Loading...
ST8805-CN 890313Kimley-Horn and Associates, Inc. 12660 Coit Road, Suite 200, Dallas, Texas · (214) 386-7007 -. Raleigh, Charlotte, Nashville, Virginia Beach, Dallas, Phoenix, West Palm Beach, Tampa, Orlando, Ft. Lauderdale, Vero Beach, Ft. Myers, Stuart March 13, 1989 Mr. Russel Doyle, P.E. City Engineer City of Coppell Post Office Box 478 Coppell, Texas 75019 Re: Engineering services for review of floodplain development for compliance with City of Coppell Ordinance 87390 Dear Mr. Doyle: We are pleased to submit to you our contract for professional engineering services for review of the floodplain reclamation study on Cottonwood Branch and Denton Creek, prepared for ABQ Development by Jerry Parche Consulting Engineers of Arlington, Texas, as it relates to Coppell City Ordinance 87390. SCOPE OF SERVICES Review of Computer-Modeling Studies Review information presented by the City. This information would consist of computer modeling studies to support a development request in the City of Coppell. The review would consist of three phases as follows: III. Verification of the sufficiency of the information presented. Review of the information presented to determine if it meets the requirements of Ordinance 87390. Provide letter response to the city describing the results of our review. This review is intended to address the floodplain related issues only. The general review of the development plans, infrastructure, superstructure, and other issues will be completed by others. TIME SCHEDULE An initial response will be provided to the City within ten days of authorization to proceed with this project. The response will be either a letter describing the results of our review, a letter request for additional data, or a letter requesting additional time for review. Building client relationships since 1967 Mr. Russel Doyle March 13, 1989 Page Two FEE AND BILLING We will accomplish the outlined services based on an hourly rate as shown on the attached rate schedule. The maximum amount we will bill the City of Coppell for this project is $1,000. Invoicing is monthly, typically mid-month for the previous month's services, and payment is due within 30 days of the date of the invoice. Monthly Lump Sum invoicing is an estimated percent complete of services. STIPULATIONS Any project undertaken above, is based on office services only. Our services do not include: field investigations, meetings with the City or others, appearance at Council or Planning and Zoning, follow-up actions after completion of the specific service, or other such actions. The review will involve no more than three responses to obtain sufficient information for review. Once the service is complete for any specific project, and a review or determination presented to the City, any additional services necessary will constitute a new project. CLOSURE In addition to the services set forth herein, our agreement shall include, and shall be subject to the Standard Provisions attached hereto and hereby incorporated herein. The term "the client" as used in the attached Standard Provisions shall refer to the City of Coppell, Texas. Please return a signed copy of this agreement to our office to indicate your approval and authorization to proceed with this project. Very truly yours, KIMLEY-HORN AND ASSOCIATES, INC. Ronald W. Morrison, P.E. Senior Hydrologist pw Attachment: Standard Provisions Agreed to this CITY OF COPPELL By: Title: Witness: day of ,1989 c: \wp\hydro [ gy\coparche, con\xt2 ICIlILEY-IIOIIN ANO ASSOCIATES, INC. STANDARI) Plier] S lOllS (1) Scope of Services The undertaking of the Engineer to perform profesltOflll services un4~r this Agreement extends only to those services specifically described herein. However, if requested by the CLient end agreed to by the Engineer, the EnGineer viii perform eddlttorml services (#Additional Services") hereunder and shall be compensated therefore ss set forth belch. In edclttten, the Engineer Is authorized to perform Additional Services (for "hich the Engineer will be similarly compensated) for those items arising due to emergencies, errors, or other unanticipated actions by the Cltont's contractor(s), revised regulations governinG the Engineer's services, and .hen, in the EnGineer's opinion, Additional Services ara advisable ss s result of other factors, such Additional Services Ire clearly in the Client's Interest, and ~KIvence authorization cannot be obtained. In the event of the performance of such Additional Services, the EnGineer HILL notify the CLiont as soon es practicer of the necessity end Inception of the services. (2) CLiefll~'a Responsibilities in ~ddttion to any responsibilities specifically described herein, the Client ah. Il have the folio#lng responsibilities to the Engineer: ia) Designate In writing s person to ecl ss his representative with respect to this Agreement. such person having co,plate authority to transmit instructions, receive Information, and make or interpret the CLient's decisions. (b) provide all information snd critecla as to the Clisnt'l requlrl~4~tl, objl~ttves, ~ expectstlonl for the w'oject. These dots ehsll Include al& numerical critecls that are to be met and all standards of deve&opment, delian, or construction that ara to be fol I o~ed. lc) Provide to the EnGineer ell previous studies, plans, or other documents pertaining to the project and all new dais reasonebly necessary, in the £nGineer~s opin|en, such es site survey and engineering d~te, environmental Impact ssesesmants or statements, zoning or other Land use regulations, etc., upo~ ell of .hlch the Engineer my rely. ¢cl) Arrengo