22-R-96 Amendment Project-Woman Hollering Creek Wasterwater lineRESOLUTION NO. 22 -R -96
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS, AUTHORIZING AMENDMENT 5 TO THE PROJECT
AGREEMENT WITH COBB, FENDLEY & ASSOCIATES, INC., RELATING
TO CONSTRUCTION PHASE ENGINEERING SERVICES FOR THE
WOMAN HOLLERING CREEK WASTEWATER LINE PROJECT, AND
OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has determined that the City
requires professional services relating to the construction phase engineering responsibilities for the
Woman Hollering Creek Wastewater Line Project that exceed the original project agreement scope;
and
WHEREAS, City staff has determined that Cobb, Fendley & Associates, Inc., is uniquely
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, Cobb, Fendley & Associates, Inc., is reasonably entitled to charge their current
standard rates for service to the City of Schertz; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
amend the contract with Cobb, Fendley & Associates, Inc., pursuant to the On Call Engineering
Project Agreement attached hereto as Exhibit A (the "Agreement ") and its proposed amended scope
and fee for construction phase services presented as Exhibit B ( "Amendment 5 ") for an amount of
$79,045.
WHEREAS, the City Council authorizes City Staff to expend up to a not to exceed amount of
$100,000 on further amendments to the Project Agreement, if needed.
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 Amendment to the Agreement with Cobb, Fendley & Associates, Inc., in substantially the
form set forth on Exhibit B and to execute further Amendments as necessary not to exceed an
additional expenditure amount of $100,000.
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provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of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 13th day of September, 2022.
ATTEST:
Bren a Dennis, City Secretary
(CITY SEA
CITY OF SCHERTZ, TEXAS
Ru1'ph Gut ez, Mayor
EXHIBIT A
ON CALL ENGINEERING PROJECT AGREEMENT
A -1
EXHIBIT "A"
CITY OF SCHERTZ
PROJECT AGREEMENT FOR ENGINEERING SERVICES
This Agreement is entered into in the City of Schertz, Texas, between the City of Schertz, a
Texas municipal corporation, hereinafter called "CITY" and/or "OWNER ", and Cobb, Fendley
& Associates, 1100 NW Loop 410, Suite 350, San Antonio, TX 78213.
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
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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.
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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 I 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.
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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
60% Design
2.4.4
90% Design
2.4.5
Bid Documents and Services
2.4.6
Construction Phase Services
2.4.7
Project Close Out and Final Payment
2.5 Upon acceptance and approval of the plans, reports or other deliverables required for a
Phase of work, as set forth in the Scope of Services, Engineer shall authorize
CONSULTANT, in writing, to proceed with the next phase of Work.
2.6 During Design Phases CONSULTANT shall:
2.6.1 Coordinate and meet with City staff and Project stakeholders as appropriate
throughout the Project. Assist staff at meetings with stakeholders, workshops,
and presentations to advisory commissions and City Council.
2.6.2 Provide the necessary field survey services to determine the existing field
conditions, including all utilities and surface features to the maximum extent
possible.
2.6.3 CONSULTANT shall make every effort to minimize utility adjustments, where
possible.
2.6.4 In the event electrical, communication, gas or other facilities are encountered,
CONSULTANT shall identify and incorporate those facilities at the completion of
each Project Phase in order to determine the magnitude of any potential
adjustment.
2.6.5 Perform the necessary testing to determine the existing site conditions and proper
design for construction and methods of any necessary demolition.
2.6.6 Follow and comply with the requirements for the Design Phases listed in this
Agreement, CITY'S Unified Development Code, if applicable, and CITY'S
Design Guidance Manual, both of which are incorporated by reference herein.
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2.6.7 In case of conflicts, follow and comply with the most stringent requirements for
the Design Phases.
2.6.8 Prepare documents for, and coordinate with other utilities and associated local,
state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits (determined during scoping for
each individual project).
2.6.9 Provide detailed plans and specifications for the Project at appropriate progress
intervals in requested formats (may include hard copy, .pdf, and Awg).
2.6.10 Provide Opinion of Probably Construction Cost.
2.7 During Bid Phase CONSULTANT shall:
2.7.1 Provide unit price bid quantities in City bid form format for use in bid documents.
2.7.2 Provide bid sets of contract, technical specifications, plans, and any other
necessary documents in hard copy and digital format.
2.7.3 Attend pre -bid conference and prepare responses to questions and addenda as
necessary.
2.7.4 Research qualifications and references of apparent low bidder(s) and provide a
letter of recommendation for contract award.
2.8 During Construction Phase:
2.8.1 CONSULTANT shall monitor construction schedule.
2.8.2 CONSULTANT will make a minimum of two visits per month to the Project Site
at intervals appropriate to the Phases to (1) become generally familiar with and to
keep CITY informed about the progress and quality of the portion of the Work
completed, and (2) endeavor to guard CITY against defects in Work. However,
CONSULTANT will not be required to make exhaustive or continuous on -site
inspections to check the quality or quantity of the Work.
2.8.3 CONSULTANT will neither have control over or charge of, nor be responsible
for, the construction means, methods, techniques, sequences or procedures, or for
the safety precautions and programs in connection with the Work since these are
solely CONSTRUCTION CONTRACTOR'S rights and responsibilities under the
Contract Documents. CONSULTANT'S efforts will be directed toward providing
for CITY a greater degree of confidence that the completed Work will generally
conform to the Contract Documents.
