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12-R-101 3rd Amendment to Ford Engineering ContractRESOLUTION NO. 12-R-101 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A THIRD AMENDMENT TO A PROFESSIONAL SERVICES AGREEMENT WITH FORD ENGINEERING, INC., AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City") has determined that the City requires a third amendment to the existing professional services agreement with Ford Engineering, Inc. relating to engineering services for the City; and WHEREAS, City staff has determined that Ford Engineering, Inc. is urriquely qualified to provide such services for the City; and WHEREAS, pursuant to Section 252.022(a)(4), the City is not required to seek bids or proposals with respect to a procurement for personal, professional, or planning purposes; and WHEREAS, the City Council has determined that it is in the best interest of the City to contract with Ford Engineering, Inc. pursuant to the Third Amendment to Agreement for Engineering Services attached hereto as Exhibit A (the "Agreement"). THAT: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with Ford Engineering Inc, in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section S. 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 30th day of October, 2012. CITY OF SCHER~TZ, TEXAS ~`f-g~l ~ Mayor ATTEST: ~~~ ~~ City Secretary CITY SEAL) 50506887.1 EXHIBIT A THIRD AMENDMENT TO AGREEMENT FOR ENGINEERING SERVICES 50506887.1 A_ j THIRD AMENDMENT TO AGREEMENT FOR ENGINEERING SERVICES This Third Amendment to Agreement for Engineering Services (this "Amendment") is dated October 30, 2012 (the "Effective Date") and is entered into by the City of Schertz, hereinafter called "CITY", and Ford Engineering, Inc., hereinafter called "FORD", and amends the Agreement for Engineering Services dated February 9, 2010, as the same was amended by the First Amendment to Agreement for Engineering Services dated October 1, 2011 and by the Second Amendment for Engineering Services dated April 1, 2012 (collectively, the "Original Agreement") between CITY and FORD. I. TERM OF AMENDMENT 1.1 This Amendment shall remain in effect from October 30, 2012 to the earlier of April 30, 2013, or the appointment by the City Manager of CITY of a new designated City Engineer. II. SCOPE OF SERVICES 2.1 In addition to FORD's obligations and rights under the Original Agreement as further described in Section 7.1, FORD agrees to undertake the following additional duties and to provide the following additional services during the term of this Amendment: 2.1.1 Ed Ford, CEO of FORD, shall serve as interim City Engineer. In such capacity, he, or the principal day-to-day contact at FORD, shall sign plans and plats on behalf of the CITY, advise and make recommendations to City management and staff regarding development issues, attend meetings of and advise as necessary, City Commissions including but not limited to Development Services, Planning and Zoning, Transportation Safety Advisory Commission, Economic Development Commission, and provide engineering analysis and recommendations to staff and management when requested. He may in writing delegate some or all of such duties to Larry Busch Jr., who is the Assistant City Engineer. Ed Ford shall not act as the City Engineer as contemplated in the Original Agreement or in the two similar agreements between CITY and Professional Engineering Design Group and Vickery & Associates, respectively; Larry Busch Jr., in consultation with the City Manager or his designee, shall perform the City Engineer's obligations as described in such agreements. 2.1.2 Mark Hill of FORD shall be the principal day-to-day contact at FORD for the services to be provided by FORD to CITY under this Amendment. III. COMPENSATION FOR AMENDMENT SERVICES 3.1 CITY shall compensate FORD for its services in accordance with the Rate Schedule included as Attachment 1. FORD shall invoice CITY on a biweekly basis for its services and out-of-pocket expenses hereunder, providing all necessary supporting documentation, and CITY shall pay such invoices within ten (10) working days of receipt. IV. COORDINATION WITH CITY 4.1 FORD representatives shall hold regular conferences with the City Manager or his designated representatives to coordinate the services to be provided by FORD hereunder. To assist FORD in this coordination, CITY shall make available for FORD's use all existing plans, maps, statistics, computations and other data in its possession relative to existing facilities and to a particular project, at no cost to FORD. However, any and all such information shall remain the property of CITY and shall be returned by FORD upon termination or completion of the Project or if instructed to do so by the City Manager. 