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HomeMy WebLinkAboutEDCRes2019.05.02ANNA ECONOMIC DEVELOPMENT CORPORATION RESOLUTION NO. a- C:zo ( � A RESOLUTION OF THE ANNA ECONOMIC DEVELOPMENT CORPORATION APPROVING AND AUTHORIZING THE ECONOMIC DEVELOPMENT DIRECTOR TO ACT ON THE CORPORATION'S BEHALF IN EXECUTING A PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECTURAL SERVICES WHEREAS, the Anna Economic Development Corporation (the "EDC") is a Type A Development Corporation duly organized under the laws of the State of Texas, and located in Collin County, City of Anna, Texas; and WHEREAS, the Board of Directors of the Anna Economic Development Corporation (the "Board") has determined that the Anna Economic Development Corporation (the "EDC") is in need of hiring an architectural firm to provide general architectural services to provide designs and consultation related to the partial demolition, repair and renovation of the Inc -Cube Building at 312 N. Powell Pkwy, Anna, Texas (the "Project"); and WHEREAS, the Board has selected, based on demonstrated competence and qualifications to perform architectural services related to the Project, the firm of /lc Cy, k• '] rR-. ("Consultant"); and WHEREAS, the Board desires to approve and authorize the engagement of Consultant to provide the services specifically described in and under the terms of the Professional Services Agreement ("Agreement") substantially in the form that is attached hereto as Exhibit 1 and incorporated herein as if set forth in full; and WHEREAS, the Board has determined that the Agreement between the EDC and Consultant should be approved as it is at a fair and reasonable price and the execution of same should be authorized and approved, as set forth herein; NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF ANNA ECONOMIC DEVELOPMENT CORPORATION, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval and Authorization of Agreement. The Board hereby approves the Agreement substantially in the form attached hereto as Exhibit 1, subject to the approval as to form by the EDC's legal counsel, and authorizes and approves the Economic Development Director of the City of Anna to execute same on behalf of the EDC. The Economic Development Director is hereby further authorized Anna EDC Resolution No. Page 1 of 2 to execute any associated documents in a form approved by the EDC's legal counsel and to take all other actions necessary to finalize, act under and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas this the day of IM4UZ 2019. ATTESTED: APPROVED: Anthony Richards , EDC President Jim rski, EDC Secretary Anna EDC Resolution No. Page 2 of 2 F4.'b;f l PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("this Agreement") is made and entered into as of the day of , 2019, by , called "CONSULTANT" and the Anna Economic Development Corporation, hereinafter called "OWNER," each acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 OWNER'S ENGAGEMENT OF CONSULTANT OWNER hereby contracts with CONSULTANT, who shall at all times act only in the capacity of an independent contractor, and CONSULTANT hereby agrees to perform the services described herein in connection with the Project as stated in this Agreement, with diligence and in accordance with the professional standards customarily applicable to such services in the State of Texas. The professional services set out herein are in connection with the following described Project: Project: Architectural Design and Consulting Services for Partial Demolition, Repair, and Renovation of the Inc -Cube Building at 312 N. Powell Pkwy, Anna, Texas The Project shall include all services to be performed by CONSULTANT as set forth in this Agreement. The Owner's designated representative for the purposes of this Agreement is the City of Anna's Economic Development Director ("OWNER'S Representative") ARTICLE 2 SCOPE OF SERVICES For the fixed price set forth in Article 5 of this Agreement, CONSULTANT shall perform architectural and consulting services in connection with the Project and in accordance with the "Program" attached to this Agreement as Exhibit A, and as revised by mutual written consent of CONSULTANT and OWNER from time to time in accordance with this Agreement. ARTICLE 3 ADDITIONAL SERVICES Additional services to be performed by CONSULTANT not described in Article 2 of this Agreement ("Additional Services") must be authorized by OWNER'S Representative. Such additional services are not included in the fixed price set forth in Article 5 of this Agreement and may only be performed under a separate written agreement or under one or more individual task orders in accordance with the hourly fees set forth in Article 5. C. of this Agreement. If such services are performed under task order(s), the terms of this Agreement shall apply to such services. ARTICLE 4 SCHEDULE AND PERIOD OF SERVICE A. This Agreement shall become effective as of the date first written above and shall remain in force for the period which may reasonably be required for the completion of the Project, including completion of any Additional Services, if any, and any required extensions approved by OWNER'S Representative. PROFESSIONAL SERVICES AGREEMENT Page 1 of 7 B. CONSULTANT agrees to perform the various services set forth in