2.8.4 CONSULTANT will not be responsible for CONSTRUCTION
CONTRACTOR'S failure to perform the Work in accordance with the
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requirements of the Contract Documents. CONSULTANT will not have control
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
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in accordance with the design agreement documents or Construction Contract
Documents. The foregoing representations are subject to an evaluation of the
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;
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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
assurance of its continued performance within a reasonable time after
demand;
2.8.9.5 damage to OWNER or another contractor;
2.8.9.6 reasonable evidence that the Work will not be completed within the
agreement time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
2.8.9.7 persistent failure by CONSTRUCTION CONTRACTOR to carry out
the Work in accordance with the Construction Contract Documents.
2.8.10 When the above reasons for withholding payment are removed, payment will be
made for amounts previously withheld. OWNER shall not be deemed in default
by CONSULTANT by reason of withholding payment as provided herein.
2.8.11 CONSULTANT will prepare Change Orders and Field Work Directives, and,
with concurrence of OWNER, OWNER'S designated representative will have
authority to order minor changes in the Work not involving an adjustment in the
Total Compensation or an extension of the time for construction. Such changes
shall be effected by written order, which CONSTRUCTION CONTRACTOR
shall carry out promptly and record on the as -built plan.
2.8.12 Upon written request of CITY or CONSTRUCTION CONTRACTOR,
CONSULTANT will issue its interpretation of the requirements of the Plans and
Specifications. CONSULTANT'S response to such requests will be made in
writing within any agreed time limits or otherwise with reasonable promptness. If
no agreement is made concerning the time within which interpretations required
by CONSULTANT shall be furnished in compliance with Article IV, then delay
shall not be recognized on account of failure by CONSULTANT to furnish such
interpretations until 15 days after written request is made for CONSULTANT'S
interpretation.
2.8.13 Interpretations of CONSULTANT will be consistent with the intent of and
reasonably inferable from the Construction Contract Documents and will be in
writing or in the form of drawings.
2.8.14 CONSULTANT will advise and consult with CITY. CITY'S instructions to
CONSTRUCTION CONTRACTOR may be issued through CONSULTANT, but
CITY reserves the right to issue instructions directly to CONSTRUCTION
CONTRACTOR through inspectors or other designated CITY representatives.
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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 CTTY'S
review and records, written warranties and related documents required by the
Construction Contract Documents and assembled by. CONSTRUCTION
CONTRACTOR, and will issue a final Approval for Payment upon compliance
with the requirements of the Construction Contract Documents. Such final
Approval will be accompanied by a signed and sealed statement from the
CONSULTANT'S Engineer of Record that certifies to CITY that the project was
constructed in accordance with the approved plans and specifications.
2.8.17 CONSULTANT shall prepare record drawings from information submitted by
CONSTRUCTION CONTRACTOR and from CONSULTANT'S own
observations in accordance with City standards. CONSULTANT shall provide
record drawings in hard copy, .pdf, and .dwg formats to CITY.
ARTICLE 3: COMPENSATION FOR SERVICES
3.1 Basic Services
3.1.1 Compensation for all Services included in this Agreement will be on a time and
expense not -to- exceed basis in accordance with the negotiated, approved schedule
of billing rates as set forth in 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
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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.
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
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
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CONSULTANT to the extent remaining unpaid by CONSULTANT necessary to
protect OWNER.
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.
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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
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.
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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.
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
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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 ".
4.3 OWNER may withhold compensation to such extent as may be necessary, in OWNER'S
opinion, to protect OWNER from damage or loss for which CONSULTANT is
responsible, because of,
4.3.1 delays in the performance of CONSULTANT'S services;
4.3.2 third party claims filed or reasonable evidence indicating probable filing of such
claims unless security acceptable to OWNER is provided by CONSULTANT;
4.3.3 failure of CONSULTANT to make payments properly to subconsultants or
vendors for labor, materials or equipment;
4.3.4 reasonable evidence that CONSULTANT'S work cannot be completed for the
amount unpaid under this Agreement;
4.3.5 damage to OWNER or CONSTRUCTION CONTRACTOR; or
4.3.6 persistent failure by CONSULTANT to carry out the performance of its Services
in accordance with this Agreement.
4.4 When the above reasons for withholding are removed or remedied by CONSULTANT,
compensation of the amount withheld will be made within a reasonable time. OWNER
shall not be deemed in default by reason of withholding compensation as provided for in
this Article.
4.5 In the event of any dispute(s) between the parties regarding the amount properly payable
for any Phase or as final Compensation, or regarding any amount that may be withheld by
OWNER, CONSULTANT shall be required to make a claim pursuant to and in
accordance with the terms of this Agreement and follow the procedures provided herein
for the resolution of such dispute. In the event CONSULTANT does not initiate and
follow the claims procedures provided in this Agreement in a timely manner and as
required by the terms thereof, any such claim shall be waived.
4.6 OWNER shall make final compensation for all sums due CONSULTANT not more than
30 days after CONSULTANT'S final Application for Compensation.
4.7 Acceptance of final compensation by CONSULTANT shall constitute a waiver of claims
except those previously made in writing and identified by CONSULTANT as unsettled at
the time of final Application for Compensation.
