14 -R -57 — A Resolution of
the City Council of the City of Schertz,
Texas authorizing and approving a
Professional Services Agreement with Pape -
Dawson Engineers, Inc. for On -Call
Engineering Services and all matters in
connection therewith
BACKGROUND
The City of Schertz advertised for Request for Qualifications for On -Call Engineering Firms in
February 2014. Statements of Qualifications were received by the City of Schertz on March 18,
2014. Statements were received from 26 firms. A panel of five City Staff and Management
representatives reviewed each of the documents submitted in detail. The submittals were evaluated
for the following criteria:
1. Understanding of the requirement;
2. Management ability;
3. Commitment to quality;
4. Qualifications and experience of key personnel;
5. Resources and facilities;
6. Relevant prior experience; and
7. Past performance, particularly with City contracts.
The panel met on several occasions to discuss the submittals and come to consensus regarding six
firms to be invited for personal interviews.
Interviews were held with the firms at the end of April. The panel again met to discuss results of the
interviews.
It is recommended that the City award On Call Engineering Services Agreements to the following
consulting engineering firms:
• Cobb, Fendley & Associates, Inc.
• Ford Engineering, Inc.
• Lockwood, Andrews & Newman, Inc.
• Pape- Dawson Engineers, Inc.
Having this group of firms available for consultation allows the City to utilize the most qualified firm
for each particular project based on the particular engineering qualifications and experience.
The agreements for On -Call Engineering Services will remain in force for three years with two
optional one -year extensions.
Once a project is identified and consulting services are needed, Staff will identify which of the four
on -call firms is best suited for the project. A proposed scope, fee, and schedule will be requested and
a project - specific agreement will be negotiated with that firm. The award of the On -Call Agreement
allows the City to avoid an RFQ process for every project — small or large — and to enter into a
contract with a firm already fully vetted and deemed to be best qualified for the project. Staff will
also be able to request assistance with general engineering services such as plan review, standard
detail and specification development, design services needed for maintenance or rehabilitation
projects for which City personnel will perform the construction work.
Goal:
Approve Resolution 14 -R -57 approving a three -year Professional Services Agreement for On -Call
Engineering with Pape- Dawson Engineering, Inc.
Community Benefit:
The City will be able to utilize the most qualified firm for each particular project based on the firms
qualifications and experience, resulting in an effective and efficient project process to insure that the
citizens and businesses of Schertz are provided with top -notch facilities and services.
Summary of Recommended Action:
Approve Resolution 14 -R -57 approving a three -year Professional Services Agreement with Pape -
Dawson Engineering, Inc.
FISCAL IMPACT
Fiscal impact will vary with particular projects and the use of a specific firm and their fee schedule as
outlined in the Professional Service Agreement.
STAFF RECOMMENDATION
Staff recommends approval of Resolution 14 -R -57
ATTACHMENT(S)
Resolution 14 -R -57
RESOLUTION NO. 14 -R -57
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AND APPROVING A
PROFESSIONAL SERVICES AGREEMENT WITH PAPE - DAWSON
ENGINEERS, INC. FOR ON -CALL ENGINEERING SERVICES AND
ALL MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has determined that the City
requires a professional services agreement with Pape- Dawson Engineers, Inc. relating to on -call
engineering services for the City; and
WHEREAS, City staff has determined that Pape- Dawson Engineers, Inc. is qualified to
provide such services for the City; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Pape- Dawson Engineers, Inc. pursuant to the Professional Services Agreement for
Engineering Services attached hereto as Exhibit A (the "Agreement ").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Pape- Dawson Engineers, Inc. in substantially the form set forth on
Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 1St day of July, 2014.
CITY OF SCHERTZ, TEXAS
Michael Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(CITY SEAL)
50506887.1
EXHIBIT A
SECOND AMENDMENT TO AGREEMENT FOR ENGINEERING SERVICES
50506887.1 A -1
CITY OF SCHERTZ
ON CALL ENGINEERING SERVICES MASTER AGREEMENT
THE STATE OF TEXAS §
GUADALUPE COUNTY
This On Call Engineering Services Agreement (Agreement) is made and entered into by and
between the City of Schertz, Texas (City), a Texas municipality, and Pape- Dawson
Engineers (Professional).
Section 1. Duration. This Agreement shall become effective upon the date executed
below and shall remain in effect for a period of three years from its execution unless
terminated as provided for herein.
This Agreement may be extended if approved by the City Council for a period of one year.
A maximum of two extensions may be made.
This Agreement shall remain in force automatically beyond the effective term for a period
which may reasonably be required for the satisfactory completion of a project which is
already underway at the time of term expiration unless otherwise terminated as provided for
herein.
Section 2. Scope of Work.
(A) In consideration of the Professional's three year authority to provide the Services
provided for herein, and other consideration the sufficiency and receipt of which is hereby
acknowledged, the Professional shall provide on -call engineering services to the City for
purposes of general consulting, design, bid, and construction phase services the City of
Schertz to include:
1. Water Transmission and distribution
2. Wastewater collection and conveyance
3. Streets, drainage and site work
Projects for which services will be needed may include new infrastructure, miscellaneous
improvements, modifications, and upgrades to existing facilities, which will require a Scope
of Services to be provided by a qualified consultant(s) or consulting firm(s) or team.
(B) The Professional shall provide plans, technical specifications, bid and construction
phase support, and other related services, as requested, not limited to:
1. General Service including presentations at meetings and other Professional
services as requested.
On Call Engineering Services Master Agreement Pape- Dawson 2014 Page 1 of 6
2. Design services including field surveys, testing, design concepts. providing
probable construction costs, document progress intervals, provide detailed plans
and specifications, and other related services to design the project and prepare it to
bid.
3. Prepare documents for, and coordinate with other utilities and associated
local, state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits.
4. During construction phase, provide construction stakes as requested,
prepare change orders, specifications and documentation, make recommendations
on Contractor change order requests, attend progress meetings and monitor
construction schedule, provide observation and owner representation during
construction, review and process all submittals, recommend substantial completion
of the project, prepare record drawings, perform final inspection and report on final
completion of the project.
The provisions of Service required shall be referred to herein as the "Scope of
Work ".
(C) The quality of Services provided under this Agreement shall be of the level of
professional quality performed by Professionals regularly rendering this type of
service.
(D) The Professional shall perform its Services for the Project in compliance with
all statutory, regulatory and contractual requirements now or hereafter in effect as
may be applicable to the rights and obligations set forth in the Agreement.
(E) The Professional may rely upon the accuracy of reports and surveys provided
by the City except when defects should have been apparent to a reasonably
competent professional or when it has actual notice of any defects in the reports and
surveys.
(F) The Professional shall be required to execute a project contract in
substantially the same form as the attached "Exhibit A" for each assigned Scope of
Services project.
Section 3. Compensation. The Professional shall be compensated pursuant to
the agreed upon fee schedule which shall be "Exhibit B" to this Agreement.
Section 4. Time of Completion. The prompt completion of the services relating to
any Scope of Work is critical to the City. Unnecessary delays in providing services
under the Scope of Work shall be grounds for dismissal of the Professional and
termination of this Agreement without any or further liability to the City other than a
prorated payment for necessary, timely, and conforming work done by Professional
prior to the time of termination. The Scope of Work shall provide, in either calendar
On Call Engineering Services Master Agreement Pape- Dawson 2014 Page 2 of 6
days or by providing a final date, a time of completion prior to which the Professional
shall have completed all tasks and services described in the Scope of Work.
Section 5. Additional Provisions.
(A) Subletting. The Professional shall not sublet or transfer any portion of the
work under this Agreement or any Scope of Work issued pursuant to this Agreement
unless specifically approved in writing by the City.
(B) Compliance with Laws. The Professional shall comply with all federal, state
and local laws, statutes, ordinances, rules and regulations, and the orders and
decrees of any courts, administrative, or regulatory bodies in any matter affecting
the performance of this Agreement, including, without limitation, worker's
compensation laws, minimum and maximum salary and wage statutes and
regulations, and licensing laws and regulations. When required, the Professional
shall furnish the City with satisfactory proof of compliance.
(C) Independent Contractor. Professional acknowledges that Professional is an
independent contractor of the City and is not an employee, agent, official or
representative of the City. Professional shall not represent, either expressly or
through implication, that Professional is an employee, agent, official or
representative of the City. Income taxes, self - employment taxes, social security
taxes and the like are the sole responsibility of the Professional.
(D) Non - Collusion. Professional represents and warrants that Professional has
not given, made, promised or paid, nor offered to give, make, promise or pay any
gift, bonus, commission, money or other consideration to any person as an
inducement to or in order to obtain the work to be provided to the City under this
Agreement. Professional further agrees that Professional shall not accept any gift,
bonus, commission, money, or other consideration from any person (other than from
the City pursuant to this Agreement) for any of the services performed by
Professional under or related to this Agreement. If any such gift, bonus,
commission, money, or other consideration is received by or offered to Professional,
Professional shall immediately report that fact to the City and, at the sole option of
the City, the City may elect to accept the consideration for itself or to take the value
of such consideration as a credit against the compensation otherwise owing to
Professional under or pursuant to this Agreement.
(E) In the case of any conflicts between the terms of this Agreement and wording
contained within the Scope of Services, this Agreement shall govern. The Scope of
Services is intended to detail the technical scope of services, fee schedule, and
contract time only and shall not dictate Agreement terms.
On Call Engineering Services Master Agreement Pape- Dawson 2014 Page 3 of 6
Section 6. Termination.
(A) This Agreement may be terminated:
1. By the mutual agreement and consent of both Professional and City;
2. By the City, immediately upon notice in writing to the Professional, as
consequence of the failure of Professional to perform the services contemplated by
this Agreement in a timely or satisfactory manner;
3. By the City, at will and without cause upon not less than thirty (30) days
written notice to the Professional.
Section 7. Indemnification. Professional agrees to indemnify and hold the
City of Schertz, Texas and all of its present, future and former agents,
employees, officials and representatives harmless in their official, individual
and representative capacities from any and all claims, demands, causes of
action, judgments, liens and expenses (including attorney's fees, whether
contractual or statutory), costs and damages (whether common law or
statutory), costs and damages (whether common law or statutory, and
whether actual, punitive, consequential or incidental), of any conceivable
character, for injuries to persons (including death) or to property (both real
and personal) created by, arising from or in any manner relating to the
services or goods performed or provided by Professional — expressly
including those arising through strict liability or under the constitutions of the
United States or Texas — BUT ONLY TO THE EXTENT ALLOWABLE BY SEC.
271.904(a) OF THE TEXAS LOCAL GOVERNMENT CODE AS APPLICABLE.
Section 8. Notices. Any notice required or desired to be given from one party to
the other party to this Agreement shall be in writing and shall be given and shall be
deemed to have been served and received (whether actually received or not) if (i)
delivered in person to the address set forth below; (ii) deposited in an official
depository under the regular care and custody of the United States Postal Service
located within the confines of the United States of America and sent by certified
mail, return receipt requested, and addressed to such party at the address
hereinafter specified; or (iii) delivered to such party by courier receipted delivery.
Either party may designate another address within the confines of the continental
United States of America for notice, but until written notice of such change is
actually received by the other party, the last address of such party designated for
notice shall remain such party's address for notice.
Section 9. No Assignment. Neither party shall have the right to assign that party's
interest in this Agreement without the prior written consent of the other party.
On Call Engineering Services Master Agreement Pape- Dawson 2014 Page 4 of 6
Section 10. Severability. If any term or provision of this Agreement is held to be
illegal, invalid or unenforceable, the legality, validity or enforceability of the
remaining terms or provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable term or provision, there shall be
added automatically to this Agreement a legal, valid or enforceable term or provision
as similar as possible to the term or provision declared illegal, invalid or
unenforceable.
Section 11. Waiver. Either City or the Professional shall have the right to waive
any requirement contained in this Agreement that is intended for the waiving party's
benefit, but, except as otherwise provided herein, such waiver shall be effective only
if in writing executed by the party for whose benefit such requirement is intended.
No waiver of any breach or violation of any term of this Agreement shall be deemed
or construed to constitute a waiver of any other breach or violation, whether
concurrent or subsequent, and whether of the same or of a different type of breach
or violation.
Section 12. Governing Law; Venue. This Agreement and all of the transactions
contemplated herein shall be governed by and construed in accordance with the
laws of the State of Texas. The provisions and obligations of this Agreement are
performable in Guadalupe County, Texas such that exclusive venue for any action
arising out of this Agreement shall be in Guadalupe County, Texas.
Section 13. Paragraph Headings; Construction. The paragraph headings
contained in this Agreement are for convenience only and shall in no way enlarge or
limit the scope or meaning of the various and several paragraphs hereof. Both
parties have participated in the negotiation and preparation of this Agreement and
this Agreement shall not be construed either more or less strongly against or for
either party.
Section 14. Binding Effect. Except as limited herein, the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, devisees, personal and legal representatives, successors
and assigns.