for accese to tha site sad other private or public property as required for the EnGineer to provide the sarvices under this Agreement. (e) Review ell doc~nents or verbal reports presented by the EnGineer ~nd render in writing decisions pertaining thereto within resemble time so as not to delay the services of the Engineer. If) Furnish approvals sad permits from governmental authorities having Jurisdiction over the project and approvsts and consents from other parties ss may be necessary for cc~pletion of the Engineer's services. (g) Provide such ir~ependont accountinG, legal, insurance, cost estimettng, and overall feasibility services beyond the scope of this Agreement ss the CLient may require or the Engineer may ressonebLy request with regard to the professional fields listed above. Ih) Give prompt written notice to the Engineer .henever the Client becomes a~ro of ~ny development that affects the scope and timing of the Engineer's services or any defect or noncempllence In eny espect of the project. fi) Bear all costs incident to the responsibilities of the Client. (:5) .Period of Service Unless otherwise provided herein, the EnGineer will begin services promptly slier receipt of a fully executed copy of this Agreement nad, unless specified otherwise herein, shall complete the services within a reasonable LenGth of time. The provisions of this section end the compensation to the Engineer Included tn this Aareomont have been agreed to in anticipation of a continuous ~ orderly progress through the completion of the Engineer's services. Is) Times for performence egreed to herein shall be extended to the extent necessary for delays ckJe to notura( disasters, strikes, or other ctrc~matences over .hich the Engineer has no centrol. lb) If the Engineer's services ere delayed or suspended In .hole or in part, the times of performance shell be extended to the extent of such delay or suspension; such suspension shall not terminete thie Agreement unless the EnGineer elects to terminate by written notice In accordance with other provisions of this Agreement. Lf such delay or suspension extends for mare than six months (cumulatively) for reasons beyond the Engineer's control, the various rates of compensation provided for else.here In this Agreement shall be subject to renegotiatlon. Is,) Commeflsatiofl for Services Unless specifically agreed to herein, the follovtnG sts~clsrd provislorm ss to coq~ensation msoc~ts shall be applicable: la) The Engineer shall be compensated for the services specifically described In eccordance herewith. lb) If the Engineer performs Additlon~l Services, the CL lent shall pey the EnGineer for the performance of those Services an amount (In edclttion to all other m~o~ts payable urger this Agreement) based upon the EnGineer's curront hourly retes for the actLmL time spent by the Engineer in providinG such Additt~al Services plua 1.15 times all direct expanses (#Direct Expanses") so incurred by the EnGineer In providinG such services (except ns otherutse provided In paragraph Cc) lc) Oirect expenses shall include the followinG hourly rates for usege of computers or other specialized equipment ~ proorams used In connection therewith ¢.hich rates include the Direct Expense Factor): fi) Text processors ar~l text scanning or facsimile equipment, (Ii) Hicro- or minicomputers ~ith atondard progr~ma, S20./hr. (ii I) Hicro- or minicomputers with special i zed proprietary progrm, S20./hr. (tv) Computer-Aided-Drafting or GraPt~lcs, S20./hr. Id) In edcJttton to amounts payable by the Client to the E~gineer hereunder, the Client shall be Invoiced for and shell pay to the Engineer in accordence with pnragroph (5) all taxes, Jf any, .hether state, local, or federal, levied with respect to such msoc~ts. (5) Pi~ts for Services Cmq~ensation shall be peld to the Engineer in eccorde~ce with the follovlng provisions: (e) invoices wi II be submt tied by the Engineer to the Client monthly for services performed er~ expenses incurred pursuant to this Agreement during the prior month. Payment of each such invoice will be due within t~ent¥-ftve (25) deys of the receipt thereof. A service charge rill be ~ded to clelJn~uent acc~ts at the maximum fete aLl_oved by ILa~ for each month of det~n4~Jency. lb) If the CLient fells to m~e e~¥ pey~ent due the Engineer for eerv~ces end expenses within eixt¥ (60) deye efter the Engineer's trenemtttsl of Its invoice therefor, the Engineer may, efter giving eeven (?) cbye' ~rltten notice to the Client, suspend services under this Agreement until ell nmoonts due hereunder are paid in full. lc) In the event any invoice or any portion thereof remains u~id for mare thnn eixty (60) days following the invoice date, the Engineer my f~itinte leoel proceedings to collect the s~ ~nd recover, fn ~ddLt~o~ to ell eccrued intereet, tie ressomable ettorneys~ fees ~ other expenses related to the proceeding. Such expeneee eha~l Include, but shall not be Limited to, the cost, determined at the Engineer's nor~ml hourly billing rates, of tha lima devoted to such proceedings by its employees. Id) The Client acknowledges and agrees that the payment for services rendered end expenses Incurred by the Engineer pursuant to this Agreement Is not subject to eny centingency or cendJtlens unlese expressly set forth in thle Agreement. (6) Reuse of OoL~Jments All documents, including but not Limited to drawings, spectficsttone, sad date or prngr~ms stored electronically, prepared by the Engineer pursuant to this Agreoment ece related exclusively to the services described herein. They ere not Inter, Jell or represented to be suitable