4.8 CONSULTANT agrees to maintain adequate books, payrolls and records satisfactory to
OWNER and all applicable utility providers in connection with any and all Services
performed hereunder. CONSULTANT agrees to retain all such books, payrolls and
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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.
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 execution by CITY 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
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CITY'S experience and knowledge of existing needs and facilities, and be consistent with
its current policies and standards. To assist CONSULTANT in this coordination, CITY
shall make available for CONSULTANT'S use in planning and designing the Project all
existing plans, maps, statistics, computations and other data in its possession relative to
existing facilities and to this particular Project, at no cost to CONSULTANT. However,
any and all such information shall remain the property of CITY and shall be returned by
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.
ARTICLE 8: OWNERSIIIP 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
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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
CLAIM THAT MATERIALS OR WORK PROVIDED UNDER THIS
AGREEMENT CONSTITUTE AN INFRINGEMENT OF ANY PATENT, TRADE
SECRET, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
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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 Awg) 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: TERNIINATION 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
failure to perform, such termination shall become effective without further written
notice.
9.2 Right of CITY to Terminate
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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
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.
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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.
9.5.6 Upon the above conditions being met, CITY shall pay CONSULTANT that
proportion of the prescribed Compensation which the Services actually performed
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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
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circumstances surrounding this contract. In no instance will CITY allow modification
whereupon CITY may incur increased risk.
12.3 CONSULTANT'S financial integrity is of interest to CITY. Therefore, subject to
CONSULTANT'S right to maintain reasonable deductibles in such amounts as are
approved by CITY, CONSULTANT shall obtain and maintain in full force and effect for
the duration of this Agreement, and any extension hereof, at CONSULTANT'S sole
expense, insurance coverage written on an occurrence or claims made basis, as
appropriate, by companies authorized and approved to do business in the State of Texas
and with an A.M. Best's rating of no less than A- (VII), in the following types and for an
amount not less than the amount listed:
INSURANCE REQUIREMENTS
Worker's Compensation*
Employer's Liability
Commercial General (Public) Liability
insurance to include coverage for the
following:
a. Premises Operations
b. Independent Contractors **
c. Products /Completed Operations
d. Personal Injury
e. Contractual Liability
Statutory
$1,000,000 /$1,000,000 /$1,000,000
For Bodily Injury and Property Damage of
$1,000,000 per occurrence.
$2,000,000 General Aggregate, or its equivalent
in Umbrella or Excess Liability Coverage
Business Automobile Liability Combined Single Limit for Bodily Injury and
a. Owned/Leased Vehicles property Damage of $1,000,000 per occurrence
b. Non -owned Vehicles
c. Hired Vehicles
Professional Liability (Claims Made Form) $1,000,000 per claim to pay on behalf of the
insured all sums, which the insured shall
become legally obligated to pay as damages to
the extent caused by any negligent act, error, or
omission in the performance of professional
services.
*Alternate Plans must be approved by CITY'S Risk Manager
* *If applicable
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
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law or regulation binding upon either of the parties hereto or the underwriter of any such
policies). CONSULTANT shall attempt to comply with any such requests, subject to the
policy terms and conditions, and shall submit a copy of the replacement certificate of
insurance to CITY at the address provided below within 10 days of the requested change,
in the event the respective insurance companies approve the requested change(s).
CONSULTANT shall pay any costs incurred resulting from said changes.
City of Schertz
Attn: City Engineer.
10 Commercial Place
Schertz, TX 78154
12.5 CONSULTANT agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
12.5.1 Name CITY and its officers, officials, employees, and elected representatives as
additional insured's by endorsement, as respects operations and activities of, or on
behalf of, the named insured performed under contract with CITY, with the
exception of the workers' compensation and professional liability policies;
12.5.2 Provide for an endorsement that the "other insurance" clause shall not apply to the
CITY where CITY is an additional insured shown on the policy if such
endorsement is permitted by law and regulations;
12.5.3 Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of CITY; and
12.5.4 Provide 30 calendar days advance written notice directly to CITY of any
suspension, cancellation or non - renewal or material change in coverage, and not
less than 10 calendar days advance written notice for nonpayment of premium.
12.6 Within five calendar days after a suspension, cancellation or non - renewal of coverage,
CONSULTANT shall provide a replacement Certificate of Insurance and applicable
endorsements to CITY. CITY shall have the option to suspend CONSULTANT'S
performance should there be a lapse in coverage at any time during this Agreement.
Failure to provide and to maintain the required insurance shall constitute a material breach
of this Agreement.
12.7 If CONSULTANT fails to maintain the aforementioned insurance, or fails to secure and
maintain the aforementioned endorsements, CITY may obtain such insurance, and deduct
and retain the amount of the premiums for such insurance from any sums due under the
agreement; however, procuring of said insurance by CITY is an alternative to other
remedies CITY may have and is not the exclusive remedy for failure of CONSULTANT
to maintain said insurance or secure such endorsement. In addition to any other remedies
CITY may have upon CONSULTANT'S failure to provide and maintain any insurance or
policy endorsements to the extent and within the time herein required, CITY shall have
the right to order CONSULTANT to stop performing services hereunder and/or withhold
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any payment(s) which become due to CONSULTANT hereunder until CONSULTANT
demonstrates compliance with the requirements hereof.
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 HARMILESS 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 INEVIUNITY AVAILABLE TO CITY UNDER TEXAS LAW
AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS
LAW.
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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.