this Agreement according to the Schedule set forth in Exhibit B attached to this Agreement. The time periods set forth in said Schedule of Services shall not be exceeded by CONSULTANT, except to the extent that OWNER causes the delay or suspends the Project. Time is of the essence in this Agreement, and to the extent that CONSULTANT anticipates any delay in the provision of any of the services under this Agreement, CONSULTANT shall as soon as practicable notify OWNER of same in writing and an amendment to the schedule referenced above may be made by mutual consent. ARTICLE 5 COMPENSATION A. COMPENSATION TERMS: For and in consideration of the professional services to be performed by CONSULTANT under this Agreement OWNER agrees to pay the fixed total sum of $ (the "Fixed Amount"), plus reimbursable expenses to the extent such expenses are reasonable and necessary for the Project and are of the type identified in Exhibit A ("Reimbursable Expenses"); provided that the total amount of Reimbursable Expenses shall not exceed $ without prior written approval by OWNER'S Representative. B. BILLING AND PAYMENT: Partial payments to CONSULTANT will be made within 30 days of receipt of detailed monthly invoices rendered to and approved by OWNER'S Representative; however, under no circumstances shall any monthly statement for services exceed the unpaid value of the work performed at the time a statement is rendered. The value of work will be calculated as the percentage of completion of the Project applied to the Fixed Amount. CONSULTANT bears total and sole responsibility for making any necessary and appropriate payments to additional consultants or subcontractors from the Fixed Amount. Nothing contained in this article shall require OWNER to pay for any work which is unsatisfactory, as reasonably determined by OWNER'S Representative, or for any work which is not submitted in compliance with the terms of this Agreement. OWNER shall not be required to make any payments to CONSULTANT when CONSULTANT is in default under this Agreement. It is specifically understood and agreed that CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payment by OWNER for any charge, expense, or reimbursement above any fixed or maximum not -to -exceed fee as stated in this Agreement or any specified task order, without first having obtained written authorization from OWNER'S Representative. CONSULTANT shall not proceed to perform any services without obtaining prior written authorization from OWNER'S Representative and shall be diligent in seeking such authorization when necessary to perform services under this Agreement. C. ADDITIONAL SERVICES: For additional services authorized in writing by OWNER'S Representative as set forth in Article 3, CONSULTANT shall be paid based on an hourly basis at a rate to be determined in advance and agreed to in writing by OWNER'S Representative and CONSULTANT. Payments for additional services shall be due and payable within 30 days of invoicing by CONSULTANT, and shall be in accordance with paragraph B of this article. Statements shall not be submitted more frequently than monthly. PROFESSIONAL SERVICES AGREEMENT Page 2 of 7 D. DELAYED PAYMENT: If OWNER fails to make payments due CONSULTANT for services and expenses within 30 days after receipt of CONSULTANT's undisputed statement thereof, the amounts due CONSULTANT will be increased by the rate of one percent (1 %) per month from the said 30th day, and, in addition, CONSULTANT may, after giving seven days' written notice to OWNER, suspend services under this Agreement until CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require OWNER to pay the late charge of one percent (1 %) set forth herein if OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article 5. ARTICLE 6 OBSERVATION AND REVIEW OF THE WORK CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to OWNER any defects or deficiencies in the work of CONSULTANT or any subcontractors or subconsultants. ARTICLE 7 OWNERSHIP OF DOCUMENTS All documents prepared or furnished by CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement shall become the property of OWNER upon the termination of this Agreement. CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by CONSULTANT are intended only to be applicable to this Project and Program, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense, with no right of indemnification against CONSULTANT, notwithstanding any other provision of this Agreement. In the event OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to such use in that project. ARTICLE 8 INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of OWNER. CONSULTANT shall not have or claim any right arising from employee status. OWNER shall not control the means, methods, sequences, procedures, or techniques utilized by CONSULTANT to perform work or services under this Agreement or any associated task order. ARTICLE 9 AUDITS AND INSPECTION CONSULTANT will submit copies of documentation supporting all reimbursable expenses for OWNER's review. ARTICLE 10 INDEMNITY AGREEMENT CONSULTANT shall indemnify and hold harmless OWNER and its officers, agents, and employees from and against any and all damages and expenses, including, but not limited to reasonable attorney fees and related expenses incurred