50506890.1 -1- V. TERMINATION 5.1 This Amendment may be terminated by either party by ten (10) days' written notice to the other party. Termination of this Amendment shall not affect the Original Agreement. VI. INDEMNIFICATION 6.1 FORD, WHOSE WORK PRODUCT AND SERVICES ARE THE SUBJECT OF THIS AMENDMENT, AGREES TO INDEMNIFY AND HOLD CITY, ITS ELECTED OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS BY THIRD PARTIES, LAWSUITS, JUDGMENTS, COSTS, 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 OR BY FORD, ANY AGENT, OFFICER, ENGINEER, REPRESENTATIVE, EMPLOYEE OF FORD OR SUBCONSULTANT OF FORD, AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, ENGINEERS AND REPRESENTATIVES WHILE IN THE EXERCISE OF PERFORMANCE OF THE SERVICES, RIGHTS OR DUTIES UNDER THIS AMENDMENT. 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 FORD 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. 6.2 FORD shall advise CITY in writing within 24 hours of any claim or demand against CITY or FORD, known to FORD, related to or arising out of FORD's activities under this Amendment. 6.3 The provisions of this Article 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. VII. ORIGINAL AGREEMENT 7.1 The Obligations of CITY and FORD under this Amendment shall not affect CITY's or FORD's obligations under the Original Agreement except to the extent explicitly set forth herein. VIII. SEVERABILITY 8.1 If., for any reason, any one or more paragraphs of ,this Amendment are held invalid or unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the remaining paragraphs of this Amendment but shall be confined in its effect to the specific section, sentences, clauses or parts of this Amendment held invalid or unenforceable, and the invalidity or unenforceability of any section, sentence, clause or parts of this Amendment in any one or more instance shall not affect or prejudice in any way the validity of this Amendment in any other instance. IX. ENTIRE AGREEMENT 9.1 This Amendment, together with Attachment 1 and the Original Agreement, represents the entire and integrated agreement between CITY and FORD and supersedes all prior negotiations, 50506890.1 _p_ representations, or agreements, either oral or written. This Amendment may be amended only by written instrument signed by both CITY and FORD. X. VENUE 10.1 The obligations of the parties to this Amendment shall be performable in the City of Schertz, which is 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. XI. NOTICES 11.1 Except as may be provided elsewhere herein, all notices, communications, and reports required or permitted under this Amendment 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 (5) calendar days of mailing. Notices provided via E-MAIL shall be deemed communicated as of the next business day after the notice is sent. If intended for CITY, to: City of Schertz, 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager If intended for FORD, to: Ford Engineering, Inc. 10927 Wye Street, Suite 104 San Antonio, TX 78217-2642 Attention: Ed Ford XII. INDEPENDENT CONTRACTOR 12.1 In performing services under this Amendment, FORD is acting in an independent contractor relationship with the CITY. By the execution of this Amendment, FORD and CITY do not change the independent contractor status of FORD. FORD shall exercise independent judgment in performing its duties and obligations under this Amendment and is solely responsible for setting working hours, scheduling or prioritizing the work flow and determining how the services described in Section 2.1.3 and Attachment 1 are to be performed. No term or provision of this Amendment or act of FORD in the performance of this Amendment shall be construed as making FORD the agent, servant or employee of CITY, or as making FORD 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. 50506890.1 _3. IN WITNESS WHEREOF, the parties to this Amendment hereby execute this Amendment effective as of the Effective Date. CITY OF SCHERTZ FORD ENGINEERING, INC. sy: ~ By John C. Kesel, City Manager 50506890.1 g.1 ATTACHMENT1 SCOPE OF SERVICES Principals, P.E. $155.00 Sr. Engineers, P.E. $145.00 Engureers, P.E. $135.00 Engineer Li Training (E.LT.) $ 85.00 Design Tech $ 85.00 CARD Tecluucians I $ 55.00 CADD Tecluiiciv~s II $ 65.00 CADD Tecluiician III $ 75.00 Clerical Staff $ 50.00 Registered Professional Land Surveyor, (R.P.L.S.} $110.00 Survey Tecluuciam'CADD $ 80.00 Oue-Person Survey Crete $102.00 Two-Person Surey Crew $120.00 T11ree-Person Storey Crer~~ $140.00 Four-Person Snney Cretin $160.00 Reimbursables billed at cost plus 15>'0 50506890.1 Attachment 1, Page 1