13.3 The provisions of Article 13 are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or
entity.
13.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
ARTICLE 14: CLAIMS AND DISPUTES
14.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of
right, adjustment or interpretation of this Agreement's terms, payment of money, and
extension of time or other relief with respect to the terms of this Agreement. The term
"Claim" also includes other disputes and matters in question between OWNER and
CONSULTANT arising out of or relating to this Agreement. Claims must be initiated by
written notice. Every Claim of CONSULTANT, whether for additional Compensation,
additional time, or other relief, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind
CONSULTANT by signature) of CONSULTANT, verifying the truth and accuracy of the
Claim. The responsibility to substantiate Claims shall rest with the party making the
Claim.
14.2 Time Limit on Claims. Claims by CONSULTANT or by OWNER must be initiated
within 30 calendar days after occurrence of the event giving rise to such Claim. Claims by
CONSULTANT must be initiated by written notice to OWNER. Claims by the OWNER
must be initiated by written notice to CONSULTANT.
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
Project Agreement for Engineering Services Woman Hollering Creek Wastewater Line Cobb
Fendley Page 25
(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.
14.5.2 Damages are limited to extra costs specifically shown to have been directly
caused by a proven wrong for which the other party is claimed to be responsible.
14.5.3 No profit will be allowed on any damage claim.
14.6 No Waiver of Governmental Immunity. NOTHING IN THIS AGREEMENT SHALL
BE CONSTRUED TO WAIVE OWNER'S GOVERNMENTAL EM MUNITY
FROM LAWSUIT, WHICH MBIUNITY 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.
Project Agreement for Engineering Services Woman Hollering Creek Wastewater Line Cobb
Fendley Page 26
17.2 CONSULTANT acknowledges that it is informed that the Charter of CITY prohibits a
CITY officer or employee, as those terms are defined in the Ethics Code, from having a
financial interest in any contract with CITY or any CITY agency.
17.3 CONSULTANT warrants and certifies, and this Agreement is made in reliance thereon,
that it, its officers, employees and agents are neither officers nor employees of CITY.
CONSULTANT further warrants and certifies that it has tendered to CITY a
Discretionary Contracts Disclosure Statement.
ARTICLE 18: CONFLICTS OF INTEREST DISCLOSURE
18.1 All consultants must disclose if it is associated in any manner with a CITY official or
employee in a business venture or business dealings. To be "associated" in a business
venture or business dealings includes being in a partnership or joint venture with the
officer or employee, having a contract with the officer or employee, being joint owners of
a business, owning at least 10% of the stock in a corporation in which a CITY officer or
employee also owns at least 10 %, or having an established business relationship as client
or customer.
ARTICLE 19: STANDARD OF CARE
19.1 Services provided by CONSULTANT under this Agreement will be performed in a
manner consistent with that degree of care and skill ordinarily exercised by members of
the same profession currently practicing under similar circumstances.
19.2 CONSULTANT shall be represented by a registered professional engineer licensed to
practice in the State of Texas at meetings of any official nature concerning the Project,
including but not limited to scope meetings, review meetings, pre -bid meetings, and
preconstruction meetings.
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
Project Agreement for Engineering Services Woman Hollering Creek Wastewater Line Cobb
Fendley Page 27
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
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 parry by depositing the same in the United States Postal Service addressed to
the applicable address shown below, unless and until either parry 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,
Project Agreement for Engineering Services Woman Hollering Creek Wastewater Line Cobb
Fendley Page 28
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.
IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Agreement
effective as of ® 2015 (the "Effective Date ").
CITY OF SCHERTZ CONSULTANT
TY MANAGER Consultant NanV
Ju lid. Ras4i n5s
TITLE �c
Project Agreement for Engineering Services Woman Hollering Creek Wastewater Line Cobb
Fendley Page 29
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
PROJECT DESCRIPTION
silo CobbFendley
This project is for to install a gravity wastewater line from the existing lift station at the Sedona /Crossvine
Subdivision at FM 1518 near the Woman Hollering Creek (this lift station will be removed), then along said
creek, approximately 11,500 feet to the intersection of Woman Hollering Creek and the IH 10 right -of -way
(project would stay out of the public right -of -way). A new lift station would be installed at this location and a
force main would be installed approximately 6,000 feet to the site of the proposed Cibolo Creek Municipal
Authority (CCMA) new wastewater treatment plant. In addition, an approximately 1,500 foot "dog -leg" gravity
main is also to be installed along an unnamed tributary and will connect to the 6,000 foot line. The attached
sketch gives our general understanding of the intended route for the wastewater lines (approximately 19,000
centerline feet).
Some areas along the proposed wastewater line route are densely vegetated. Field crews will be required to
clear brush and possibly small trees to perform survey, environmental, and geotechnical investigations.
It is understand that the wastewater line needs to be in place and operational by as soon as 2017. As such, this
proposal encompasses preliminary engineering through construction phase in order to expedite the design
process and advertise the project for bids as soon as possible.
SCOPE OF SERVICES
Preliminary, En ine eering Phase
The location of this wastewater line is generally known; however, specifics of the routing along the creek
are undetermined. The Preliminary Engineering phase will focus on determining the optimal route for the
wastewater interceptor to balance construction, property owner, and environmental concerns. Also, it is
our understanding that a Preliminary Engineering Report (PER) was prepared in 2011 and that a "Gateway
Planning" study in 2013 modified the land use assumptions made in the original PER. Our efforts will verify
the necessary line sizes per the new land use for the Woman Hollering Creek sewershed.