Section 15. Gender. Within this Agreement, words of any gender shall be held
and construed to include any other gender, and words in the singular number shall
be held and construed to include the plural, unless the context otherwise requires.
Section 16. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
On Call Engineering Services Master Agreement Pape- Dawson 2014 Page 5 of 6
Section 17. Entire Agreement. It is understood and agreed that this Agreement
contains the entire agreement between the parties and supersedes any and all prior
agreements, arrangements or understandings between the parties relating to the
subject matter. No oral understandings, statements, promises or inducements
contrary to the terms of this Agreement exist. This Agreement cannot be changed
or terminated orally.
Section 18. Disclosure of Business Relationships/Affiliations; Conflict of
Interest Questionnaire. Professional represents that it is in compliance with the
applicable filing and disclosure requirements of Chapter 176 of the Texas Local
Government Code.
EXECUTED on this the day of
CITY:
By:
Name: John C. Kessel
Title: City Manager
ADDRESS FOR NOTICE:
CITY
City of Schertz
Attn: John C. Kessel, City Manager
1400 Schertz Parkway
Schertz, Texas 78154
with a copy to:
City Attorney
City of Schertz, Texas
Attn: Charles E. Zech
2517 N. Main Avenue
San Antonio, Texas 78212
12014
PROFE SI N
By: _
Name:
Title:
PROFESSIONAL
On Call Engineering Services Master Agreement Pape- Dawson 2014 Page 6 of 6
EXHIBIT A
CITY OF SCHERTZ
PROJECT AGREEMENT FOR ENGINEERING SERVICES
This Agreement is entered into in the City of Schertz, Texas, between the City of Schertz, a
Texas municipal corporation, hereinafter called "CITY" and /or "OWNER ", and CONSULTANT
NAME AND ADDRESS.
Engineer(s), duly licensed, and practicing under the laws of the State of Texas, hereinafter called
"CONSULTANT ", this Agreement being executed by City pursuant to appropriate action by the
City Council of CITY and by CONSULTANT, for engineering services hereinafter set forth in
connection with the above designated Project for CITY.
ARTICLE 1
DEFINITIONS
ARTICLE 2
SCOPE OF SERVICES
ARTICLE 3
COMPENSATION FOR SERVICES
ARTICLE 4
METHOD OF PAYMENT
ARTICLE 5
TIME, SCHEDULE, AND PERIOD OF SERVICE
ARTICLE 6
COORDINATION WITH CITY
ARTICLE 7
REVISIONS TO DRAWINGS AND SPECIFICATIONS
ARTICLE 8
OWNERSHIP OF DOCUMENTS
ARTICLE 9
TERMINATION AND /OR SUPENSION OF WORK
ARTICLE 10
CONSULTANT'S WARRANTY
ARTICLE 11
ASSIGNMENT OR TRANSFER OF INTEREST
ARTICLE 12
INSURANCE REQUIREMENTS
ARTICLE 13
INDEMNIFICATION
ARTICLE 14
CLAIMS AND DISPUTES
ARTICLE 15
SEVERABILITY
ARTICLE 16
ESTIMATES OF COST
ARTICLE 17
INTEREST IN CITY CONTRACTS PROHIBITED
ARTICLE 18
CONFLICTS OF INTEREST DISCLOSURE
ARTICLE 19
STANDARD OF CARE
ARTICLE 20
RIGHT OF REVIEW AND AUDIT
ARTICLE 21
ENTIRE AGREEMENTS
ARTICLE 22
VENUE
ARTICLE 23
NOTICES
ARTICLE 24
INDEPENDENT CONTRACTOR
ARTICLE 25
CAPTIONS
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
ATTACHMENT 2
PROJECT DESIGN PHASES COST AND TIMELINE
ATTACHMENT 3
EXPLANATION OF PROJECT FEE
ATTACHMENT 4
ADDITIONAL PROJECTS AND /OR EXPANDED SCOPE
OF SERVICES
Project Agreement for Engineering Services rev 05202014 Page 1
ARTICLE 1: DEFINITIONS
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE MEANINGS
AS SET OUT BELOW:
Agreement means this Master Agreement between CITY and CONSULTANT that
establishes the terms and conditions for all Projects to be carried out under this
Agreement. ,
Application for Compensation means the form CONSULTANT uses to make a request
to be paid for completed services.
Application for Payment means the form CONSTRUCTION CONTRACTOR uses to
make a request to be paid for completed work.
Certificate for Payment means the form CONSULTANT uses to make
recommendations on CONSTRUCTION CONTRACTOR'S Application for Payment.
CITY means the City of Schertz, Texas.
Claim means a demand or assertion by one of the parties seeking, as a matter of right,
adjustment, or interpretation of the terms of this Agreement, payment of money,
extension of time, or other relief with respect to the terms of this Agreement. The term
"claim" also includes other disputes and matters in question between the OWNER and
CONSULTANT arising out of or relating to this Agreement.
Compensation means amounts paid by CITY to CONSULTANT for completed services
under this Agreement.
CONSTRUCTION CONTRACTOR means the firm hired by CITY to construct the
Project.
Construction Contract Documents means the contract between the CITY and the firm
contracted by CITY to construct the Project and all documents therein.
CONSULTANT means the entity named on the cover page of this Agreement and its
officers, partners, employees, agents, and representatives, and all its subconsultants, if
any, and all other persons or entities for which CONSULTANT is legally responsible.
ENGINEER means CITY's City Engineer.
Final Compensation means the final amounts paid by CITY to CONSULTANT for
completed services under this Agreement.
Final Payment means the final amounts paid by CITY to CONSTRUCTION
CONTRACTOR for completed work under the construction contract.
Project Agreement for Engineering Services rev 05202014 Page 2
Opinion of Probable Construction Cost means CONSULTANT'S estimate of probable
construction cost for a Project based on its experience and qualifications as a practitioner
of its profession and the current costs in the local area.
OWNER means the City of Schertz, Texas.
Payment means amount paid by CITY to CONSTRUCTION CONTRACTOR for work
performed under the Construction Contract Documents.
Plans and Specifications means the construction documents.
Project means the capital improvement /construction development undertaking of CITY
for which CONSULTANT'S services, as stated in the Scope of Services, and to be
provided pursuant to this Agreement.
Proposal means CONSULTANT'S proposal to provide services for the Project.
Schedule of Values means the fees allocated to services, reimbursable and /or various
portions of the services or Work, prepared in such form, and supported by such data to
substantiate its accuracy as OWNER may require.
Scope of Services means the services described in Article 4, Scope of Services.
Services means professional services performed by CONSULTANT.
Total Compensation means the amount paid to CONSULTANT under Article 2,
Compensation for Basic Services, of this Agreement.
Work means the labor and materials required to complete a Project by
CONSTRUCTION CONTRACTOR in accordance with the Construction Contract
Documents,
ARTICLE 2: SCOPE OF SERVICES
2.1 CONSULTANT shall not commence work until being thoroughly briefed on the scope of
the Project and being notified in writing to proceed. The scope of the Project and
CONSULTANT'S Services required shall be reduced by CONSULTANT to a written
summary of the scope meeting. That Scope of Services and associated time schedule,
along with cost, once approved by CITY, will be included as a part of this Agreement as
Attachments 1 and 2 herein. Should the scope subsequently change, either
CONSULTANT or CITY may request a review of the anticipated services, with an
appropriate adjustment in compensation.
2.2 Communications by and with CONSULTANT'S subconsultants shall be through
CONSULTANT. Communications by and with subcontractors and material suppliers shall
be through CONSTRUCTION CONTRACTOR.
Project Agreement for Engineering Services rev 05202014 Page 3
2.3 CONSULTANT, in consideration for the Compensation herein provided, shall render the
professional Services described in this Section that are necessary for the development of
the Project, including plans and specifications, construction management services, any
special and general conditions, and instructions to bidders as acceptable to the Engineer,
or his or her duly authorized representative.
2.4 CONSULTANT shall complete a Project in accordance with the following phases and
CONSULTANT'S Scope of Services attached and incorporated herein as Attachments 1
and 2.
2.4.1 PROJECT DESIGN PHASES
2.4.2
Preliminary Engineering Report
2.4.3
30% Design
2.4.4
60% Design
2.4.5
90% Design
2.4.6
Bid Documents and Services
2.4.7
Construction Phase Services
2.4.8
Project Close Out and Final Payment
2.5 Upon acceptance and approval of the plans, reports or other deliverables required for a
Phase of work, as set forth in the Scope of Services, Engineer shall authorize
CONSULTANT, in writing, to proceed with the next phase of Work.
2.6 During Design Phases CONSULTANT shall:
2.6.1 Coordinate and meet with City staff and Project stakeholders as appropriate
throughout the Project. Assist staff at meetings with stakeholders, workshops,
and presentations to advisory commissions and City Council.
2.6.2 Provide the necessary field survey services to determine the existing field
conditions, including all utilities and surface features to the maximum extent
possible.
2.63 CONSULTANT shall make every effort to minimize utility adjustments, where
possible.
2.6.4 In the event electrical, communication, gas or other facilities are encountered,
CONSULTANT shall identify and incorporate those facilities at the completion of
each Project Phase in order to determine the magnitude of any potential
adjustment.
2.6.5 Perform the necessary testing to determine the existing site conditions and proper
design for construction and methods of any necessary demolition.
2.6.6 Follow and comply with the requirements for the Design Phases listed in this
Agreement, CITY'S Unified Development Code, if applicable, and CITY'S
Design Guidance Manual, both of which are incorporated by reference herein.
Project Agreement for Engineering Services rev 05202014 Page 4
2.6.7 In case of conflicts, follow and comply with the most stringent requirements for
the Design Phases.
2.6.8 Prepare documents for, and coordinate with other utilities and associated local,
state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits (determined during scoping for
each individual project).
2.6.9 Provide detailed plans and specifications for the Project at appropriate progress
intervals in requested formats (may include hard copy, .pdf, and .dwg).
2.6.10 Provide Opinion of Probably Construction Cost.
2.7 During Bid Phase CONSULTANT shall:
2.7.1 Provide unit price bid quantities in City bid form format for use in bid documents.
2.7.2 Provide bid sets of contract, technical specifications, plans, and any other
necessary documents in hard copy and digital format.
2.7.3 Attend pre -bid conference and prepare responses to questions and addenda as
necessary.
2.7.4 Research qualifications and references of apparent low bidder(s) and provide a
letter of recommendation for contract award.
2.8 During Construction Phase:
2.8.1 CONSULTANT shall monitor construction schedule.
2.8.2 CONSULTANT will make a minimum of two visits per month to the Project Site
at intervals appropriate to the Phases to (1) become generally familiar with and to
keep CITY informed about the progress and quality of the portion of the Work
completed, and (2) endeavor to guard CITY against defects in Work. However,
CONSULTANT will not be required to make exhaustive or continuous on -site
inspections to check the quality or quantity of the Work.
2.83 CONSULTANT will neither have control over or charge of, nor be responsible
for, the construction means, methods, techniques, sequences or procedures, or for
the safety precautions and programs in connection with the Work since these are
solely CONSTRUCTION CONTRACTOR'S rights and responsibilities under the
Contract Documents. CONSULTANT'S efforts will be directed toward providing
for CITY a greater degree of confidence that the completed Work will generally
conform to the Contract Documents.
2.8.4 CONSULTANT will not be responsible for CONSTRUCTION
CONTRACTOR'S failure to perform the Work in accordance with the
requirements of the Contract Documents. CONSULTANT will not have control
Project Agreement for Engineering Services rev 05202014 Page 5
over or charge of and will not be responsible for acts or omissions of
CONSTRUCTION CONTRACTOR, subcontractors, or their agents or
employees, or any other persons or entities performing portions of the Work.
2.8.5 CONSULTANT and CITY have authority to reject Work that does not conform to
the Contract Documents. Whenever CONSULTANT or CITY considers it
necessary or advisable, either CITY or CONSULTANT may require inspection or
testing of the Work whether or not such Work is fabricated, installed or
completed. However, neither this authority of CONSULTANT or CITY, nor a
decision made by either, in good faith, to require or not require an inspection shall
give rise to a duty or responsibility of CONSULTANT or CITY to
CONSTRUCTION CONTRACTOR, subcontractors, material and equipment
suppliers, agents or employees, or other persons or entities performing portions of
the Work.
2.8.6 CONSULTANT will review and approve or take other appropriate action upon
CONSTRUCTION CONTRACTOR'S submittals such as Shop Drawings,
Product Data and Samples, but only for the limited purpose of checking for
conformance with information given and the design concept expressed in the
Contract Documents. CONSULTANT will respond to submittals such as Shop
Drawings, Product Data, and Samples pursuant to the procedures set forth in the
Project specifications. Review of such submittals is not conducted for the purpose
of determining the accuracy and completeness of equipment or systems, all of
which remain the responsibility of CONSTRUCTION CONTRACTOR as
required by the Contract Documents. CONSULTANT'S review of
CONSTRUCTION CONTRACTOR'S submittals shall not relieve
CONSTRUCTION CONTRACTOR of its obligations. CONSULTANT'S review
shall not constitute approval of safety precautions or any construction means,
methods, techniques, sequences or procedures unless otherwise specifically stated
by CONSULTANT. CONSULTANT'S approval of a specific item shall not
indicate approval of an assembly of which the item is a component.
