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HomeMy WebLinkAboutCDCRes2016.04.01ANNA COMMUNITY DEVELOPMENT CORPORATION RESOLUTION NO. 0 0/& -0-01 CUO A RESOLUTION OF THE ANNA COMMUNITY DEVELOPMENT CORPORATION AUTHORIZING PROCUREMENT OF PROFESSIONAL SERVICES FOR ENGINEERING WHEREAS, the Anna Community Development Corporation (the "CDC") desires to authorize their Chief Administrative Officer to procure the professional consulting services of Birkhoff, Hendricks, and Carter LLP, and WHEREAS, the CDC has determined that the above -referenced services, further described in Exhibit A, are in the best interests of the CDC and will promote community development in the City of Anna, NOW THEREFORE, BE IT RESOLVED BY THE ANNA COMMUNITY DEVELOPMENT CORPORATION, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Authority to Execute Consulting Services Agreement The Board of Directors of the Anna Community Development Corporation authorizes the Chief Administrative Officer to execute, on behalf of the CDC, and subject to approval of the form and content by the CDC's legal counsel, a contract with Birkhoff, Hendricks, and Carter LLP as further described in Exhibit A, for professional engineering consulting services, said authority to include execution of all necessary documents to consummate the business relationship with said consultant. PASSED AND A PROV, D by the Anna Community Development Corporation this day of , 2016. APPROVED: ,cpn Houcek, CDC President ANNA CDC RESOLUTION NO-qolt,'0�-01 (CDC) PAGE 1 OF 1 Exhibit A PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES STATE OF TEXAS § COUNTY OF COLLIN § THIS AGREEMENT is made and entered into as of the / day of April, 2016, by and between the Anna Community Development Corporation, with its principal office at 111 North Powell Parkway, Anna, Collin County, Texas 75409, hereinafter called "OWNER" and Birkhoff, Hendricks & Conway, L.L.P. with its corporate office at 11910 Greenville Ave., Suite 600, Dallas, Texas 75243, hereinafter called "CONSULTANT," 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 EMPLOYMENT OF CONSULTANT OWNER hereby contracts with CONSULTANT, as an independent contractor, and CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, (1) with the professional skill and care ordinarily provided by competent engineers practicing in the same or similar locality and under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, the general services traditionally performed by a retained or employed engineer including without limitation the services described under Article 2.A. of this Agreement ARTICLE 2 SCOPE OF SERVICES CONSULTANT shall perform the following services in a professional manner: A. CONSULTANT shall perform the following engineering services. See Exhibit "A," attached hereto and incorporated herein by reference. B. CONSULTANT shall further perform any services set forth in individual task orders which shall be governed by the terms of this Agreement. C. If there is any conflict between the terms of this Agreement and the exhibit(s) attached to this Agreement or any task orders, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibit(s) or task orders. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 1 of 14 Exhibit A ARTICLE 3 ADDITIONAL SERVICES Additional services to be performed by CONSULTANT, if authorized by OWNER, whether included in the above -described Scope of Services, are described as follows: A. During the course of the Project, as requested by OWNER, CONSULTANT will be available to accompany OWNER's personnel when meeting with or having dealings with the Texas Commission on Environmental Quality, U.S. Environmental Protection Agency, or other regulatory agencies. CONSULTANT will assist OWNER's personnel on an as -needed basis in preparing compliance schedules, progress reports, and providing general technical support for OWNER's compliance efforts. B. Assisting OWNER or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. C. Sampling, testing, or analysis beyond that specifically included in the above -described Scope of Services. D. Preparing copies of computer aided drafting (CAD) electronic data bases, drawings, or files for OWNER's use in a future CAD system. E. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. F. Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development or construction of the Project, including the preparation of engineering data and reports for assistance to OWNER. G. Providing geotechnical investigations, including soil borings, related analyses, and recommendations. ARTICLE 4 PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by OWNER and CONSULTANT and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by OWNER. The schedule for performance is as described in Exhibit "B," attached hereto and incorporated herein by reference. This Agreement may be sooner terminated in accordance with the provisions hereof. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 2 of 14 Exhibit A ARTICLE 5 COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by CONSULTANT in employment of others in outside firms for services in the nature of surveying and other necessary support labor incident to the work required under the Scope of Services and Additional Services. 2. "Direct Non -Labor Expense" is defined as that expense for any OWNER - authorized assignment incurred by CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by CONSULTANT herein, OWNER agrees to pay, based on the multiplier(s) shown in Exhibit "C," attached hereto and incorporated herein by reference. Partial payments to CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by OWNER through its Chief Administrative Officer or his/her designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. Nothing contained in this Article shall require OWNER to pay for any work which is unsatisfactory, as reasonably determined by the Chief Administrative Officer or his/her designee, or 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 payments by OWNER for any charge, expense, or reimbursement above any maximum not -to -exceed fee as stated within any specified task order, without first having obtained written authorization from OWNER. CONSULTANT shall not proceed to perform any services without obtaining prior written authorization from the Chief Administrative Officer or his/her designee. C. ADDITIONAL SERVICES: For additional services authorized in writing by OWNER in Article 3, CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "A." Payments for additional services shall be due and payable upon submission by CONSULTANT, and shall be in accordance with subsection B hereof. Statements shall not be submitted more frequently than monthly. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 3 of 14 Exhibit A D. PAYMENT: If OWNER fails to make payments due CONSULTANT for services and expenses within 60 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 60t" 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, "Compensation." 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 AND INFORMATION SUPPLIED BY OWNER All documents prepared or furnished by CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and 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 OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. 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 and by CONSULTANT at the time such information and materials are delivered, CONSULTANT is released from any and all liability relating to such use in that project. Owner shall supply to CONSULTANT the information set forth in Exhibit "D," attached hereto and incorporated herein by reference. ARTICLE 8 INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the 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. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 4 of 14 Exhibit A ARTICLE 9 AUDITS AND INSPECTION OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. CONSULTANT shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, CONSULTANT shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow OWNER similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Anna. The cost of the audit will be borne by OWNER unless the audit reveals an overpayment of 1 % or greater. If an overpayment of 1 % or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by CONSULTANT which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in OWNER's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. ARTICLE 10 INDEMNITY AGREEMENT CONSULTANT shall indemnify, defend, and save and hold harmless OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, that are caused by or result from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the CONSULTANT or the CONSULTANT'S agent, another consultant under contract, or another entity over which the CONSULTANT exercises control. Nothing in this Agreement shall be construed to create a liability to 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 PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 5 of 14 Exhibit A 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 $500,000 for each occurrence and not less than $500,000 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 $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. CONSULTANT shall furnish insurance certificates or insurance policies at OWNER's request to evidence such coverages. The insurance policies shall name OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified 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 TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving 30 days' advance written notice to the other party. B. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to OWNER within 30 days after the date of termination. OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article 5 "Compensation." Should OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to OWNER on or before the date of termination, but may maintain copies of such documents for its use. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 6 of 14 Exhibit A ARTICLE 13 RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER 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 14 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: To CONSULTANT: Managing Partner/Owner Birkhoff, Hendricks & Conway, L.L.P. 11910 Greenville Ave., Suite 600 Dallas, Texas 75243 100 Chief Administrative Officer Anna CDC 111 North Powell Parkway P.O. Box 776 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. ARTICLE 15 ENTIRE AGREEMENT 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. ARTICLE 16 SEVERABILITY 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 PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 7 of 14 Exhibit A 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. ARTICLE 17 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 18 DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 19 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. ARTICLE 20 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 21 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 PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 8 of 14 Exhibit A 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 22 MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: Exhibit A — Fee Schedule (1 page) 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 of any suit or cause of action under 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. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Gary Hendricks. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. E. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, Communityal, 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. F. 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. G. 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 furtherance of OWNER's purposes and is not intended to and does not waive any privileges that may exist with regard to such information. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 9 of 14 Exhibit A H. 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. IN WITNESS HEREOF, the Anna Community Development Corporation has caused this Agreement to be executed by its duly authorized President and CONSULTANT has execulad thisAgreement through its duly authorized undersigned officer on this the 7'M day Of r ,i�El . Am, APPROVED: n Houcek, Anna CDC President CONSULTANT WITNESS: BY: PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 10 of 14 Exhibit A EXHIBIT "A" GENERAL ENGINEERING SERVICES he OWNER's 1. The Engineer shall serve as Engineer and provide general engineering t co nsultation services in support of the OWNER as required. • site plans, concept plan, specifications, bidding documents, 2. Provide review of plats, s p p construction plans • , studies prepared y re ared b y other Professional Engineers and Registered Professionals Land Surveyors that are submitted to the OWNER in conformance with 'subdivisionions. Review is for general conformance to the City of OWNER s regulations. Anna's standards and good engineering practice. The review does not guarantee the g g completeness, accuracy or co rrectness of the documents prepared by other professionals licensed or registered by the State of Texas. 3. Provide engineering consultation services relative to the administration of the City of Anna's Flood Prevention Ordinance. 4. Preparation of specific, ations contract documents and construction plans for OWNER projects and any other project that falls within the realm of a municipal public works civil � engineering project. 5. Complete engineering,topographic erin and boundary surveys as requested by the OWNER. 6. Land surveys and office computations required to develop plats and metes and bounds descriptions for easements, property acquisition, CCN acquisitions, or municipal annexations 7. Complete feasibility studies as requested by the OWNER. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 11 of 14 Exhibit A EXHIBIT "B" COMPLETION SCHEDULE Services shall commence upon receipt of this executed Agreement. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 12 of 14 Exhibit A EXHIBIT "C" PAYMENT SCHEDULE Position Hourly Rate Sr. Engineer 220 - $235 Engineer 130 - $150 CAD Tech I 60 - $75 AD Tech II 100 - $125 CAD Tech III 135 - $150 Word Processor 70 - $120 Survey Crew 150 (crew rate) Compensation will be based on the hourly rate schedule listed above. Expenses (that may include third party) will be invoiced at cost times a multiplier of 1.15 and mileage at $0.60 per mile. Multiplier may be adjusted as the economy changes and will be presented to the OWNER for consideration and approval. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 13 of 14 Exhibit A EXHIBIT "D" Information to be provided by the City 1. Access to the Work: The Owner shall arrange for access to and make provisions for the Engineer to enter upon public and private lands as required for the Engineer to perform such work as surveys and inspections in the development of the Project. 2. Consideration of the Engineer's Work: The Owner shall give thorough considerations to all reports, sketches, estimates, drawings, specifications, proposals, and other documents presented by the Engineer, and shall inform the Engineer of all decisions within a reasonable time 3. Standards: The Owner shall furnish the Engineer with a copy of design and construction standards he shall require the Engineer to follow in the preparation of Contract Documents for the Project. 4. Other available information as required. PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES Page 14 of 14