A. Route Analysis
Al. Gather and analyze data. Download data for route analysis.
A1.1 Property owner information
A1.2 Aerial information
A13 Topographical information
AIA Environmental information
A2. Assimilate data and prepare preliminary route options.
A2.1 Using ACAD Civil3D, put together preliminary base plan with all data shown.
A2.2 Prepare preliminary route and profile.
A3. Develop a route decision matrix
CobbFendley will determine the best routing option for the wastewater line based on our
expertise and experience. We will perform an internal decision analysis, evaluating parameters
such as property owners, environmental impacts, construction costs, etc. We will make one
alignment recommendation to the City based on this internal analysis. Multiple alignments and
decision matrix evaluations are not included in this scope of services.
A4. Prepare Preliminary Engineering Technical Memorandum summarizing analysis and results.
A4.1 Route evaluation. This brief technical memo will summarize the evaluation process and
significant decision factors involved in developing the recommended route.
A4.2 Preliminary construction cost estimate.
A4.3 Permitting requirements. CobbFendley will identify required permits and initiate
agency coordination.
B. Land Use Assumptions /Pipe Size Verification
B1. Gather and analyze data
131.1 Original Land Use from PER
131.2 Updated Info from Gateway Study
B1.3 Verify Calcs and Check Pipe Sizes
B1.4 Analyze Results
131.5 Prepare Technical Memo
II. Design Phase
During the Design Phase, CobbFendley will prepare contract and easement documents for the construction
of the wastewater line. Below is a detailed scope of services.
A Coordination and Prolect Management
Al. Coordinate ROE discussions with affected property owners
A2. Coordination meetings with the City (assume 3)
A3. Field visits / coordination meetings with surveyor, land acquisition, geotechnical, and
environmental teams (assume 2)
A4. Develop project schedule
A5. Project Management
A6. Prepare and submit monthly team invoices and project updates
B. Design Plans
CobbFendley will prepare design plans for submittal to the City at the PER, 60 %, 90 %, and Bid Document
phases. We anticipate the following sheets to be included in our design set:
B1. Cover Sheet (1 sheet)
B2. General Notes. Assemble a set of general notes using City of Schertz, TCEQ standards or other
standards as needed (assume 2 sheets)
B3. Wastewater Line P &Ps. Prepare Plan & Profile Sheets for the wastewater line at a scale
of 1 " =20' on 22 "x34" plan sheets (assume 38 sheets)
B4. Traffic Control Sheets. Traffic control is anticipated to be required for 3 possible roadway
crossings (at FM 1518 at Trainer Hale Road - two locations) along the route (assume 1 sheet)
B5. Erosion and Sedimentation Control /Tree Protection Plan. E &S and Tree Protection plan sheets
will be prepared for the alignment at a scale of 1" = 40' (assume 10 sheets)
B6. Detail Sheets. Prepare detail sheets showing invert details, standard construction details as well
as special project- specific details (assume 4 sheets)
B7. Design calculations - perform design calculations as necessary.
B8. Easement Map (1 sheet)
C. Design of New Lift Station
It is our understanding that a new sewer lift station will be part of this project. The exact size of this lift
station is currently unknown but is currently called out to be 3.6 MGD average daily flow in the Southern
Sewershed Master Plan. CobbFendley will size the required lift station (per Item 1 B., Land Use
Assumptions /Pipe Size Verification, above) and design the new lift station per the revised data.
C1. Collect LS Data
C2. Analyze Data /LS Calculations
C3. Structural Calculations /Design
C4. Construction Drawings (assume 5 sheets)
C5. Coordinate w/ Pump Manufacturer
C6. Coordinate with Electrical Engineer
C6.1 CobbFendley will coordinate with Cleary Zimmermann Engineers and provide site
drawings, review reports, and provide information required for electrical design.
C6.2 Refer to the subconsultant proposal from Cleary Zimmermann Engineers dated
October 27, 2014 for a detailed scope of services.
D. Old Lift Station Demolition/ Decomm issioninF, Plans
It is also our understanding that the old lift station at the projects starting point (at the Sedona
Subdivision) will need to be demolished and decommissioned. CobbFendley will provide the following
services in conjunction with the old lift station:
D1. Collect Old LS Data /As- Builts
D2. Data Verification /LS Calculations
D3. Demolition Drawings (assume 2 sheets)
E. Specifications
CobbFendley will assemble standard technical specifications. A table of contents will be provided with
the 60% submittal and a full set of specifications will be included with the 90% and Final submittals. City
of Schertz standard contract documents will be used for front end documents, with minor modifications
necessary for this project.
F. Quantity Take Off
CobbFendley will perform a quantity take off and prepare a bid form. A quantity take off will be
performed at the 60 %, 90% and Cid Document submittals.
G. Cost Estimate
CobbFendley will prepare an opinion of probable construction cost for the 60% ( +/ -15 %), 90% ( +/- 10 %)
and 100% ( +/- 5 %) submittals.
H. QA /QC
CobbFendley will perform quality control reviews on the plans and specifications prior to each submittal
to the City.
I. Prepare submittal packages
CobbFendley will assemble plans and specifications and submit to the City for review. This proposal
assumes there will be 60 %, 90 %, and Bid Document Set submittals. We will provide two (2) sets of full
size plans (22" x 34 ") and specifications for each submittal.