2.8.7 CONSULTANT will, within three work days after receipt of CONSTRUCTION
CONTRACTOR'S Application for Payment review the Application for Payment
and either issue to OWNER and /or the affected utility a Certificate for Payment
for such amount as CONSULTANT determines is properly due, or notify
OWNER, any affected utility, and CONSTRUCTION CONTRACTOR in writing
of CONSULTANT'S reasons for withholding recommendation of approval in
whole or in part.
2.8.8 CONSULTANT'S issuance of a Certificate for Payment will constitute a
representation by CONSULTANT to OWNER, based on CONSULTANT'S
evaluation of the Work and the data comprising the Application for Payment, that
the Work has progressed to the point indicated and that, to the best of
CONSULTANT'S knowledge, information and belief, the quality of the work is
in accordance with the design agreement documents or Construction Contract
Documents. The foregoing representations are subject to an evaluation of the
Project Agreement for Engineering Services rev 05202014 Page 6
Work for conformance with the design agreement documents, to results of
subsequent tests and inspections, to correction of minor deviations from the
design agreement documents prior to completion, and to any specific
qualifications expressed by CONSULTANT. The issuance of a Certificate for
Payment based on the CONSTRUCTION CONTRACTOR'S Application for
Payment will further constitute a representation that CONSTRUCTION
CONTRACTOR is entitled to payment in accordance with the Schedule of
Values. The issuance of Certificate for Payment will not be a representation that
CONSULTANT has (1) made exhaustive or continuous on -site inspections to
check the quality or quantity of the Work, (2) reviewed construction means,
methods, techniques, sequences or procedures, (3) reviewed copies of requisitions
received from Subcontractors and material suppliers and other data requested by
OWNER to substantiate Construction Contractor's right to payment, or (4) made
any examination to ascertain how or for what purpose CONSTRUCTION
CONTRACTOR has used money previously paid on account of the Application
for Payment sum.
2.8.9 CONSULTANT may recommend withholding an approval for Payment in whole
or in part, to the extent reasonably necessary to protect OWNER if, in
CONSULTANT'S opinion, the representations to OWNER required by Section
4.13 cannot be made. If CONSULTANT is unable to recommend approval of
payment in the amount of the Application, CONSULTANT will notify OWNER
and CONSTRUCTION CONTRACTOR as provided in Section 4.12, If OWNER
and CONSULTANT cannot agree on a revised amount, CONSULTANT will
promptly issue a Certificate for Payment for the amount for which
CONSULTANT is able to make such representations to OWNER.
CONSULTANT may also recommend withholding a Payment, because of
subsequently discovered evidence, may modify the whole or a part of a Certificate
for Payment to such extent as may be necessary, in CONSULTANT'S opinion, to
protect OWNER and the affected utility from loss for which CONSTRUCTION
CONTRACTOR is responsible, including loss resulting from acts and omissions
described below;
2.8.9.1 defective Work not remedied;
2.8.9.2 third party claims filed or reasonable evidence indicating probable
filing of such claims for which CONSTRUCTION CONTRACTOR is
responsible hereunder unless security acceptable to OWNER and the
affected utility is provided by CONSTRUCTION CONTRACTOR;
2.8.9.3 failure of CONSTRUCTION CONTRACTOR to make payments
properly to the subcontractors and /or material providers;
2.8.9.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the agreement sum and CONSTRUCTION CONTRACTOR
has failed to provide OWNER and the affected utility adequate
Project Agreement for Engineering Services rev 05202014 Page 7
assurance of its continued performance within a reasonable time after
demand;
2.8.9.5 damage to OWNER or another contractor;
2.8.9.6 reasonable evidence that the Work will not be completed within the
agreement time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
2.8.9.7 persistent failure by CONSTRUCTION CONTRACTOR to carry out
the Work in accordance with the Construction Contract Documents.
2.8.10 When the above reasons for withholding payment are removed, payment will be
made for amounts previously withheld. OWNER shall not be deemed in default
by CONSULTANT by reason of withholding payment as provided herein.
2.8.11 CONSULTANT will prepare Change Orders and Field Work Directives, and,
with concurrence of OWNER, OWNER'S designated representative will have
authority to order minor changes in the Work not involving an adjustment in the
Total Compensation or an extension of the time for construction. Such changes
shall be effected by written order, which CONSTRUCTION CONTRACTOR
shall carry out promptly and record on the as -built plan.
2.8.12 Upon written request of CITY or CONSTRUCTION CONTRACTOR,
CONSULTANT will issue its interpretation of the requirements of the Plans and
Specifications. CONSULTANT'S response to such requests will be made in
writing within any agreed time limits or otherwise with reasonable promptness. If
no agreement is made concerning the time within which interpretations required
by CONSULTANT shall be furnished in compliance with Article IV, then delay,
shall not be recognized on account of failure by CONSULTANT to furnish such
interpretations until 15 days after written request is made for CONSULTANT'S
interpretation.
2.8.13 Interpretations of CONSULTANT will be consistent with the intent of and
reasonably inferable from the Construction Contract Documents and will be in
writing or in the form of drawings.
2.8.14 CONSULTANT will advise and consult with CITY. CITY'S instructions to
CONSTRUCTION CONTRACTOR may be issued through CONSULTANT, but
CITY reserves the right to issue instructions directly to CONSTRUCTION
CONTRACTOR through inspectors or other designated CITY representatives.
2.8.15 CONSULTANT and CITY will conduct observations to determine the date of
substantial completion of the Work. CONSULTANT shall provide to CITY a
written recommendation of consideration of substantial completion of the Project.
2.8.16 CONSULTANT and CITY will conduct observations to determine the date of
final completion. CONSULTANT will receive and forward to CITY, for CITY'S
Project Agreement for Engineering Services rev 05202014 Page 8
review and records, written warranties and related documents required by the
Construction Contract Documents and assembled by CONSTRUCTION
CONTRACTOR, and will issue a final Approval for Payment upon compliance
with the requirements of the Construction Contract Documents. Such final
Approval will be accompanied by a signed and sealed statement from the
CONSULTANT'S Engineer of Record that certifies to CITY that the project was
constructed in accordance with the approved plans and, specifications.
2.8.17 CONSULTANT shall prepare record drawings from information submitted by
CONSTRUCTION CONTRACTOR and from CONSULTANT'S own
observations in accordance with City standards. CONSULTANT shall provide
record drawings in hard copy, .pdf, and .dwg formats to CITY.
ARTICLE 3: COMPENSATION FOR SERVICES
3.1 Basic Services
3.1.1 Compensation for all Services included in this Agreement will be on a time and
expense not -to- exceed basis in accordance with the negotiated, approved schedule
of billing rates as set forth in the Master Agreement. Not -to- exceed compensation
amounts, to the extent they have been negotiated shall be reflected in Attachment
3. A Proposal including a not -to- exceed cost will be provided by
CONSULTANT along with a Scope of Services for each Project (Attachments 1
and 2). The amount to be paid to CONSULTANT, including authorized
adjustments, is the total amount payable by OWNER to CONSULTANT for
performance of the Services for the Project under this Agreement. It is agreed
and understood that such amount will constitute full compensation to
CONSULTANT for Services included in the Scope of Services and shall meet all
requirements of CITY'S design guidelines applicable to the Project. Unless and
until CITY makes further appropriations for any Services not included in the
Scope of Services of this Agreement, the obligation of CITY to CONSULTANT
for Compensation in connection with this Agreement cannot and will not exceed
the sum described in this Section without further amendment to this Agreement.
3.1.2 No billing rate changes from those approved in the Master Agreement associated
with this Agreement shall be made during the term of this Agreement without the
prior written approval of CITY.
3.1.3 CONSULTANT shall submit monthly invoices to CITY describing the Services
performed the preceding month. CONSULTANT'S invoices shall include the
name of the person who performed the Service, a brief description of the Service
performed and the Phase of the Project to which the Service relates, the date(s)
the Service was performed, the number of hours spent on all Services billed on an
hourly basis, and a description of any subconsultant fees and /or reimbursable
expenditures.
Project Agreement for Engineering Services rev 05202014 Page 9
3.1.4 CITY shall reimburse CONSULTANT only for those costs or expenses
specifically approved in this Agreement, or specifically approved in advance by
CITY. Unless otherwise approved, such costs shall be limited and include
nothing more than the following costs incurred by CONSULTANT:
3.1.4.1 Approved reproduction charges,
3.1.4.2 Actual costs of subconsultant(s) for performance of any of the Services
that CONSULTANT agrees to provide pursuant to this Agreement,
which have been approved in advance by CITY and awarded in
accordance with this Agreement.
3.1.4.3 Actual costs and /or other costs and /or payments specifically authorized
in advance by the CITY in writing and incurred by CONSULTANT in
the performance of this Agreement.
3.1.5 CONSULTANT shall complete the Project in accordance with the following
phases. For the purpose of establishing portions of compensation for separate
phases, more particularly described in the Scope of Services, Attachment 2 shall
apply.
Preliminary Engineering Report
30% Design
60% Design
90% Design
Bid Documents and Services
Construction Phase Services
Project Close Out and Final Payment
3.1.6 CONSULTANT shall, within 10 days following receipt of Compensation from
OWNER, pay all bills for Services performed and furnished hereunder by
subconsultant(s) of CONSULTANT in connection with the Project and the
performance of services and shall, if requested, provide OWNER with evidence
of such payment. CONSULTANT'S failure to make payments within such time
shall constitute a material breach of this Agreement unless CONSULTANT is
able to demonstrate to OWNER bona fide disputes associated with the Services of
the unpaid subconsultant and its services. CONSULTANT shall include a
provision in each of its sub agreements imposing the same payment obligations on
its subconsultants as are applicable to CONSULTANT hereunder, and if OWNER
so requests, shall provide evidence of such payments by CONSULTANT to
OWNER. If CONSULTANT has failed to make payment promptly to the
subconsultant for undisputed Services for which OWNER has made payment to
CONSULTANT, OWNER shall be entitled to withhold future payment to
CONSULTANT to the extent remaining unpaid by CONSULTANT necessary to
protect OWNER.
Project Agreement for Engineering Services rev 05202014 Page 10
3.1.7 CONSULTANT warrants that title to all deliverables produced in the
performance of Services covered by an Application for Compensation will pass to
OWNER no later than the time of payment. CONSULTANT further warrants that
upon submittal of an Application for Compensation, all Services for which
Applications for Compensation have been previously issued and payments
received from OWNER shall, to the best of CONSULTANT'S knowledge,
information and belief be free and clear of liens, claims, security interests or
encumbrance in favor of CONSULTANT, or other persons or entities under
contract with CONSULTANT making a claim by reason of having provided labor
or services relating to CONSULTANT'S Services. CONSULTANT SHALL
INDEMNIFY AND HOLD OWNER HARMLESS FROM ANY LIENS,
CLAIMS, SECURITY INTEREST OR ENCUMBRANCES FILED BY
ANYONE CLAIMING BY, THROUGH OR UNDER THE ITEMS COVERED
BY PAYMENTS MADE BY OWNER TO CONSULTANT.
3.2 Additional Services
3.2.1 CONSULTANT shall not receive any compensation for additional Services
without prior written authorization of CITY. Compensation for duly authorized
additional Services shall be paid in accordance with the approved schedule of
billing rates as set forth in the Master Agreement.
3.2.2 Examples of additional Services (not all inclusive)
3.2.2.1 Assistance to CITY as an expert witness in any litigation with third
parties arising from the development of construction of a Project
including the preparation of engineering data and reports.
3.2.2.2 Preparation of plats and field notes for acquisition of property.
3.2.2.3 Preparation of applications and supporting documents for governmental
grants, loans, or advances in connection with a Project; preparation of
review of environmental assessment and impact statements; review and
evaluation of the effect on the design requirements of a Project of any
such statements and documents prepared by others; and assistance in
obtaining approval of authorities having jurisdiction over the
anticipated environmental impact of a Project,
3.2.2.4 Making revisions in drawings, specifications, or other documents when
such revisions are inconsistent with written approvals or instructions
previously given, are required by the enactment or revision of codes,
laws, or regulations subsequent to the preparation of such documents or
are due to other causes not solely within the control of
CONSULTANT.
3.2.2.5 Making revisions to drawings or specifications occasioned by
acceptance of substitutions proposed by CONSTRUCTION
CONTRACTOR; and Services after the award of each contract in
Project Agreement for Engineering Services rev 05202014 Page 11
evaluating and determining the acceptability of an unreasonable or
excessive number of substitutions proposed by CONSTRUCTION
CONTRACTOR.
