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14-R-54 - Cobb, Fendley & Associates, IncORIGINAL 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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 I" day of July, 2014. CITY OF TZ EXAS Michael Carpenter, Mayor ATTEST: ienda Dennis, City Secretary (CITY SEAL) 50506887.1 EXHIBIT A ON CALL CONSTRUCTION ENGINEERING SERVICES MASTER AGREEMENT 50506887.1 A -1 C� oOPS7 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 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 Page 7 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 Englneering 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 underthe 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 J '2014. CITY• By: Name: hn C. Xessel Title: City Manager 01111 VA-M IzaLRIIDi=A 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 .O ,�. %��. '_ Gti JaJ PROFESSIONAL Cobb, Fendley & Associates, Inc. 13430 Northwest Freeway, Suite 1100 Houston, TX 77040 On Call Engineering Services Master Agreement CobbFendley 2014 Page sots 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 N,04EAND 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 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. 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 Guidat ce 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 03 1220 14 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 famished 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 seated 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 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 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. 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 disputc(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 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 properly 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 1 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 03122014 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 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. 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. 12.2 CITY reserves the right to review the insurance requirements of this Article during the effective period of this contract and any extension or renewal hereof and to request modification of insurance coverage's and their limits when deemed necessary and prudent by CITY'S Risk Manager based upon changes in statutory law, court decisions, or 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 +r'epongble 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;.eftnsion hereof, at CONSULTANT'S sole expense, insurance coverage written @,nAn - occurrence or claims made basis, as appropriate, by companies authorized and;.appmd to do business in the State of Texas and with an A.M. Best's rating of no less thap _A- (VII), in the following types and for an amount not less than the amount listed:; INSURANCE R -P—WAR ENTS 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) Staluiory .$$'Fo,000, 000 /$1,000,000,000 /$1,000,000,000 E1&%.- bodily Injury and Property Damage of 00 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 's1A.0,000 per claim to pay on behalf of the ins &M' all sums, which the insured shall become legally obligated to pay as damages to :the extent caused by any negligent act, error, or ,pinission in the performance of professional °:seryaees. *Alternate Plans must be approved by CITY'S Risk Manager * *If applicable 12.4 CITY may request and without expense to CITY, to inspect copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by CITY, and may request the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such 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 fi-om 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 perforniing 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. 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 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. ARTICLE 14: CLAIMS AND DISPUTES 14.1 Defmition. 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 swom 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 hnmunity. 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. Project Agreement for Engineering Services rev 03122014 Page 26 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. 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. 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 03122014 Page 28 IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Agreement effective as of 20_ (the "Effective Date "). CITY OF SCHERTZ CONSULTANT CITY MANAGER Consultant Name TITLE Project Agreement for Engineering Services rev 03122014 Page 29 ATTACHMENT1 PROJECT SCOPE OF SERVICES Project Agreement for Engineering Services rev 03122014 Page 30 ATTACHMENT 2 PROJECT DESIGN PHASES COST AND TIMELINE PROJECT PHASE ESTIMATED COST TIME IN CALENDAR DAYS Preliminary Engineering Report 30% Design 60% Design 90% Design Bid Phase Construction Phase including Closeout TOTAL ESTIMATED COST (NOT -TO- EXCEED AMOUNT) Project Agreement for Engineering Services rev 03122014 Page 31 ATTACHM ENT 3 BILLING RATE SCHEDULE Project Agreement for Engineering Services rev 03122014 Page 32 ATTACHMENT 4 ADDITIONAL SERVICES AND /OR EXPANDED SCOPE OF SERVICES CITY OF SCHERTZ CITY MANAGER CONSULTANT Consultant Name TITLE Project Agreement for Engineering Services rev 03122014 Page 33 EXHIBIT B COBB, FENDLEY & 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 1HR 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 ...................................................................... ............................... $165.00 /HR 3 -Man Survey Crew ........................ 2 -Man Survey Crew ........................ 1 -Man Survey Crew ........................ Construction Manager .................... Senior Field Construction Observer Field Construction Observer........... Utility Specialist .............................. Telecommunications Designer......., Telecommunications Fieldman......., GIS Manager ..................... GIS Analyst ........................ Right -of -Way Agent ........... Administrative .................... Clerical....... ............................... $145.00 /HR ..................................... ............................... $125.001HR ..................................... ............................... $105.00 /HR .................(Professional IV)* ...................... $165.00/HR .................(Professional 1) *......................... $105.00 1HR ................. (Technician II)* ............................ $90.00 /HR ................. (Professional II) *........................ $125.00 1HR .................(Technician II) *....... ..................... $95.00 /HR' .................(Technician 1 ) *............................. $75.00 /HR ................. (Professional III) *....................... $145.00 1HR .................(Technician II) * .... ........................ $95.00 /HR ........................................................... I........ $110.00/HR ...................................... ............................... $90.00 /HR ....................................... ............................... $65.00 /HR * Category labels'Professlonal oaf etc. are Interim designations for 2014 and are to be Implemented In 1'ieu of previous position titres In 2015. EXHIBIT B to CITY OF SCHERTZ ON -CALL ENGINEERING SERVICES MASTER AGREEMENT EXHIBIT B COBB, FENDLEY & ASSOCIATES. INC. 2014 STANDARD RATE SCHEDULE #660 January 1, 2014 — December 31, 2014 (Continued) _� M Q1 14 4 01 Level C & D (Without Level B) ............................. Level B — Designation (Without Level C & D) ....... Level A — Location (Non- Destructive Excavation): $0.45 /Foot .. ............................... $1.43 /Foot > Vertical Depth: 0 Ft. — 5 Ft . ............................ ................... ... .. .................. $1,125/Hole 5 Ft. — 8 Ft . ...................................................................... $1,580 /Hole 8 Ft. — 13 Ft . .................................................................... $1,825 /Hole 13 Ft.— 20 Ft . ........................................... ......................... $2,510 /Hole > 20 Ft . ........................ ................ ........................... ...... $3,600 /Hole Ground Penetrating Radar .............................. .................................................................. $250 /HR SUE Technician (With Equipment) ............................................................ .........................$98 /HR Vacuum Excavation Truck with 2 Technicians ....................................................... ........... $250 /HR Traffic Control Officer ................................................................. ..............................@ Cost+ 10% Traffic Control (Lane Closures, etc.) .................................... ............................... To Be Negotiated Permits(Local, State, etc.) ..............................:.......................... ..............................@ Cost + 10% Designation & Traffic Control Vehicles ........................................... ............................... $3.40 /Mile LocationVehicles ............................................................................ ............................... $6.80 /Mile REIMBURSABLE EXPENSES TechnologyFee ( *) ........................................................................... ............................... $3.751HR 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 > MylarPrints ............................................. ............................... .........................$12.00 /Each > Vellum Prints ..................................................................... ............................... $9.00 /Each ( *) Technology charges added to each hlllable man -hour. EXHIBIT B COBB, FENDLEY & ASSOCIATES. INC. 2014 STANDARD RATE SCHEDULE #660 January 1, 2014— December 31, 2014 Principal / Chief Engineer Senior Engineer............ Senior Project Manager Project Manager.... Senior Hydrologist. Project Engineer III Project Engineer II. Project Engineer I.. Senior Technician.. Technician III Technician II ............. Technician I .................. Licensed State Land Surveyor ........... .................. (Professional VIII)* ........ ........... ..................(Professional VII) *......... ............................. (Professional VI)* .......... ............................. (Professional V)* ........... ........... .................. (Professional V)* ........... ............................. (Professional III) *........... ............................. (Professional II) *............ ............................. (Professional I) *............. ......... ....................(Technician IV) *............. ......... ....................(Technician III) *............. ......... ....................(Technician II) *.............. ......... ....................(Technician I) *............... .......... ..................(Professional VI) *.......... Registered Professional Land Surveyor . ..................(Professional III) *........... 4 -Man Survey Crew .......................................................... ............................... 3 -Man Survey Crew ........................ 2 -Man Survey Crew ........................ 1 -Man Survey Crew ........................ Construction Manager .................... Senior Field Construction Observer Field Construction Observer........... Utility Specialist .............................. ....................... (Professional IV)* ......... ....................... (Professional 1) *............ ... ....................(Technician II) *............. ....................... (Professional I[)* ........... Telecommunications Designer ............. ....................(Technician II) *............ Telecommunications Fieldman ............. ....................(Technician 1) *............. GIS Manager ........... ............................... ..................(Professional III) *......... GIS Analyst ............ ............................... ....................(Technician II) *............ Right -of -Way Agent ........................................................ ............................... Administrative................................................................. ............................... Clerical ................ .......... $250.00 /HR .......... $235.00/HR .......... $200.00 /HR .......... $180.00 /HR .......... $180.00 /HR .......... $145.00/HR .......... $125.00/HR .......... $105.00 /HR .......... $120.00 /HR .......... $105.00 /HR ............ $95.00 /HR ............ $75.00 /HR .......... $200.00 /HR .......... $145.00/HR .......... $165.00/HR .......... $145.00 /HR $125.00/HR $105.00 /HR $165.00/HR $105.00 /HR $90.00 /HR $125.00/HR ........ $95.00 /HR ........ $75.00 /HR ...... $145.00/HR $95.00 /HR .... $110.00 /HR ..... $90.00 /HR ..... $65.00 /HR * Category labels 'Professional mf etc. are interim designations for 2014 and are to be Implemented In lieu of previous position Was in 20M EXHIBIT B to CITY OF SCHERTZ ON -CALL ENGINEERING SERVICES MASTER AGREEMENT EXHIBIT B COBB, FENDLEY & ASSOCIATES. INC. 2014 STANDARD RATE SCHEDULE #660 January 1, 2014 — December 31, 2014 (Continued) 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 ............. ............................... $3,600 /Hole Ground Penetrating Radar ......................................... ............................... ........................$250 /HR SUE Technician (With Equipment) .................................. .............................. .... ................. $98 /HR Vacuum Excavation Truck with 2 Technicians ................................... ............................... $250 /HR Traffic Control Officer ................................................................. ..............................@ Cost+ 10% Traffic Control (Lane Closures, etc.) .................................... ............................... To Be Negotiated Permits(Local, State, etc.) ......................................................... ..............................@ Cost+ 10% Designation & Traffic Control Vehicles ........................................... ............................... $3.40 /Mile LocationVehicles ............................................................................ ............................... $6.80 1Mile REIMBURSABLE EXPENSES TechnologyFee (*) ....................... ............ ................................ .... ............................ ....... $3.75/HR Consultant or Specialty Contractor (Outside Firm)_ ................................. ............. @ Cost + lo% 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 I V 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 > MylarPrints .................................................. ............................... ....................$12.00 /Each > Vellum Prints ..................................................................... ............................... $9.00 /Each (') Technology charges added to each blllable man -hour.