J. Respond to comments
CobbFendley will review comments provided by the City and review agencies and prepare a written
response to the comments for inclusion with the subsequent submittal.
K. Coordination /Review meetings
This proposal assumes there will be four (4) coordination meetings with the City during the design
phase.
L. Permits
Coordinate with permitting agencies as needed, to obtain required permits for construction. Some of
these entities include the City of Schertz, Bexar County, TxDOT, TCEQ, THC and USACE.
M. SurveyinF- Services
M1. Topoeraghic and Boundary Survey
The topographic survey will involve a scope area of approximately 19,000 linear feet of
centerline profile data and a width of a maximum of 75 feet along and coincident with the
proposed centerline of the Woman Hollering Creek wastewater line. We will locate data points
including spot elevations at pertinent grade breaks, any edges of pavement, tops of curb, gutter,
road center lines, top bank, centerline and grade breaks of any creeks within the scope area
described above based on 75 foot cross sections along the proposed centerline. In addition, the
survey will include the location and elevation of visible utility surface features (fire hydrants,
manholes, utility poles, down guys, drainage inlets, culverts and other drainage structures,
ditches and detention ponds within the cross - sections. This will also include box culverts,
drainage structures, bridges, and roadways.
In addition, land records will be researched to determine ownership of all land being crossed by
the proposed construction and Primary Survey Control of the Alignment Route will be set. A
boundary strip map will be prepared for use in easement determination and acquisition.
M1.1 Topo & Trees (8" and greater) for Gravity Main
M1.2 Topo & Trees (8" and greater) for Force Main
M1.3 Topo & Trees (8" and greater) for Lift Station Site
M1.4 Boundary Survey for both Gravity & Force Main Routes
M1.5 Boundary Strip Map
M1.6 Brush Clearing
M2. Easement Metes & Bounds
Once the design centerline alignment has been finalized, we will produce the required Easement
Exhibits which shall include Easements drawings and Legal Descriptions for each Permanent and
Temporary Construction Easement (TCE) required from land owners. Each Easement will consist
of printed, signed and sealed drawings with accompanying legal description in Metes and
Bounds delineation per Texas Statutory requirements. This proposal assumes that twenty -five
(25) permanent and temporary easements will be required, for a total of fifty (50) easements
and one (1) Metes and Bounds Description for the Lift Station site.
M2.1 Easements - Gravity
Estimated at 21 Permanent + 21 Temporary for a total of 42
M2.2 Easements -Force Main
Estimated at 4 Permanent + 4 Temporary for a total of 8
M3.3 Metes & Bounds — Lift Station Site (1 total)
Survey proposed lift station site and set four (4) corners. Prepare Metes and Bounds for site in
preparation for purchase (assumed fee simple purchase and not an easement).
N. Geotechnicallnvestikation
Arias & Associates, Inc., will perform a geotechnical analysis, drilling soil borings for sampling
approximately eight (8) total borings as such: one (1) at the proposed Lift Station site, four (4} at the
proposed creek crossings and three (3) at the proposed roadway crossings.
N1. CobbFendley will coordinate with Arias & Associates to determine the appropriate location for
eighteen soil borings, survey in the boring locations, and incorporate the soil boring information
into the contract documents.
N2. Refer to the revised subconsultant proposal from Arias & Associates, Inc., dated
January 6, 2015 for a detailed scope of services.
O. Environmental Investigation
CoxIMcLain will perform environmental investigations for the project to include Archeological
Resources, Jurisdictional Waters of the U.S. Assessment, Biological Resources, Hazardous Materials
Screen and will prepare an Environmental Technical Memorandum summarizing the results and
recommendations.
01. CobbFendley will coordinate with Cox IMcLain, provide alignment drawings, review reports, and
provide information required for permitting.
02. Refer to the revised subconsultant proposal from Cox1 McLain, dated January 7, 2015 for a
detailed scope of services.
III. Bid Phase
CobbFendley will assist in the bidding of the project. This proposal assumes that the City will use a bidding
assistance center and all contract documents will be distributed through the center. CobbFendley may
retain a copy for viewing, if desired, but will not be managing the document distribution. Below is a detailed
scope of services for bid phase.
A. Assist the City in preparing the advertisement for bids. This proposal assumes that the City will
coordinate with the local newspapers and pay the fee for the advertisement.
B. Attend and conduct a pre -bid conference. Prepare the meeting agenda and meeting minutes.
C. Respond to contractors questions during the bidding process.
D. Prepare addenda (assume 2) to address contractor questions.
E. Attend and conduct the bid - opening.
F. Prepare bid tabulation and check calculations.
G. Check Contractor References.
H. Prepare Recommendation of Award
I. Assist the City in obtaining executed contract documents.
IV. Construction Phase
The City proposes to bid this project utilizing the Competitive Sealed Bid method. CobbFendley will provide
construction administration and observation assistance the City. This proposal does not include inspection
services. This proposal assumes a construction duration of nine (9) months. Below is a detailed scope of
services.
A. Attend and conduct a preconstruction conference. CobbFendley will prepare the agenda, take notes,
and prepare the meeting minutes.
B. Attend periodic progress meetings. Assume monthly progress meetings for a total of nine (9).
C. Attend periodic site visits. Assume monthly site visits (not coincident with progress meetings) for a total
of nine (9).