3.2.2.6 Preparing drawings, specifications, and supporting data and providing
other Services in connection with change order requests to the extent
that the adjustment in the basic compensation resulting from the
adjusted construction cost is not commensurate with the Services
required of CONSULTANT, provided such change order requests are
required by causes not solely within the control of CONSULTANT; or
in connection with change orders requiring significant engineering
effort to compute and document the Work effort reflected by the
Change Order.
322.7 Investigations, surveys, valuations, inventories, or detailed appraisals of
facilities, construction and /or services not required by Project scope.
3.2.2.8 Investigations, surveys, audit, or inventories required in connection
with construction performed by CITY.
3.2.2.9 Additional Services during construction made necessary by:
3.2.2.9.1 Work damaged by fire or other cause during construction.
3.2.2.9.2 A significant amount of defective or neglected work of
CONSTRUCTION CONTRACTOR.
3.2.2.9.3 Failure of performance of CONSTRUCTION
CONTRACTOR.
3.2.2.9.4 Acceleration of the progress schedule required by CITY
involving Services beyond normal working hours.
3.2.2.9.5 Default by CONSTRUCTION CONTRACTOR.
3.2.2.10 Providing extensive assistance in the use of any equipment or system
such as initial start-up or testing, adjusting and balancing, preparation
of operation and maintenance manuals, training personnel for operation
and maintenance, and consultation during operation.
3.2.2.11 Providing Services relative to future facilities, systems, and equipment
which are not intended to be constructed during the Construction Phase.
3.2.2.12 Services after completion of the Construction Phase, such as
inspections during any guarantee period and reporting observed
deficiencies under guarantee called for in any contract for a Project.
Project Agreement for Engineering Services rev 05202014 Page 12
3.2.2.13 Providing Services of geotechnical engineering firm to perform test
borings and other soil or foundation investigations and related analysis
not included in original Scope of Services for a Project.
3.2.2.14 Additional copies of Construction Contract Documents, review
documents, bidding documents, reports, and or drawings over the
number specified in the original Scope of Services for a Project.
3.2.2.15 Preparation of all documents dealing with 404 permits and railroad
agreements.
3.2.2.16 Providing photographs, renderings, or models for CITY use.
3.2.2.17 Providing aerial mapping Services.
3.2.2.18 Providing consulting engineering Services not related to a particular
design or construction Project.
3.3 All Applications for Compensation shall be submitted through Engineer's office.
ARTICLE 4: METHOD OF PAYMENT
4.1 Compensation may be made to CONSULTANT as appropriately indicated on monthly
Applications for Compensation prepared based on hourly rates, not to exceed amounts
estimated for each phase, as described in Article 2 and Attachments 1 and 2 hereof.
4.2 Project Close Out and Final Payment —
4.2.1 CONSULTANT shall not be entitled to final payment unless and until it submits
to OWNER its affidavit that the invoices for services, and other liabilities
connected with the services for which OWNER, or OWNER'S property, might be
responsible have been fully paid or otherwise satisfied or will be paid from final
payment; releases and waivers of liens from all CONSULTANT'S subconsultants
and of any and all other parties required by OWNER that are either unconditional
or conditional on receipt of final payment; certificates of insurance showing
continuation of required insurance coverage; such other documents as OWNER
may request; and consent of surety to final payment.
4.2.2 Final Compensation — The final compensation to be made by CITY to
CONSULTANT will be payable upon submission of the "Record Drawings ".
CONSULTANT agrees to submit "Record Drawings: in print media, electronic
format (.pdf and .dwg formats) and final billing within 45 days of final acceptance
of construction. Additionally, CONSULTANT agrees to submit a statement of
release with the final billing notifying CITY that there is no further compensation
owed to CONSULTANT by CITY beyond the final bill. Final billing shall
indicate "Final Bill — no additional compensation is due to CONSULTANT ".
Project Agreement for Engineering Services rev 05202014 Page 13
4.3 OWNER may withhold compensation to such extent as may be necessary, in OWNER'S
opinion, to protect OWNER from damage or loss for which CONSULTANT is
responsible, because of,
4.3.1 delays in the performance of CONSULTANT'S services;
4.3.2 third party claims filed or reasonable evidence indicating probable filing of such
claims unless security acceptable to OWNER is provided by CONSULTANT;
4.3.3 failure of CONSULTANT to make payments properly to subconsultants or
vendors for labor, materials or equipment;
4.3.4 reasonable evidence that CONSULTANT'S work cannot be completed for the
amount unpaid under this Agreement;
4.3.5 damage to OWNER or CONSTRUCTION CONTRACTOR; or
4.3.6 persistent failure by CONSULTANT to carry out the performance of its Services
in accordance with this Agreement.
4.4 When the above reasons for withholding are removed or remedied by CONSULTANT,
compensation of the amount withheld will be made within a reasonable time. OWNER
shall not be deemed in default by reason of withholding compensation as provided for in
this Article.
4.5 In the event of any dispute(s) between the parties regarding the amount properly payable
for any Phase or as final Compensation, or regarding any amount that may be withheld by
OWNER, CONSULTANT shall be required to make a claim pursuant to and in
accordance with the terms of this Agreement and follow the procedures provided herein
for the resolution of such dispute. In the event CONSULTANT does not initiate and
follow the claims procedures provided in this Agreement in a timely manner and as
required by the terms thereof, any such claim shall be waived.
4.6 OWNER shall make final compensation for all sums due CONSULTANT not more than
30 days after CONSULTANT'S final Application for Compensation.
4.7 Acceptance of final compensation by CONSULTANT shall constitute a waiver of claims
except those previously made in writing and identified by CONSULTANT as unsettled at
the time of final Application for Compensation.
4.8 CONSULTANT agrees to maintain adequate books, payrolls and records satisfactory to
OWNER and all applicable utility providers in connection with any and all Services
performed hereunder. CONSULTANT agrees to retain all such books, payrolls and
records (including data stored in computer) for a period of not less than four years after
completion of Work. At all reasonable times, OWNER and all applicable utility providers
and their duly authorized representatives shall have access to all personnel of
CONSULTANT and all such books, payrolls and records, and shall have the right to audit
same.
Project Agreement for Engineering Services rev 05202014 Page 14
ARTICLE 5: TIME, SCHEDULE, AND PERIOD OF SERVICE
5.1 Prior to commencement, CONSULTANT shall provide CITY with a schedule of Project
Design Phases, Attachment 2.
5.2 Time is of the essence of this Agreement. CONSULTANT shall perform and complete its
obligations for the various Phases of a Project under Section 4, Scope of Services, of this
Agreement in a prompt and continuous manner so as to not delay the development of the
design Services and so as to not delay the construction of the work for the Project in
accordance with the schedules approved by CITY with CONSTRUCTION
CONTRACTOR. Upon review of phase Services, if corrections, modifications,
alterations, or additions are required of CONSULTANT, these items shall be completed
by CONSULTANT before that Phase is approved.
5.3 CONSULTANT shall not proceed with the next appropriate Phase of Services without
written authorization from the Engineer. CITY may elect to discontinue
CONSULTANT'S Services at the end of any Phase for any reason. Notwithstanding any
other provisions of this Agreement, if circumstance dictates, the Engineer may make
adjustments to the scope of CONSULTANT'S obligations at any time to achieve the
required design.
5.4 CONSULTANT shall not be liable or responsible for any delays due to strikes, riots, acts
of God, national emergency, acts of the public enemy, governmental restrictions, laws or
regulations, or any other causes beyond CONSULTANT'S reasonable control. Within 21
days from the occurrence of any event for which time for performance by
CONSULTANT will be significantly extended under this provision, CONSULTANT
shall give written notice thereof to CITY stating the reason for such extension and the
actual or estimated time thereof. If CITY determines that CONSULTANT is responsible
for the need for extended time, CITY shall have the right to make a Claim as provided in
this Agreement.
5.5 Term of Agreement shall be as follows:
5.5.1 This Agreement shall become effective upon and shall remain in
effect until satisfactory completion of the Project unless terminated as provided
for in this Agreement.
ARTICLE 6: COORDINATION WITH CITY
6.1 CONSULTANT shall hold periodic conferences with the Engineer or his or her
representatives to the end that the Project as developed shall have the full benefit of
CITY'S experience and knowledge of existing needs and facilities, and be consistent with
its current policies and standards. To assist CONSULTANT in this coordination, CITY
shall make available for CONSULTANT'S use in planning and designing the Project all
existing plans, maps, statistics, computations and other data in its possession relative to
existing facilities and to this particular Project, at no cost to CONSULTANT. However,
any and all such information shall remain the property of CITY and shall be returned by
Project Agreement for Engineering Services rev 05202014 Page 15
CONSULTANT upon termination or completion of the Project or if instructed to do so by
the Engineer.
6.2 The Engineer will act on behalf of CITY with respect to the Services to be performed
under this Agreement, The Engineer shall have complete authority to transmit
instructions, receive information, interpret and define CITY'S policies and decisions with
respect to materials, equipment, elements and systems pertinent to CONSULTANT'S
services.
6.3 CITY will give prompt written notice to CONSULTANT whenever CITY observes or
otherwise become aware of any defect in CONSULTANT'S Services, in the work of
CONSTRUCTION CONTRACTOR, or any development that affects the scope or timing
of CONSULTANT'S Services,
6.4 All appraisals, notices, and permits shall be furnished by CONSULTANT under the Scope
of Services unless otherwise assigned to CITY in the Scope of Services, Approvals and
permits assigned to CITY shall be obtained from all governmental authorities having
jurisdiction over the Project and such approvals and consents from others as may be
necessary for the completion of the Project. CONSULTANT will provide CITY
reasonable assistance in connection with such approvals and permits such as the
furnishing of data compiled by CONSULTANT pursuant to other provisions of this
Agreement, but CONSULTANT shall not be obligated to develop additional data, prepare
extensive reports or appear at hearings or the like unless compensated therefore under
other provisions of this Agreement.
ARTICLE 7: REVISIONS TO DRAWINGS AND SPECIFICATIONS
7,1 CONSULTANT shall make without expense to CITY such revisions to the drawings,
reports or other documents as may be required to meet the needs of CITY which are
within the Scope of Services, but after the approval of drawings, reports or other
documents and specifications by CITY. Any revisions, additions, or other modifications
made at CITY'S request which involve extra services and expenses to CONSULTANT
shall be at additional compensation to CONSULTANT for such additional Services and
expenses in accordance with Article 3 herein.
Project Agreement for Engineering Services rev 05202014 Page 16
ARTICLE 8: OWNERSHIP OF DOCUMENTS
8.1 All previously owned documents, including the original drawings, estimates,
specifications, and all other documents and data by CONSULTANT, will remain the
property of CONSULTANT as instruments of service. However, CONSULTANT
understands and agrees that CITY shall have free access to all such information with the
right to make and retain copies of previously owned drawings, estimates, specifications
and all other documents and data. Any reuse without specific written verification or
adaptation by CONSULTANT will be at CITY'S sole risk and without liability or legal
exposure to CONSULTANT.
8.2 All completed documents submitted by CONSULTANT for final approval or issuance of
a permit shall bear the seal with signature and date adjacent thereto of a registered
professional engineer licensed to practice in the State of Texas.
8.3 CONSULTANT acknowledges and agrees that upon payment, CITY shall own
exclusively any and all information in whatsoever form and character produced and /or
maintained in accordance with, pursuant to, or as a result of this Agreement and shall be
used as CITY desires and documents, including the original drawings, estimates,
specifications and all other documents and data shall be delivered to CITY at no
additional cost to CITY upon request or termination or completion of this Agreement
without restriction on future use. However, any reuse without specific written verification
or adaptation by CONSULTANT will be at CITY'S sole risk and without liability to
CONSULTANT.
8.4 CONSULTANT agrees and covenants to protect any and all proprietary rights of CITY in
any materials provided to CONSULTANT. Such protection of proprietary rights by
CONSULTANT shall include, but not be limited to, the inclusion in any copy intended for
publication of copyright mark reserving all rights to CITY. Additionally, any materials
provided to CONSULTANT by CITY shall not be released to any third party without the
written consent of CITY and shall be returned intact to CITY upon termination or
completion of this Agreement or if instructed to do so by the Engineer.