for reuse by the Client or others on extensions of this project or on any other project. Any reuse without written verification of edoptstlon by the Engineer to specific purposes Intended will be et the Client's sole risk and without liability or legal exposure to the EnGineer; and the Client shel! tndeff~ify and hold the EnGineer harmless from eli claims, domnges, Losses, sad expenses, including but not Limited to attorneys~ fees, arising out of or resulting therefrom. Any such vecificstlon or ~daptatten will entitle the Engineer to further ccxq~ensation at rates to be agreed upon by the Client end the EnGineer. (?) OpinJone of Cost Since the Engineer has no control over the cost of lebor, materlsis, equipment, or services furnished by others, or over methods of determining prices, or over competitive biddinG or market conditions, eny and all opinions as to costs rendered hereunder, includinG but not limited to opinions ae to the costs of construction and materials, shall be made on the basis of Ire experience and qualifications sad represent its best judgement ss en experienced sad qualified professionsI engineer, fomilisr with the construction Industry; but the Engineer cs~t and does not gu~rentes that proposals, bids, or actual costs will not vary from optntens of costs prepared by it. if st gay time the Cliont wishes Greeter assurance as to the amount of eny cost, he shall employ en independent cost estimator to make such determinotton. Engineering services required to bring costs within any limitation establiehed by the (:ltent will be peid for as Additional Services hereunder by the Client. (8) Terminet~n The obltgatiom to provide further services under this Agreement my be termlneted by either party upon seven (?) cbys' written notice In the event of substential failure by the other petty to perform In sccorcbnce with the term hereof through no fault of the termlneting petty. Ln the event of eny termtn~tlen, the Engineer will be paid for ell eervices rendered to the · date of termination, all expenses subject to reimbursement hereunder, and other reasonable expenses incurred by the Engineer as a result of such ~.:rmination. in the event the Engineer's compensation under this Agreement is a fixed fee, upon such termination the amount payable to the Engineer for services rendered will be · proportional amount of the tots[ fee based upon the ratio of the amount of the services done, as reasonably determined by the Engineer, to the total a~ount of services Vnich were to have been performed, less prior partial payments, if any, M~ich have been mcle. (9) Liobi{ity The Engineer is protected by ~/orkers, Condensation insurance (end/or emp[oyerls liability insurance), professional L iabi I i ty insurance, and by pubLic L i abi t ity insurance for budi ly injury end property damage and wi L [ furnish certi f ica(es of insurance upon request. The Engineer agrees to hold the C[ient harm[ess from Loss, damage, injury, or Liability arising directly and to the extent from the negligent acts or omissions of the Engineer, its amp[oyees, agents, subcontractors, and their amptoyees and agents, but only to the extent that the sa~e is actusiLy covered end paid under the foregoing policies of insurance, if the CLient specifically directs the Engineer to obtain increased insurance coverage, or if the nature of the Engineer's activities requires additional 14orkers, Compensation or simi[ar insurance coverage, the Engineer will take out such acidS(tonal insurance, if obtainable, at the CLient's expense. (JO) Standard of Care in performing its professions[ services hereunder, the Engineer will use that degree of care and ak(ii ordinarily exercised, under similar circles(encee, by reputable ~bera of its profession practicing in the same or similar Locality. #o other warranty, express or implied, is made or intended by the Engineer,s undertaking herein or its performance of services hereunder. It is agreed that, in eccordsnce with and subject to the provisions of the foregoing paragraph (9), the CLient will Limit any and all Liability, claim for damages, coat of defense, or expenses to be Levied against the Engineer on account of any and ali design defects, errors, omissions, or professional negligence to the amount actually paid in compensation for, or with respect to, such Liability, claim, cost, or expense under any policy or policies of professional Liabillty insurance maintained by the Engineer. Further, the Client agrees to notify any contractor or subcontractor k~o may perform work in connection with any design, report, or study prepared by the Engineer of such Limitation for defects, errors, omissions, or professional negligence end require as a condition precedent to his (or its) performance of such ~ork an identical Limitation of Liability on his (or its) part as against the Engineer. In the event the CLient faits to obtain an identical (imitation of Liability provision as to defects or negligence, the CLient shall indemnify and hold the Engineer harmless for any liability related to error, omissions, or act of professional negligence in such s manner end to such extent that the eggrngate liability of the Engineer, including awards and costs assessed by any mediator*arbitrator for such defect or negligence to att parties including the Client, shall not exceed the aforementioned amount. Under no circomstances shall the Engineer be Liable for extra costs or other consequences due to changed conditions or for costs related to the failure of the contractor or materialman to install ~ork in accordance with the plans and specifications. (11) Ex~-~es