D. Review project submittals /shop drawings. CobbFendley will review each submittal twice. If the
Contractor requires a third submittal, it will be reviewed as an additional service and at the Contractor's
expense, as will be written in the contract documents. This proposal assumes 20 (20) submittals.
E. Review pay estimates. CobbFendley will coordinate with the City's inspector on accurate quantities and
review the pay estimates for accuracy. Assume nine (9).
F. Respond to Requests for Information (RFI). CobbFendley will coordinate with the City and Contractor on
RFIs and respond with clarifications as needed. This proposal assumes ten (10) RFIs.
G. Change Orders. CobbFendley will assist the City in negotiation and preparation of change order
documents, should they be necessary. This proposal assumes three (3) change orders.
H. Final Walk Through and Punch List. CobbFendley will attend the final walk through and coordinate with
the City's inspector on the punch list items.
I. Project Close Out. CobbFendley will assist the City on closing out the contract, reviewing the final pay
application and affidavits, and preparing the Concurrence Letter.
J. Record Drawings. CobbFendley will prepare a set of record drawings based on the Contractor's redlines
in the field.
K. Construction Materials Testing (CMT) for this project is not been included in this contract.
Easement Acquisition
CobbFendley will provide easement acquisition services on an as needed basis. These services include all
activities required to acquire each easement including gathering information concerning each property, meeting
with the property owners, negotiating with the property owners, any necessary release of liens and judgments,
etc., presenting offers to property owners and negotiating final offer, and taking easement to closing. All
negotiations will follow rules and regulations of SB18.
The following services are anticipated in the parcel acquisition and fees for such are shown on the attached
exhibit. These services will be charged at an hourly rate and not to exceed the stated fee without prior City Staff
approval.
• Right of Entry (ROE) Coordination:
• Prepare ROE letters for each affected property and send to each landowner by Certified Mail.
• Compile and maintain a list of affected property owners.
• Coordinate with the land owner, City of Schertz, survey, geotechnical and archeology field crews
regarding property visitation schedule.
• Title Commitments
• Easement Acquisition:
• Prepare a property value, based on the current tax rolls and then send an offer package to each
landowner by Certified Mail (as required by law).
• Attempt to meet in person with each Owner so as to build rapport with them.
• Be the point of contact for any questions that they have. We will coordinate with the City to
obtain the information that they are requesting, but will handle all interactions with the
Owners. We will pass on any requests to the City but will continue to be the one that responds
to them so as to limit the City's time spent dealing with the Owners.
• Provide a recommendation to the City for all counters /requests of property owners based on
our experience on similar projects /parcels.
• Coordinate with all conflicting property interest holders to obtain the necessary
releases /subordinations. For instance, if there is a mortgage and lien on the property, we will
coordinate with the lender to obtain the Subordination of Lien and handle the recordation of
that document with the signed Easement.
• Should we be unable to reach an agreement, then we will coordinate with the Appraiser to get
the property appraised and will provide the Owner with a Final Offer by Certified Mail (as
required by law).
• Appraisals:
o Only needed if we are unable to reach an agreement with any property owners using the
approach mentioned above.
Should Condemnations be needed, the City may retain CobbFendley for condemnation support at an hourly rate
to be determined at that time.
Task
Preliminary Engineering
Design Phase
Design Plans
Topographic & Boundary Survey
Easement Metes and Bounds
Geotechnical Investigation
Environmental Investigation
Total Design Phase
Bid Phase
Construction Phase
Expenses
Engineering Services Total
Easement Acquisition Services
Right of Entry Coordination
Title Commitments
Easement Acquisition Services
Appraisal (if needed)
ATTACHMENT 2
PROJECT COST
$500/parcel (not to exceed)
$750/parcel (not to exceed)
$4,000 /parcel (not to exceed)
$1,800 /parcel (not to exceed)
Easement Acquistion Services Total (not to exceed)
Fee
$23,150.00
$300,610.00
$111,610.00
$44,500.00
$28,075.00
$15,132.00
$499,927.00
$13,295.00
$46,430.00
$7,045.40
$589,847.40
assuming 26 parcels
$13,000.00
$19,500.00
$104,000.00
$46,800.00
$183,300.00
Total Fee (not to exceed) $773,147.40
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ATTACHMENT 3
BILLING RATE SCHEDULE
- CO1313, FENDLEY & ASSOCIATES. INC.
2014 STANDARD RATE SCHEDULE #660
danuary 1, 2014 — December 31, 2014
Principal / Chief Engineer ...................... .................:(professional Vili)* .................... $260,00 /1-IR
Senior Engineer ....... ............................... ..................(Professional
VII)* .....................
$235.00./HR
Senior Project Manager ....... ............................... .......(Professional
Vl) *......................
$200.001HR
Project Manager ............................... I ....... ................
(Professional V)* .......................
$180.001HR
Senior Hydrologist ... ............................... ..................(Professional
V)* .......................
$f80.001HR
Project Engineer III .. ............................... ..................(Professional
Ili) *.......................
$145.00/HR
Project Engineer II ..................... ...............................
(Professional 11) *.,...................... $125.001HR
Project Engineer I ...................... ...............................
(Professional 1) *......................... $105,001HR
Senior Technician .. ............................... ....................(Technician IV)* .........................