8.5 CONSULTANT HEREBY ASSIGNS ALL STATUTORY AND COMMON LAW
COPYRIGHTS TO ANY COPYRIGHTABLE WORK THAT IN PART OR IN
WHOLE WAS PRODUCED FROM THIS AGREEMENT TO CITY, INCLUDING
ALL EQUITABLE RIGHTS. NO REPORTS, MAPS, DOCUMENTS OR OTHER
COPYRIGHTABLE WORKS PRODUCED IN WHOLE OR IN PART BY THIS
AGREEMENT SHALL BE SUBJECT OF AN APPLICATION FOR COPYRIGHT
BY CONSULTANT. ALL REPORTS, MAPS, PROJECT LOGOS, DRAWINGS OR
OTHER COPYRIGHTABLE WORK PRODUCED UNDER THIS AGREEMENT
SHALL BECOME THE PROPERTY OF CITY (EXCLUDING ANY PRIOR
OWNED INSTRUMENT OF SERVICES, UNLESS OTHERWISE SPECIFIED
HEREIN). CONSULTANT SHALL, AT ITS EXPENSE, INDEMNIFY CITY AND
DEFEND ALL SUITS OR PROCEEDINGS INSTITUTED AGAINST CITY AND
PAY ANY AWARD OF DAMAGES OR LOSS RESULTING FROM AN
INJUNCTION, AGAINST CITY, INSOFAR AS THE SAME ARE BASED ON ANY
Project Agreement for Engineering Services rev 05202014 Page 17
CLAIM THAT MATERIALS OR WORK PROVIDED UNDER THIS
AGREEMENT CONSTITUTE AN INFRINGEMENT OF ANY PATENT, TRADE
SECRET, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
8.6 CONSULTANT may make copies of any and all documents and items for its files.
CONSULTANT shall have no liability for changes made to or use of the drawings,
specifications and other documents by other engineers, or other persons, subsequent to the
completion of the Project. CONSULTANT shall appropriately mark all changes or
modifications on all drawings, specifications and other documents by other engineers or
other persons, including electronic copies, subsequent to the completion of the Project.
8.7 Copies of documents that may be relied upon by CITY are limited to the printed copies
(also known as hard copies) and .pdf- format electronic versions that are sealed and signed
by CONSULTANT. Files in editable electronic media format of text, data, graphics, or
other types (such as .dwg) that are furnished by CONSULTANT to CITY are only for
convenience of CITY or any utility. Any conclusion or information obtained or derived
from such electronic files will be at the user's sole risk. Any reuse without specific written
verification or adaptation by CONSULTANT will be at CITY'S sole risk and without
liability to CONSULTANT.
8.8 Notwithstanding anything to the contrary contained herein, all previously owned
intellectual property of CONSULTANT, unless expressly purchased by CITY, including
but not limited to any computer software (object code and source code), tools, systems,
equipment or other information used by CONSULTANT or its suppliers in the course of
delivering the Services hereunder, and any know -how, methodologies, or processes used
by CONSULTANT to provide the services or protect deliverables to CITY, including
without limitation, all copyrights, trademarks, patents, trade secrets, and any other
proprietary rights inherent therein and appurtenant thereto shall remain the sole and
exclusive property of CONSULTANT or its suppliers.
ARTICLE 9: TERMINATION AND /OR SUSPENSION OF WORK
9.1 Right of Either Party to Terminate for Default
9.1.1 This Agreement may be terminated by either party for substantial failure by the
other party to perform (through no fault of the terminating party) in accordance
with the terms of this Agreement and a failure to cure as provided in this Article
9.
9.1.2 The party not in default must issue a signed, written notice of termination (citing
this paragraph) to the other party declaring the other party to be in default and
stating the reason(s) why they are in default. Upon receipt of such written notice
of default, the party in receipt shall have a period of ten days to cure any failure to
perform under this Agreement. Upon the completion of such 10 -day period
commencing upon receipt of notice of termination, if such party has not cured any
Project Agreement for Engineering Services rev 05202014 Page 18
failure to perform, such termination shall become effective without further written
notice.
9.2 Right of CITY to Terminate
9.2.1 CITY reserves the right to terminate this Agreement for reasons other than
substantial failure by CONSULTANT to perform by issuing a signed, written
notice of termination (citing this paragraph) which shall take effect on the
twentieth day following receipt of said notice or upon the scheduled completion
date of the performance Phase in which CONSULTANT is then currently
working, whichever effective termination date occurs first.
9.3 Right of CITY to Suspend Giving Rise to Right of CONSULTANT to Terminate
9.3.1 CITY reserves the right to suspend this Agreement at the end of any Phase for the
convenience of CITY by issuing a signed, written notice of suspension (citing this
paragraph) which shall outline the reasons for the suspension and the expected
duration of the suspension, but such expected duration shall in no way guarantee
what the total number of days of suspension will occur. Such suspension shall
take effect immediately upon receipt of said notice of suspension by
CONSULTANT.
9.3.1.1 CONSULTANT is hereby given the right to terminate this Agreement
in the event such suspension extends for a period in excess of 120 days.
CONSULTANT may exercise this right to terminate by issuing a
signed, written notice of termination (citing this paragraph) to CITY
after the expiration of 120 days from the effective date of the
suspension. Termination (under this paragraph) shall become effective
immediately upon receipt of said written notice by CITY.
9.4 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Termination
9.4.1 Upon receipt of a notice of termination and prior to the effective date of
termination, unless the notice otherwise directs or CONSULTANT immediately
takes action to cure a failure to perform under the cure period set out in this
Article. CONSULTANT shall immediately begin the phase -out and the
discontinuance of all services in connection with the performance of this
Agreement and shall proceed to promptly cancel all existing orders and contracts
insofar as such orders and contracts are chargeable to this Agreement. Within 30
days after receipt of such notice of termination (unless CONSULTANT has
successfully cured a failure to perform) CONSULTANT shall submit a statement
showing in detail the Services performed under this Agreement prior to the
effective date of termination. CITY shall have the option to grant an extension to
the time period for submittal of such statement.
9.4.2 Copies of all completed or partially completed specifications and all
reproductions of all completed or partially completed designs, plans and
attachments prepared under this Agreement prior to the effective date of
Project Agreement for Engineering Services rev OS202014 Page 19
termination shall be delivered to CITY, in the form requested by CITY as a
precondition to final payment. These documents shall be subject to the restrictions
and conditions set forth in Article IX above.
9.43 Upon the above conditions being met, CITY shall promptly pay CONSULTANT
that proportion of the prescribed Compensation which the Services actually
performed under this Agreement bear to the total Services called for under this
Agreement, less previous payments of the Compensation.
9.4.4 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of CONSULTANT to comply with the
submittal of the statement and documents as required above shall constitute a
waiver by CONSULTANT of any and all rights or claims for compensation for
services performed under this Agreement by CONSULTANT.
9.4.5 Failure of CONSULTANT to comply with the submittal of the statement and
documents as required above shall constitute a waiver by CONSULTANT of any
and all rights or claims to collect monies that CONSULTANT may otherwise be
entitled to for services performed under this Agreement.
9.5 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Suspension
9.5.1 Upon receipt of written notice of suspension, which date shall also be the
effective date of the suspension, CONSULTANT shall, unless the notice
otherwise directs, immediately begin to phase -out and discontinue all services in
connection with the performance of this Agreement and shall proceed to promptly
suspend all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement.
9.5.2 CONSULTANT shall prepare a statement showing in detail the Services
performed under this Agreement prior to the effective date of suspension.
9.53 Copies of all completed or partially completed designs, plans, and specifications
prepared under this Agreement prior to the effective date of suspension shall be
prepared for possible delivery to CITY but shall be retained by CONSULTANT
until such time as CONSULTANT may exercise the right to terminate.
9.5.4 In the event that CONSULTANT exercises the right to terminate 120 days after
the effective suspension date, within 30 days after receipt by CITY of
CONSULTANT'S notice of termination, CONSULTANT shall promptly cancel
all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement and shall submit the above referenced statement
showing in detail the services performed under this Agreement prior to the
effective date of suspension.
9.5.5 Any documents prepared in association with this Agreement shall be delivered to
CITY as a precondition to final payment.
Project Agreement for Engineering Services rev 05202014 Page 20
9.5.6 Upon the above conditions being met, CITY shall pay CONSULTANT that
proportion of the prescribed Compensation which the Services actually performed
under this Agreement bear to the total Services called for under this Agreement,
less previous payments of Compensation.
9.53 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of Consultant to substantially comply
with the submittal of the statements and documents as required herein shall
constitute a waiver by CONSULTANT of any portion of the Compensation for
which CONSULTANT did not supply such necessary statements and /or
documents.
ARTICLE 10: CONSULTANT'S WARRANTY
10.1 CONSULTANT warrants that it has not employed or retained any company or person
other than a bona fide employee working solely for CONSULTANT to solicit or secure
this Agreement, and that it has not, for the purpose of soliciting or securing this
Agreement, paid or agreed to pay any company or person, commission, percentage,
brokerage fee, gift, or any other consideration, contingent upon or resulting from the
award or making of this Agreement. For breach of this warranty, CITY shall have the
right to terminate this Agreement under the provisions of Article 9 above.
ARTICLE 11: ASSSIGNMENT OR TRANSFER OF INTEREST
11.1 CONSULTANT shall not assignor transfer its interest in this Agreement without the prior
written consent of CITY.
ARTICLE 12: INSURANCE REQUIREMENTS
12.1 Prior to the commencement of any Services under this Agreement, CONSULTANT shall
furnish copies of all required endorsements and an original completed Certificate(s) of
Insurance to CITY'S Engineering Department, which shall be clearly identified with the
name of the Project in the Description of Operations block of the Certificate. The original
Certificate(s) shall be completed by an agent and signed by a person authorized by that
insurer to bind coverage on its behalf. CITY will not accept Memorandum of Insurance or
Binders as proof of insurance. The original certificate(s) or form must have the agent's
original signature, including the signer's company affiliation, title and phone number, and
be mailed, with copies of all applicable endorsements, directly from the insurer's
authorized representative to CITY. CITY shall have no duty to pay or perform under this
Agreement until such certificate and endorsements have been received and approved by
CITY'S Engineering Department. No officer or employee other than CITY'S Risk
Manager shall have authority to waive this requirement.
Project Agreement for Engineering Services rev 05202014 Page 21
circumstances surrounding this contract. In no instance will CITY allow modification
whereupon CITY may incur increased risk.
12.3 CONSULTANT'S financial integrity is of interest to CITY. Therefore, subject to
CONSULTANT'S right to maintain reasonable deductibles in such amounts as are
approved by CITY, CONSULTANT shall obtain and maintain in full force and effect for
the duration of this Agreement, and any extension hereof, at CONSULTANT'S sole
expense, insurance coverage written on an occurrence or claims made basis, as
appropriate, by companies authorized and approved to do business in the State of Texas
and with an A.M. Best's rating of no less than A- (VII), in the following types and for an
amount not less than the amount listed:
INSURANCE REQUIREMENTS
Worker's Compensation*
Employer's Liability
Commercial General (Public) Liability
insurance to include coverage for the
following:
a. Premises Operations
b. Independent Contractors **
c. Products /Completed Operations
d. Personal Injury
e. Contractual Liability
Business Automobile Liability
a. Owned /Leased Vehicles
b. Non -owned Vehicles
c. Hired Vehicles
Professional Liability (Claims Made Form)
Statutory
$1, 000, 000, 000 /$1,000,000,000 /$1,000,000,000
For Bodily Injury and Property Damage of
$1,000,000 per occurrence.
$2,000,000 General Aggregate, or its equivalent
in Umbrella or Excess Liability Coverage
Combined Single Limit for Bodily Injury and
property Damage of $1,000,000 per occurrence
$1,000,000 per claim to pay on behalf of the
insured all sums, which the insured shall
become legally obligated to pay as damages to
the extent caused by any negligent act, error, or
omission in the performance of professional
services.
*Alternate Plans must be approved by CITY'S Risk Manager
* *If applicable
Project Agreement for Engineering Services rev 05202014 Page 22
policies). CONSULTANT shall attempt to comply with any such requests, subject to the
policy terms and conditions, and shall submit a copy of the replacement certificate of
insurance to CITY at the address provided below within 10 days of the requested change,
in the event the respective insurance companies approve the requested change(s).
CONSULTANT shall pay any costs incurred resulting from said changes.
City of Schertz
Attn: City Engineer
10 Commercial Place
Schertz, TX 78154
12.5 CONSULTANT agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
12.5.1 Name CITY and its officers, officials, employees, and elected representatives as
additional insured's by endorsement, as respects operations and activities of, or on
behalf of, the named insured performed under contract with CITY, with the
exception of the workers' compensation and professional liability policies;
12.5.2 Provide for an endorsement that the "other insurance" clause shall not apply to the
CITY where CITY is an additional insured shown on the policy if such
endorsement is permitted by law and regulations;
12.5.3 Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of CITY; and
12.5.4 Provide 30 calendar days advance written notice directly to CITY of any
suspension, cancellation or non - renewal or material change in coverage, and not
less than 10 calendar days advance written notice for nonpayment of premium.
12.6 Within five calendar days after a suspension, cancellation or non - renewal of coverage,
CONSULTANT shall provide a replacement Certificate of Insurance and applicable
endorsements to CITY. CITY shall have the option to suspend CONSULTANT'S
performance should there be a lapse in coverage at any time during this Agreement.
Failure to provide and to maintain the required insurance shall constitute a material breach
of this Agreement.