of Litigation in the event Litigation in any way related to the services performed hereunder Is initiated against the Engineer by the Client, its contractors, or sulx:ontractora, and such Litigation conciucles with the entry of a final judgment fevorabie to the Engineer, the CLient shall reimburse the Engineer for all of its ressonabie attorneys~ fees and other expenses related to said litigation. Such expenses shat[ include, but shall not be limited to , the cost, determined a-t the Engineer's normal hourly billing rates, of the time devoted to such Litigation by the Engineerls employees. (12) Arbitration Ail claim, counterclaims, disputes, and other matters in question betueon the CLient and the Engineer arising out of this Agreement or the breach thereof shall be decided by binding arbitration in accordance with the Construction industry Rules of the American Arbitration Association then obtaining, st the sole discretion of the Engineer. #otice of demand for arbitration must be filed in writing with the other party to this Agreement and with the American Arbitration Association no tater than that date ~hen institution of legal or eClUitabie proceedings based on such claim, dispute, or other matter in question would be barred by the applicable statute of [imitations. in addition, ~o arbitration proceedings shall include by consolidation, joinder, or in any other manner any party other than the Client and the Engineer, and arbitration in respect of a specifically described claim, counterclaim, dispute, or other matter in question shall net be expended to include any other issue. The restrictions of the previous sentence as to parties to and issues of the arbitration proceedings may be amended by specific written approval of the Client and the Engineer for each exception. (13) Hazardous substances Zt is understood and agreed that, in seeking the professional services of the Engineer under this Agreement, the CLient does not request the Engineer to undertake to perform any services, studies, or tests, or to make any determinations involving hazardous s~bstanoes, as defined by feclera[ law. Therefore, the Engineer undertakes ne such obligation hereunder, and the CLient agrees to hold harmless, inde~mify, and defend the Engineer frown and against any and all claim, tosses, damages, Liability, and costs arising out of or in any uay connected with the presence, discharge, release, or escape of contaminants or hazardous substances of any kind, or erwironmentai Liability of ~ny nature, in any manner related to services performed by the Engineer under this Agreement. If any condition regarding a hazardous substance, including but net Limited to asbestos, is observed by the Engineer or is alleged during the course of the performance of the services hereunder, the Engineer shat( have the right to cease all services until the hazardous substance condition has been eliminated. The Engineer shall have the respansibility to notify the CLient of any such condition of ~hich the Engineer becomes aware, end the Client shall be so{ely responsible for the elimination of the hazardous substance condition, if the services to be performed by the Engineer hereunder cannot be performed because of the existence of the hazardous substance condi tion, the existence of the condition shat I be deemed to be · subatantiai~ fei lure on the part of the Client to perform in accordance with the term of this Agreement, through no fault of the Engineer, for the purposes of termination under paragraph (8). (l&) Assignment and $ubcontractim #othing under this Agreement shat( be construed to give any rights or benefits in this Agreement to anyone other than the Client and the Engineer, and all duties end responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Client and the Engineer and net for the benefit of ~ny other party. #either the CLient nor the Engineer shall assign, sublet, or transfer any rights under or interests in this Agreement without the written consent of the other. However, nothing contained herein shat[ prevent or restrict the Engineer from employing independent professional associates or consultants as the Engineer may deem appropriate to assist in the performance of services hereunder. (15) Confidentiality The Client hereby consents to the use and dissemination by the Engineer of photographs of the Project end to the use by the Engineer of facts, data, and information obtained by the Engineer in the routine performance of the services hereunder. Ho(withstanding the foregoing, with respect to any facts, date, or information specifically identified in ~riting by the CLient, the Engineer shall use reasonable care to maintain the confidentiality of such identified material. (l&} Controlling La. This Agreement is to be governed by the Law of the State of Texas. (17) Binding Effect This Agreement shall bind, end the benefits thereof shall inure to the respective parties hereto, their legal representatives, executors, administrators, successors, and assigns. (18) #ether: Amendment This Agreement constitutes the entire Agreement bet,een the Engineer and the CLient, and negotiations and written and oral understandings between the parties are merged herein. This Agreement can be supplemented and/or amended only by a written clocu~ent executed by both the Engineer and the Client. (19) $everability and tlaiver of Provision~ Any provision in this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceabiLity without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. ALso, the non-enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement. STDPROV.