$120.00IHR
Technician 111 ......... ............................... ....................(Technician 111) * .........................
$105,00 /HR
Technician 11 .......... ............................... ....................(Technician U)* ............................ $95.001HR
Technician I ........... ............................... ....................
(Technician 1)* ............................. $75.00MR
Licensed State Land Surveyor .. ......................... .......
(Professional VI)* ......................
$200.00 /HR
Registered Professional Land Surveyor ...................
(Professional III) *.......................
$145.00/1-IR
4 -Man Survey Crew ...................................................................
...............................
$165,00/1-113
3-Man Survey Crew ....................................................................
...............................
$145.00 /HR
2 -Man Survey Crew .....................................................................
...............................
$125.00 /HR
1 -Man Survey Crew ......................................................................
...............................
$105.0011-IR
Construction Manager ............................ ..................(Professional
IV)* ......................
$165.00/HR
Senior Field Construction Observer .........................
(Professional I) *.........................
$105.001HR
Field Construction Observer ................. .:..................(Technician
II ) *............................
$90.00 /HR
Utility Specialist ....... ............................... ..................(Professional
II) *........................
$125.00 /HR
Telecommunications designer ............ ....................(Technician
II ) *............................
$95.0011-111'
Telecommunications Fleldman ............. ....................(Technician
1) * .............................
$76.00 /HR
GIS Manager .......... ............................... ..................(Professional
Iit)* ........ I ..............
$145.00/HR
GIS Analyst .......................................... ....................(Techniclan
I I) *............................ $96.001HR
Right -of -Way Agent ......................................................................
...............................
$110.00/HR
Administrative................................................................................ ............................... $90,00 /HR
Clerical............................................................................................ ............................... $65.00 1HR
* Cat"orylabels'f �ofesslonal got' eta. are Inierlmdeetnallons for 20td and we lobe Implemented In ffou of prevIous position BOes In 2015,
EXHIBIT B to CITY OF SCHERTZ ON -CALL ENGINEERING SERVICES MASTER AGREEMENT
COBS FENDLEY & SS0Q1A S I C.
2014 STANDARD RATE SCHEDULE #660
January 1, 2014 — December 31, 2014
(Continued)
UUBSU11FACE UTILITY ENGINEERING
Level C & D (Without level B) .............................. ............................... ..........................$0,45 /Foot
Level B — Designation (Without Level C & D) ....... ...............................
..........................$1.43 /Foot
Level A — Location (Non - Destructive Excavation):
Vertical Depth: 0 Ft. -- 5 Ft . ......................................................................
$1,126/Hole
5 Ft. — 8 Ft..— ............... ...............................
....................$1,680 /Hole
8 Ft. — 13 Ft . ....................................................................
$1,825/Hole
13 Ft.— 20 Ft........ .......... ...........................,...
.................,..$2,610 /Hole
> 20 Ft . ..........................................................................
$3,600/Hole
GroundPenetrating Radar ............................................... ........ I ....................
......,........... ..$250 /HR
SUE Technician (With Equipment) .................................. ........... .. ..........................
............ $98 /HR
Vacuum Excavation Truck with 2 Technicians ................................... ............................... $250 1HR
TrafficControl 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 /Mlle
REIMBURSABLE EXPENSES
Technology Fee ( *) .........................................................................
............................... $3.751HR
Consultant or Specialty Contractor (Outside Firm) .................... ..............................@
Cost + 10%
Courier, Special Equipment Rental ........................................... 4.............................@
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 DaylPerson) ..............................
............................$36 /Day
TitlePlant Charges .................................................................,. ...............................
@ Cost + 10%
Other Misc. Expenses Related to the Project .......................... ..............................@
Cost+ 10%
In -House Reproduction:
Copied (Up to 11" x 17 ") ...... ....... ............................... .. .................I............. $0151Each
D Color Prints (Up to 11" x 17') ....... ......................... ........— ....................., ..$1.50 /Each
D Color. Prints (Larger than 11" x17") ........... ............................... ......................$3.00 /Sq. Ft.
DBluelines (All Sizes) ................................................................... .....................$1.001Each
> Bond Prints (All Sizes) ................... ................................................................... $2.00 /i_ach
DMylar Prints ......................................... . ........................................................... $12.00/Each
DVellum Prints .................................................................... ............................... $9.00 /Each
(')Technology charges added to each blUablems"our.
RESOLUTION 22 -R -96 EXHIBIT B
AMMENDMENT 5 TO WOMAN HOLLERING CREEK PROJECT AGREEMENT
MODIFIED SCOPE AND FEE OF CONSTRUCTION PHASE SERVICES
I. Construction Phase Additional Services
A. Respond to Requests for Information (RFIs). CobbFendley will coordinate with the
City and Contractor on RFIs and respond with clarifications as needed. The total
number of RFIs is assumed to be sixty (60).
B. Additional Engineering services related to revisions requested on Site Plan for
proposed lift station.
C. Survey update to match updated conditions at tie in locations.
Basis of Compensation
Description
E Respond to Requests for Information
Lift Station Site Plan Revisions
Survey and Design Update
Total Modification to Construction Phase Services
Cost
$63,951
$5,666
$9,428
$79,045
IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Amendment to the
Agreement effective as of , 2022 (the "Effective Date ").
CITY OF SCHERTZ
CITY MANAGER
CONSULTANT
Consultant
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