123 If CONSULTANT fails to maintain the aforementioned insurance, or fails to secure and
maintain the aforementioned endorsements, CITY may obtain such insurance, and deduct
and retain the amount of the premiums for such insurance from any sums due under the
agreement; however, procuring of said insurance by CITY is an alternative to other
remedies CITY may have and is not the exclusive remedy for failure of CONSULTANT
to maintain said insurance or secure such endorsement. In addition to any other remedies
CITY may have upon CONSULTANT'S failure to provide and maintain any insurance or
policy endorsements to the extent and within the time herein required, CITY shall have
the right to order CONSULTANT to stop performing services hereunder and /or withhold
any payment(s) which become due to CONSULTANT hereunder until CONSULTANT
demonstrates compliance with the requirements hereof.
Project Agreement for Engineering Services rev 05202014 Page 23
12.8 Nothing herein contained shall be construed as limiting in any way the extent to which
CONSULTANT may be held responsible for payments of damages to persons or property
resulting from CONSULTANT'S or its subconsultant's performance of the Services
covered under this Agreement.
12.9 It is agreed that CONSULTANT'S insurance shall be deemed primary with respect to any
insurance or self insurance carried by CITY for liability arising out of operations under
this Agreement.
12.10 It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this Agreement as respects additional insured's.
ARTICLE 13: INDEMNIFICATION
13.1 CONSULTANT, WHOSE WORK PRODUCT AND SERVICES ARE THE
SUBJECT OF THIS AGREEMENT FOR PROFESSIONAL SERVICES, AGREES
TO INDEMNIFY AND HOLD CITY, ITS ELECTED OFFICIALS, OFFICERS,
AGENTS AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS
BY THIRD PARTIES, LAWSUITS, JUDGMENTS, COST, LIENS, LOSSES,
EXPENSES, FEES (INCLUDING REASONABLE ATTORNEY'S FEES AND
COSTS OF DEFENSE), PROCEEDINGS, ACTIONS, DEMANDS, CAUSES OF
ACTION, LIABILITY AND SUITS OF ANY KIND AND NATURE, INCLUDING
BUT NOT LIMITED TO, PERSONAL INJURY (INCLUDING DEATH),
PROPERTY DAMAGE, OR OTHER HARM FOR WHICH RECOVERY OF
DAMAGES IS SOUGHT THAT MAY ARISE OUT OF OR BE OCCASIONED OR
CAUSED BY A NEGLIGENT ACT, ERROR, OR OMISSION OF CONSULTANT,
ANY AGENT, OFFICER, ENGINEER, REPRESENTATIVE, EMPLOYEE,
CONSULTANT OR SUBCONSULTANT OF CONSULTANT, AND THEIR
RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, ENGINEERS AND
REPRESENTATIVES WHILE IN THE EXERCISE OF PERFORMANCE OF
THE SERVICES, RIGHTS OR DUTIES UNDER THIS AGREEMENT. THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO
ANY LIABILITY RESULTING FROM THE NEGLIGENCE OF CITY, ITS
OFFICERS OR EMPLOYEES, IN INSTANCES WHERE SUCH NEGLIGENCE
CAUSES PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE. IN THE
EVENT CONSULTANT AND CITY ARE FOUND JOINTLY LIABLE BY A
COURT OF COMPETENT JURISDICTION, LIABILITY SHALL BE
APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO CITY UNDER TEXAS LAW
AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS
LAW.
13.2 CONSULTANT shall advise CITY in writing within 24 hours of any claim or demand
against CITY or CONSULTANT, known to CONSULTANT, related to or arising out of
CONSULTANT'S activities under this Agreement.
Project Agreement for Engineering Services rev 05202014 Page 24
13.3 The provisions of Article 13 are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or
entity.
13.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
ARTICLE 14: CLAIMS AND DISPUTES
14.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of
right, adjustment or interpretation of this Agreement's terms, payment of money, and
extension of time or other relief with respect to the terms of this Agreement. The term
"Claim" also includes other disputes and matters in question between OWNER and
CONSULTANT arising out of or relating to this Agreement. Claims must be initiated by
written notice. Every Claim of CONSULTANT, whether for additional Compensation,
additional time, or other relief, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind
CONSULTANT by signature) of CONSULTANT, verifying the truth and accuracy of the
Claim. The responsibility to substantiate Claims shall rest with the party making the
Claim.
14.2 Time Limit on Claims. Claims by CONSULTANT or by OWNER must be initiated
within 30 calendar days after occurrence of the event giving rise to such Claim. Claims by
CONSULTANT must be initiated by written notice to OWNER. Claims by the OWNER
must be initiated by written notice to CONSULTANT.
143 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise
agreed in writing, CONSULTANT shall proceed diligently with performance of this
Agreement and OWNER shall continue to make payments in accordance with this
Agreement.
14.4 Claims for Additional Time. If CONSULTANT wishes to make Claim for an increase in
the time for performance, written notice as provided in this Article 14 shall be given.
CONSULTANT'S Claim shall include an estimate of probable effect of delay on progress
of the Work. In the case of a continuing delay only one Claim is necessary.
14.5 Claims for Consequential Damages. Except as otherwise provided in this Agreement, in
calculating the amount of any Claim or any measure of damages for breach of contract
(such provision to survive any termination following such breach), the following
standards will apply both to claims by CONSULTANT and to claims by OWNER:
14.5.1 No consequential damages will be allowed.
Project Agreement for Engineering Services rev 05202014 Page 25
14,52 Damages are limited to extra costs specifically shown to have been directly
caused by a proven wrong for which the other party is claimed to be responsible.
14.5.3 No profit will be allowed on any damage claim,
14.6 No Waiver of Governmental Immunity. NOTHING IN THIS AGREEMENT SHALL
BE CONSTRUED TO WAIVE OWNER'S GOVERNMENTAL IMMUNITY
FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE
EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE
LAW.
ARTICLE 15: SEVERABILITY
15.1 If for any reason, any one or more paragraphs of this Agreement are held invalid or
unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the
remaining paragraphs of this Agreement but shall be confined in its effect to the specific
section, sentences, clauses or parts of this Agreement held invalid or unenforceable, and
the invalidity or unenforceability of any section, sentence, clause or parts of this
Agreement in any one or more instance shall not affect or prejudice in any way the
validity of this Agreement in any other instance.
ARTICLE 16: ESTIMATES OF COST
16.1 Since CONSULTANT has no control over the cost of labor, materials, or equipment or
over CONSTRUCTION CONTRACTOR'S methods of determining prices, or over
competitive bidding or market conditions, CONSULTANT'S opinions of probable Project
Cost or Construction Cost provided for herein are to be made on the basis of
CONSULTANT'S experience and qualifications and represent CONSULTANT'S best
judgment as a design professional familiar with the construction industry but
CONSULTANT cannot and does not guarantee that bids or the construction cost will not
vary from opinions of probable Cost prepared by CONSULTANT.
ARTICLE 17: INTEREST IN CITY CONTRACTS PROHIBITED
17.1 No officer or employee of CITY shall have a financial interest, directly or indirectly, in
any contract with CITY, or shall be financially interested, directly or indirectly, in the sale
to CITY of any land, materials, supplies or service, except on behalf of CITY as an officer
or employee. This prohibition extends to other CITY boards and commissions, which are
more than purely advisory. The prohibition also applies to subcontracts on CITY projects.
17.2 CONSULTANT acknowledges that it is informed that the Charter of CITY prohibits a
CITY officer or employee, as those terms are defined in the Ethics Code, from having a
financial interest in any contract with CITY or any CITY agency.
17.3 CONSULTANT warrants and certifies, and this Agreement is made in reliance thereon,
that it, its officers, employees and agents are neither officers nor employees of CITY.
CONSULTANT further warrants and certifies that it has tendered to CITY a
Discretionary Contracts Disclosure Statement.
ARTICLE 18: CONFLICTS OF INTEREST DISCLOSURE
18.1 All consultants must disclose if it is associated in any manner with a CITY official or
employee in a business venture or business dealings. To be "associated" in a business
venture or business dealings includes being in a partnership or joint venture with the
officer or employee, having a contract with the officer or employee, being joint owners of
a business, owning at least 10% of the stock in a corporation in which a CITY officer or
employee also owns at least 10 %, or having an established business relationship as client
or customer.
ARTICLE 19: STANDARD OF CARE
19.1 Services provided by CONSULTANT under this Agreement will be performed in a
manner consistent with that degree of care and skill ordinarily exercised by members of
the same profession currently practicing under similar circumstances.
19.2 CONSULTANT shall be represented by a registered professional engineer licensed to
practice in the State of Texas at meetings of any official nature concerning the Project,
including but not limited to scope meetings, review meetings, pre -bid meetings, and
preconstruction meetings.
193 The Texas Board of Professional Engineers, 1917 IH -35 South, Austin, Texas 78741,
(512) 440 -7723 has jurisdiction over individuals licensed under Title 22 of the Texas
Administrative Code.
19.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents, or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
ARTICLE 20: RIGHT OF REVIEW AND AUDIT
20.1 CONSULTANT agrees that CITY may review any and all of the work performed by
CONSULTANT UNDER THIS Agreement. CITY is granted the right to audit, at
CITY'S election, all of CONSULTANT'S records and billings related to performance of
this Agreement. CONSULTANT agrees to retain such records for a minimum of four
years following completion of this Agreement. Any payment, settlement, satisfaction, or
release provided under this Agreement shall be subject to CITY'S rights as may be
disclosed by such audit.
ARTICLE 21: ENTIRE AGREEMENT
21.1 This Agreement, together with Attachments 1, 2, 3, and 4, represents the entire and
integrated agreement between CITY and CONSULTANT and supersedes all prior
Project Agreement for Engineering Services rev 05202014 Page 27
negotiations, representations, or agreements, either oral or written. This Agreement may
be amended only by written instrument signed by both CITY and CONSULTANT.
ARTICLE 22: VENUE
22.1 The obligations of the parties to this Agreement shall be performable in the City of
Schertz or its Extra Territorial Jurisdiction, located in Bexar, Comal, and Guadalupe
Counties, Texas, and if legal action, such as civil litigation, is necessary in connection
therewith, exclusive venue shall lie in Guadalupe County, Texas.
ARTICLE 23: NOTICES
23.1 Except as may be provided elsewhere herein, all notices, communications, and reports
required or permitted under this Contract shall be personally delivered or mailed to the
respective party by depositing the same in the United States Postal Service addressed to
the applicable address shown below, unless and until either party is otherwise notified in
writing by the other party of a change of such address. Mailed notices shall be deemed
communicated as of five calendar days of mailing. Notices provided via email shall be
deemed communicated as of the next business day after the notice is sent.
If intended for CITY, to:
If intended for CONSULTANT, to:
City of Schertz
Engineering Department
10 Commercial Place
Schertz, Texas 78154
The address listed on the first page of this
Agreement.
ARTICLE 24: INDEPENDENT CONTRACTOR
24.1 In performing services under this Agreement, the relationship between CITY and
CONSULTANT is that of independent contractor. By the execution of this Agreement,
CONSULTANT and CITY do not change the independent contractor status of
CONSULTANT. CONSULTANT shall exercise independent judgment in performing its
duties and obligations under this Agreement and is solely responsible for setting working
hours, scheduling or prioritizing the work flow and determining how the Services are to be
performed. No term or provision of this Agreement or act of CONSULTANT in the
performance of this Agreement shall be construed as making CONSULTANT the agent,
servant or employee of CITY, or as making CONSULTANT or any of its agents or
employees eligible for any fringe, benefits, such as retirement, insurance and worker's
compensation, which CITY provides to or for its employees.
ARTICLE 25: CAPTIONS
25.1 The captions for the individual provisions of this Agreement are for informational
purposes only and shall not be construed to effect or modify the substance of the terms
and conditions of this Agreement to which any caption relates.
Project Agreement for Engineering Services rev 05202014 Page 28
IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Agreement
effective as of , 20 (the "Effective Date ").
CITY OF SCHERTZ
CITY MANAGER
CONSUL
COdk ltant Name
"off V7 s' -
TITLE
Project Agreement for Engineering Services rev 05202014 Page 29
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
To be completed upon project assignment.
Project Agreement for Engineering Services rev 05202014 Page 30
ATTACHMENT 2
PROJECT DESIGN PHASES COST AND TIMELINE
PROJECT PHASE
Preliminary Engineering Report
30% Design
60% Design
90% Design
Bid Phase
Construction Phase including
Closeout
TOTAL ESTIMATED COST
(NOT -TO- EXCEED AMOUNT)
ESTIMATED COST I TIME IN CALENDAR
DAYS
To be completed upon project assignment.
Project Agreement for Engineering Services rev 05202014 Page 31
ATTACHMENT 3
EXPLANATION OF PROJECT FEE
To be completed upon project assignment.
Project Agreement for Engineering Services rev 05202014 Page 32
ATTACHMENT 4
ADDITIONAL SERVICES AND /OR EXPANDED SCOPE OF SERVICES
To be completed upon project assignment.