by OWNER, arising from an act of negligence, intentional tort, intellectual property infringement, or failure to pay any subcontracto or supplier committed by CONSULTANT, CONSULTANT'S agent(s), another consultant under contract, or another entity over which CONSULTANT exercises control. PROFESSIONAL SERVICES AGREEMENT Page 3 of 7 Nothing in this Agreement shall be construed to make liable any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 11 INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $1,000,000 for each person and not less than $1,000,000 for each accident, and with property damage limits of not less than $1,000,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $500,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. CONSULTANT shall furnish insurance certificates or insurance policies at OWNER's request to evidence such coverages. Except for workers compensation and professional liability, the insurance policies shall name OWNER as an additional insured, and shall contain a provision that such insurance shall not be canceled or reduced with respect to coverages or endorsements without 30 days' prior written notice to OWNER and CONSULTANT. In such event, CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 12 RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by OWNER of the Project shall not constitute, nor be deemed a release of the responsibility and liability of CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by OWNER for any defect in the design or other work prepared by CONSULTANT, its employees, subcontractors, agents, and consultants. ARTICLE 13 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three days after mailing: PROFESSIONAL SERVICES AGREEMENT Page 4 of 7 To CONSULTANT: To OWNER: Anna Economic Development Corporation Attn: Economic Development Director 111 N. Powell Parkway Anna, Texas 75409 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three days after mailing, whichever occurs first. ARTICLE 14 COMPLIANCE WITH LAWS CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE 15 DISCRIMINATION PROHIBITED; NO BOYCOTT In performing the services required hereunder, CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. CONSULTANT verifies that it and any parent company, wholly- or majority -owned subsidiaries, and other affiliates of CONSULTANT, if any, do not boycott Israel and, to the extent this Agreement is a contract for goods or services, will not boycott Israel during the term of this Agreement. The foregoing verification is made solely to comply with Section 2270.002, Texas Government Code, and to the extent such Section does not contravene applicable Federal law. As used in the foregoing verification, 'boycott Israel' means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli - controlled territory, but does not include an action made for ordinary business purposes. CONSULTANT understands 'affiliate' to mean an entity that controls, is controlled by, or is under common control with CONSULTANT and exists to make a profit. ARTICLE 16 PERSONNEL A. CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with OWNER. CONSULTANT shall inform OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by CONSULTANT or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. PROFESSIONAL SERVICES AGREEMENT Page 5 of 7 PARTICLE 17 ASSIGNABILITY CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of OWNER. ARTICLE 18 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 19 MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: Exhibit A — Program Exhibit B — Schedule B. CONSULTANT agrees that OWNER shall, until the expiration of four years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. OWNER shall give CONSULTANT reasonable advance notice of intended audits. C. Venue and jurisdiction of any suit or cause of action arising from or relating in any manner to this Agreement shall lie exclusively in Collin County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. D. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by OWNER. E. OWNER shall assist CONSULTANT by placing at CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for CONSULTANT to enter in or upon public and private property as required for CONSULTANT to perform services under this Agreement. F. CONSULTANT shall at all times maintain OWNER'S confidential or proprietary information in confidence and shall disclose same to third parties only as specifically instructed by OWNER. Any disclosure of privileged or confidential information by OWNER to CONSULTANT is in PROFESSIONAL SERVICES AGREEMENT Page 6 of 7 furtherance of OWNER's purposes and is not intended to and does not waive any privileges that may exist with regard to such information. G. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. H. This Agreement constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior or contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. IN WITNESS HEREOF, OWNER has caused this Agreement to be executed by its duly authorized representative, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer to be effective as set forth earlier in this Agreement. ANNA ECONOMIC DEVELOPMENT CORPORATION By: Joey Grisham, Economic Development Director [INSERT ENTITY NAME] By: , its PROFESSIONAL SERVICES AGREEMENT Page 7 of 7