Project Agreement for Engineering Services rev OS202014 Page 33
PAPE-DAWSON EXHIBIT Yr.
I'
f' ENGINEERS
LAND DEVELOPMENT ENVIRONMENTAL TRANSPORTATION WATER RESOURCES SURVEYING
SCHEDULE OF REPRESENTATIVE RATES
Effective June 1, 2014
Classification Hourly Charge Rate*
Chairman
250.00
President / CEO
250.00
Vice President
230.00
Senior Manager / Engineer
170.00—
190.00
Project Manager
125.00—
160.00
Project Engineer
120.00--
150.00
Project Surveyor
110.00--
150.00
Assistant Manager
110,00—
135.00
Designer / E.I.T.
75.00
- 130.00
GIS Analyst
95.00 —
130.00
Environmental Scientist, Geologist & Archeologist
65,00—
160.00
Technician
60.00—
115.00
Clerical
30.00 —
80.00
Survey Crew (4 person) with equipment
195.00
Survey Crew (3 person) with equipment
170.00
Survey Crew (2 person) with equipment
145.00
CADD
25.00
Micro Processor
15.00
Total Station / Data Collector
12.50
GPS
30.00
*Ranges are shown for some employee classifications due to varying rates of individuals performing work.
SAN ANTONIO / AUSTIN I 555 East Ramsey San Antonio, Texas 78216
HOUSTON / FORT WORTH ( P 210.375.9000 F 210,375.9010 www.pape dawson.com
SCHEDULE OF EQUIPMENT RATES
Effective June 1, 2014
Daily Charge Rates
Organic Vapor Meter
100.00
Interface Probe
55.00
Combustible Gas / Oxygen Meter
55.00
Water Level Meter
25.00
Hand Auger Equipment
75.00
G.W. Field Meters
25.00
Well Sample Kit 15.00
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Agenda No. 6
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department: Public Works
Subject: Resolution No. 14 -R -58- Authorizing a
Professional Services Agreement with Ford
Engineering, Inc., relating to engineering
design services for the Pickrell Park ADA
Walkway and other matters in connection
therewith.
BACKGROUND
The City desires to construct 1,740 linear feet of sidewalk within Pickrell Park, for mobility -
challenged visitors, including an emergency vehicle access and a passenger loading area, 80 feet
long, off of Aero Avenue, and an emergency vehicle access point at the Poplar Street pavilion.
Currently, no sidewalks exist in Pickrell Park. City Council approved an application for a grant
from the Community Development Block Grant Program (CDBG) with Bexar County in
February 2013 by Resolution 13 -R -12. Approval of the City -match grant was received on June
24, 2014 in the amount of $39,005. Per requirements of the Grant, the City is required to match
funds in the amount of $39,005 for a total budget of $78,010.
Pickrell Park ADA Walkwav Budget
Engineering $9,115
Construction Not yet known
Legal $500
Advertising $500
Other Prof -Services $1000
Project Total $78,010 Available
Goal
This Resolution will allow the City to secure the engineering services necessary for bidding of
project construction to construct an ADA walkway in Pickrell Park to allow greater access for
mobility - challenged visitors.
Community Benefit
Greater accessibility to Pickrell Park for mobility - challenged visitors.
Summary of Recommended Action
Staff recommends Council approve hiring Ford Engineering, Inc., to analyze and design the
Pickrell Park ADA Walkway in the amount of $9,115.
FISCAL IMPACT
Engineering services for the project will cost $9,115. Construction costs for the project are not
yet known. The project will be funded 50% by the CDBG Grant and 50% from the Parkland
Dedication Fund.
RECOMMENDATION
Staff recommends Council approval of Resolution 14 -R -58
ATTACHMENTS
Resolution 14 -R -58
Ford Engineering, Inc., Professional Services Agreement
RESOLUTION NO. 14 -R -58
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A PROFESSIONAL SERVICES
AGREEMENT WITH FORD ENGINEERING, INC., RELATING TO
ENGINEERING DESIGN SERVICES FOR THE PICKRELL PARK ADA
WALKWAY, AND OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has determined that the City
requires professional services relating to engineering services and design services for the Pickrell
Park ADA Walkway Project, which includes 1,740 linear feet of sidewalk within Pickrell Park,
for mobility - challenged visitors, including an emergency vehicle access and a passenger loading
area, 80 feet long, off of Aero Avenue, and an emergency vehicle access point at the Poplar
Street pavilion; and
WHEREAS, City staff has determined that Ford Engineering, Inc., is qualified to provide
such services for the City; and
WHEREAS, pursuant to Section 252.022(a)(4) of the Texas Local Government Code, the
City is not required to seek bids or proposals with respect to a procurement for personal,
professional, or planning services; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Ford Engineering, Inc., pursuant to the Engineering Services Agreement attached
hereto as Exhibit A (the "Agreement ").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Ford Engineering, Inc., in substantially the form set forth on Exhibit
A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 1St day of July, 2014.
CITY OF SCHERTZ, TEXAS
Michael R. Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(CITY SEAL)
EXHIBIT A
ENGINEERING SERVICES AGREEMENT
50077397.1 A -1
AGREEMENT FOR PROVIDING LIMITED PROFESSIONAL SERVICES
Design Professional Firm: Ford Engineering, Inc. Client: City of Schertz
10927 Wye Dr, Ste 104 c/o Kathy Woodlee, P.E. - City Engineer
San Antonio, TX 78217 Address: 1400 Schertz Parkway
TBPE No. F -1162 Schertz, Texas 78154
Ph: 210- 590 -4777
Fax: 210- 590 -4940 Phone: 210- 619 -1823
www.fordengineering.com email: kwoodlee @schertz.com
Date: April 15, 2014 Project No:
Project Name /Location: Design Services for Pickrell Park ADA Walkway - Schertz, Texas
Scope /Intent and Extent of Services: See Attachment A & Attachment B
Fee Arrangement: $9,115.00 Progress invoices are due on receipt in order to prevent delays. This budget
figure will not be exceeded without authorization from Client. Should additional services within the original Scope be
required, such services will be billed at the following hourly rates:
Senior Professional Engineer (P.E.):
$150.00
Survey Tech:
$ 85.00
Registered Professional Engineer (PE):
$140.00
2 -Man Field Crew:
$125.00
Registered Professional Land Surveyor (RPLS):
$115.00
3- Man Field Crew:
$145.00
Design Engineer (E.I.T.):
$ 90.00
4 -Man Field Crew:
$165.00
CADD Tech:
$ 75.00
Clerical:
$ 55.00
CHANGES TO THE ORIGINAL SCOPE/INTENT WILL BE NEGOTIATED AS AN AMENDED OR NEW
CONTRACT /AGREEMENT.
Direct Project Expenses will be billed to Client as follows:
Additional Prints: $10.00 (large) $8.00 (small)
Federal Express, Property Research, Courier Services and Other Expenses: Amount of Invoice PLUS 15%
Client is expected to furnish FORD ENGINEERING, INC. with full information as to the Client's requirements
including any special or extraordinary considerations for the Project or special services needed and also to make
available all pertinent existing data.
Special Conditions: Client will be responsible for all fees in relation to, but not limited to, permit fees payable to the
City of Schertz, Guadalupe County, and /or any other agency.
Prepared by: Mark B. Hill, P.E.
Each individual executing this Agreement on behalf of the CLIENT or FIRM, by this execution, acknowledges that he
is duly authorized to commit the CLIENT or FIRM to this Agreement.*
Offered by:
Accepted by:
Alf it it
signature date signature date
Mark B. Hill, P.E., Principal
printed name /title
FORD ENGINEERING, INC.
printed nameltitle
name of client
The Terms and Conditions on the reverse of this form (page 2) are a part of this Agreement.
PAGE 1 OF 6
TERMS AND CONDITIONS
Terms and Conditions: To be governed by the `Agreement for Engineering Services"
between the City of Schertz, Texas and Ford Engineering, Inc. effective February 9,
2010.
Exception: Scope of Services in the "Agreement for Engineering Services" between
the City of Schertz, Texas and Ford Engineering, Inc. effective February 9, 2010 will
defer to the hourly rates listed in the "Fee Arrangement" section on Page 1 of 4 in this
Agreement.
PAGE 2OF6
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ATTACHMENT A
Our understanding of the scope of work is generally as follows: The City of Schertz desires to construct
approximately 1,740 linear feet of sidewalk within Pickrell Park, with an emergency vehicle access and a
passenger loading, 80 feet long, off of Aero Avenue, and an emergency vehicle access point at the
existing parking at Poplar St. ADA sidewalk will connect the Aero St. pavilion, the restrooms, and the
Poplar St. pavilion. An exhibit of the improvements was provided by the City and included. The sidewalk
will be 10 feet wide, reinforced concrete, and is will be considered a multi -use path with pedestrian and
bicycle general use, and occasional use by emergency vehicles.
Project Scope
Ford Engineering, Inc. will survey the existing conditions of Pickrell Park limited to areas within 50 feet
of the route shown in the City's exhibit and at the location of the passenger loading area. The survey will
include locating existing significant trees, fences, structures, playground equipment, and visible utilities
within 50 feet proximity to the route and access points. The survey will establish the existing ground
elevations and topography. The City will provide to FEI all available information on existing utilities
within the project area, including as- builts and plans of record. A basemap CAD file of the existing
conditions will be prepared based on the on- the - ground survey.
Ford Engineering, Inc. will design the proposed walkway to meet current ADA standards and have no
impact on the existing drainage patterns. The improvements will be to City of Schertz current standards of
constructions as required in the Public Works Specifications. Construction plans will generally include
cover, general notes, site plans, grading plan, and associated details sufficient to construct the project as
described above.
It is anticipated that the areas disturbed for construction will be under 1 acre, and the storm water
pollution prevention plan will be limited to a the requirements for a "small construction site ". The site is
located within the FEMA designated floodway and will require a City Floodplain Development Permit, as
wells a Certificate of No Rise. Ford Engineering, Inc. will provide the necessary standard details to
comply with the storm water pollution prevention plan requirements of the City. Ford Engineering, Inc.
will prepare the flood plain permit submittals, and will provide a letter based on standard engineering
practice regarding the potential adverse impact of the sidewalk. A hydraulic model will not be prepared.
Due to the nature of the project, Ford Engineering Inc. will accelerate the design schedule to a final
design only. FEI will prepare three 3 sets of Final construction plans, and quantity and cost estimate, for
review, approval by the City. Plans will be in conformance with City of Schertz standards of construction
and materials. It is anticipated that it will take 30 calendar days for the Final Design Phase. After the City
has reviewed the Final plans and specifications, Ford Engineering, Inc. will address any comments and
provide 3 hard copies and one PDF copy of the construction plans, quantity and cost estimate, and bid
documents to the City of Schertz for bidding of the project. It is anticipated that it will take 5 calendar
days to respond to comments. All hard copies will be 22" 04 ". PDF copy will be provided on a compact
disk.
No easements are anticipated to be required.
A representative of Ford Engineering, Inc. will attend a preconstruction meeting. FEI will not be required
to attend review meetings, public meetings, pre -bid meetings, pre -bid or bid openings. Should the need
arise for a representative of Ford Engineering, Inc. to attend a one of these meetings; the time required of
FEI will be compensated at an hourly rate determined in the general contract.
Ford Engineering will provide a construction staking to consist of two benchmarks to establish horizontal
and vertical control; we anticipate the contractor will perform all additional construction staking. Ford
Engineering, Inc. will not be required to make site visits during construction. Ford Engineering, Inc. will
PAGE 3OF6
review four (4) monthly payment applications by the contractor, and provide recommendations to the City
for payment. If the project lasts longer than 4 months, or requires additional monthly payment application
review, the time required of FEI will be compensated at an hourly rate determined in the general contract.
A representative of Ford Engineering, Inc. will accompany the City in the final project inspection. The
City will provide FEI with the contractor redlines and FEI will prepare one hard copy and one PDF copy
of the plan of record, and will provide a CAD file in AutoCAD format to the City.
Engineering Fee
Compensation for these services will be in the amount of $9,115.00 which will cover all costs associated
with the scope described above. See attached work -hours sheet for estimated time per task.
PAGE 4OF6
ATTACHMENT B
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Agenda No. 7
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department: Engineering / Public Works
Subject: Ordinance No. 14 -D -17 - An Ordinance by
the City Council of the City of Schertz,
Texas providing that the Code of Ordinances
of the City of Schertz, Texas be amended by
revising Article V, Section 86 -149 Parking
Prohibited on Roadways Maintained by the
City of Schertz. (First Reading)
BACKGROUND
At the regular TSAC meeting on January 9t' a resident spoke about traffic concerns on Silvertree
Blvd. Staff visited the site and took traffic counts in the area to try to alleviate their safety
concerns. Silvertree Blvd begins as a 42 -foot pavement width cross section connecting into FM
3009. Within the area of concern the roadway necks down to a 30 -foot pavement width roadway
with nearly a 90- degree curve. Also, in the transition section there is a commercial driveway
apron and after the curve there are single residential lots fronting the roadway and an intersecting
roadway. Staff recommends prohibiting parking from the pavement width transition around the
curve to the intersecting roadway. This would result in approximately 210 -feet of no parking on
the northeast side of Silvertree and 240 -feet of no parking on the southwest side of the road. On
April 8, 2013 staff took the ordinance relating to the parking prohibited zone to council.
Council's direction to staff was to go back and try to work with the business to find potential
areas for parking or possible schedule changes to alleviate the parking on Silvetree Blvd. Silver
Tree Nursing and Rehab Management agreed to speak with their staff and ask them not to park
on the road if spots were available in their lot. City staff also concluded that the parking lot
provided more than enough spaces according to the parking requirements at the time the business
at platting, as well as more than enough required by our current. Staff monitored the area for a
month and found that typically only two cars were parking on the roadway on a daily basis. Only
on one were more than the two cars observed and that was determined to be a pay day for the
business.
TSAC discussed the initial decision and the additional research accumulated by staff at their
regular June 5, 2014 meeting and the consensus was to forward the recommendation to Council
for reconsideration of the original no parking areas.
Goal
To ensure that all streets maintained by the City are currently listed and up to date in the City
Code Ordinance and to alleviate the sight issues due to parking along Slivertree Blvd. to ensure
that the citizens of Schertz have safe methods to exit their subdivision.
Community Benefit
City Ordinances are current and up to date regarding all streets owned maintained by the City to
strive to provide for the safety of the citizens of Schertz.
Summary of Recommended Action
Recommend approval on final reading to prohibit parking on Silvertree Blvd. as shown in
Exhibit A.
FISCAL IMPACT
The fiscal impact will be $320.00 for no parking signs paid out of FY 2013 -14 approved budget
account number 101- 359 - 551600 Street Maintenance
RECOMMENDATION
Staff recommends Council approve on final reading Ordinance No. 14 -D -17 to amend Article 5,
Section 86 -149 Parking Prohibited of the Code of Ordinances to include specific areas on
Silvertree Blvd. as shown in Exhibit A.
ATTACHMENT
Ordinance No. 14 -D -17
Exhibit A
ORDINANCE NO. 14 -D -17
AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF
SCHERTZ, TEXAS BE AMENDED BY REVISING ARTICLE V, SECTION 86-
149 PARKING PROHIBITED ON ROADWAYS MAINTAINED BY THE CITY
OF SCHERTZ; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, it has been established that Silvertree Blvd. from the intersection of
Silvertree Blvd. and Dove Meadows to 110 -feet southeast of Idlewood on Silvertree
Blvd. is not covered under Article V, Section 86 -149 Parking Prohibited of the City Code
of Ordinances.
WHEREAS, it is recommended to add this area to the City Code of Ordinances
under Article V, Section 86 -149, Parking Prohibited.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF SCHERTZ, TEXAS:
Section 1. Article V, Section 86 -149 of the Code of Ordinances, Parking
Prohibited on Roadways Maintained by the City of Schertz, Texas is amended to add the
following:
Street
Extent
Silvertree Blvd. No Parking on Silvertree Blvd. from the intersection
of Silvertree Blvd. and Dove Meadows to 110 -feet
southeast of Idlewood on Silvertree Blvd.
Section 2. The recitals contained in the preamble hereof are hereby found to
be true, and such recitals are hereby made a part of this Ordinance for all purposes and
are adopted as a part of the judgment and findings of the Council.
Section 3. All ordinances and codes, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance authorized herein are hereby repealed
to the extent of such conflict, and the provisions of this Ordinance shall be and remain
controlling as to the matters resolved herein.
Section 4. This Ordinance shall be construed and enforced in accordance with
the laws of the State of Texas and the United States of America.
Section 5. If any provision of this Ordinance or the application thereof to any
person or circumstance shall be held to be invalid, the remainder of this Ordinance and
the application of such provision to other persons and circumstances shall nevertheless be
valid, and the City hereby declares that this Ordinance would have been enacted without
such invalid provision.
Section 6. It is officially found, determined, and declared that the meeting at
which this Ordinance is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered at such meeting,
including this Ordinance, was given, all as required by Chapter 551, as amended, Texas
Government Code.
Section 7. This Ordinance shall be effective upon the date of final adoption
hereof and any publication requited by law.
PASSED ON FIRST READING, the 1St of July, 2014.
PASSED, APPROVED and ADOPTED ON SECOND READING, the day
of , 2014.
CITY OF SCHERTZ, TEXAS
Michael R. Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(CITY SEAL)
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Agenda No.8
CITY COUNCIL MEMORANDUM
City Council Meeting: July 1, 2014
Department: Development Services
Subject: Ordinance No. 14 —K -31
Conduct a public hearing and consider
action on an Ordinance closing and
abandoning to the abutting property owners
a twenty (20) foot wide alley that runs
parallel to the 800 Block of Main Street.
BACKGROUND
Goal
The City wishes to abandon a portion of the twenty foot (20') alley south of the 800
Block of Main Street adjacent to the Union Pacific Railroad (referred to as the "Alley
Segment ") for a distance of approximately 305 linear feet. The alley was grass covered
versus gravel or asphalt and portions of it has been used by adjoining property owners.
Improvements have been made to certain lots which resulted in an encroachment into the
alley. The City issued building permits for certain improvements at 806 Main Street (Lot
9) in 2003; and at 810 Main Street (Lot 11) in 1998 and 2007 which resulted in
encroachments into the twenty foot (20') alley. The alley should have been abandoned for
each of those lots where the encroachments were created at that time.
The owners of Block 1, Lots 9, 10 and 11 have recently listed their property for sale and
have an interested buyer, and it was at the title company where the closing of the contract
stalled because the title company discovered the encroachments into the alley of Lots 9
and 11. It was at that time that the property owner contacted staff to request the City's
assistance to abandon the subject alley so they could get clear title of their property.
As staff researched the properties, it was discovered that a portion of the subject alley
was abandoned by a previous replat of Redroc Subdivision in 2007 for Block 1, Lots 3, 4,
5, and 6; leaving the subject lots 7, 8, 9, 10 and 11 with the alley still in place.
The City desires to abandon the portion of the "Alley Segment" south of Block 1, Lots 7,
8, 9, 10 and 11 of the Ebert Subdivision and to transfer ownership to the adjoining
property owners as specified in the associated Ordinance.
City Council Memorandum
Page 2
Community Benefit
The conveyance of the Alley Segment to each of the property owners will enable those
who have made improvements to their respective lots and that have entered into a
contract of sale to obtain a clear title. Others will have the ability to make future
improvements without the concern of an encroachment. The City will have relinquished
the Alley Segment as was originally intended.
Summary of Recommended Action
City staff recommends abandoning the Alley Segment by quitclaim deed and conveying
the twenty foot (20') alley to adjacent property owners as described in Ordinance 14 -x-
31.
FISCAL IMPACT
None
RECOMMENDATION
Staff recommends approval of Ordinance No. 14 -K -31.
ATTACHMENT
Ordinance No. 14 -K -31
ORDINANCE NO. 14 -K -31
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS, CLOSING AND ABANDONING TO THE
ABUTTING PROPERTY OWNERS A TWENTY FOOT (20) WIDE
ALLEY IDENTIFIED AS THAT SEGMENT OF AN ALLEY THAT RUNS
PARALLEL TO THE 800 BLOCK OF MAIN STREET; AND
ESTABLISHING AN EFFECTIVE DATE HEREOF
WHEREAS, the City of Schertz, Texas, a home rule municipality, has established a
public alley immediately to the south of Main Street, as more further described on Exhibit "A ",
attached hereto, (hereinafter the "Alley "); and
WHEREAS, the Alley located entirely within the Ebert Tract Subdivision and is
abutted to the north by Lots 7 through 11, of Block 1 of the Ebert Tract subdivision
(hereinafter the "Lots "); and
WHEREAS, as a result of the Redroc replat, the Alley no longer connects to a
public street; and
WHEREAS, the Alley is abutted to the south by a Union Pacific right -of -way
easement; and
WHEREAS, pursuant to Section 311.007 of the Texas Transportation Code, a home -
rule municipality may vacate, abandon, or close a street or alley.
WHEREAS, the said City of Schertz has caused studies and inquiries to be made of
the public in general and utility entities who might be directly affected; and
WHEREAS, no detriment or hazard to the City of Schertz or its citizens has been found;
and;
WHEREAS, on the 1St day of July, 2014, a Public Hearing was held to allow members of
the public to give testimony, and comment, on the merits of the Alley closure.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF SCHERTZ, TEXAS:
Section 1. That the recitals contain in the preamble hereto are hereby found
to be true and such recitals are hereby made a part of this Ordinance for all purposes
and are adopted as a part of the judgment and findings of the Council.
Section 2. That the City Council finds that such closure and abandonment as
requested will cause no harm or injury to the City of Schertz or its citizens.
Section 3. That the Alley as depicted on Exhibit "A ", is hereby closed and
abandoned to the abutting owners, and as authorized by Section 311.007 of the Texas
Transportation Code and Section 272.001(b)(2) of the Texas Local Government Code.
Section 4. That the City Manager is hereby authorized to execute Quit Claim Deeds
in substantially the same form as set out in Exhibit "B ", and such other instruments and
documents that are reasonably necessary to effectuate the purpose of this Ordinance.
Section 5. That should any section, clause, or provision of this ordinance be declared
by a court of competent jurisdiction to be invalid, the same shall not affect the validity of this
ordinance or any other ordinance of the city as a whole or any part thereof, other than the part so
declared to be invalid.
Section 6. That it is officially found, determined and declared that the meeting at
which this Ordinance is adopted was open to the public and public notice of the time, place,
and subject matter of the public business to be considered at such meeting, including this
ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code.
Section 7. This Ordinance shall be effective upon the date of final adoption
hereof and any publication required by law.
Section 8. This Ordinance shall be cumulative of all other ordinances of the City
of Schertz, and this Ordinance shall not operate to repeal or affect any other ordinances of
the City of Schertz except insofar as the provisions thereof might be inconsistent or in
conflict with the provisions of this Ordinance, in which event such conflicting provisions,
if any, are hereby repealed.
Approved on first reading the 1St day of July, 2014
PASSED, APPROVED and ADOPTED on final reading the 8th day of July, 2014.
CITY OF SCHERTZ
Michael R. Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(CITY SEAL)
EXHIBIT A
Alley Segment South of Block 1, Lots 7, 8, 9, 10 and 11
Ebert Tract
CI Cc k,
NW
Block- 1
Lot 20
CP-,Y
N si � Ow'
it V-101'r
City of Schertz
Exhibit A -1
D 25 £U IM 1Sq
EXHIBIT B
Form of Quitclaim Deed
After recording, return to:
Denton, Navarro, Rocha, Bernal, Hyde & Zech
ATTN: Charles Zech
2517 N. Main Avenue
San Antonio, TX 78212
QUITCLAIM DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
STATE OF TEXAS §
§ KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF GUADALUPE §
THAT CITY OF SCHERTZ, TEXAS a Texas municipal corporation (the "Quitclaimor "), for
good and valuable consideration from , (the "Quitclaimee "), the receipt and
sufficiency of which are hereby acknowledged, has QUITCLAIMED, and by these presents does
QUITCLAIM unto the Quitclaimee, all of its right, title, and interest in and to certain real
property, together with all improvements thereon and all rights and appurtenances thereto,
situated in Guadalupe County, Texas, as more particularly depicted on Exhibit A attached hereto
and made a part hereof for all purposes (collectively, the "Property ").
The Quitclaimor makes no warranties or representations concerning the extent of its right, title,
or interest in or to the Property, and the Quitclaimee understands and agrees, by acceptance of
this Quitclaim Deed, that the Quitclaimor shall be under no obligation to defend title to the
Property against any third party claims to the Property or any portion thereof.
TO HAVE AND TO HOLD all of the Quitclaimor's right, title, and interest in and to the
Property unto the Quiclaimee, its heirs, successors, and assigns, forever, so that neither the
Quitclaimor nor its successors or assigns shall at any time hereafter have, claim, or demand any
right or title to the Property or any part thereof.
[Signature and acknowledgment on the following page]
C
EXECUTED this day of , 2014.
QUITCLAIMOR:
CITY OF SCHERTZ, TEXAS,
a Texas municipal corporation
LIM
THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
John C. Kessel
City Manager
This instrument was acknowledged before me on the day of ,
2014, by John C. Kessel, the City Manager of the City of Schertz, Texas, a Texas municipal
corporation, on behalf of said City.
[NOTARY SEAL]
Notary Public in and for the State of Texas
Exhibit A to Quitclaim Deed
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11,,-1
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LOT. 8
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City of chertz w E
Exhibit A +
Jesus J. & Frances K Misel Gomez 6
(Block 1, Lot 8, Ebert Tract) il ,D 20 40 w sow
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