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Starleaf- CT1508140 Y OF C®PPELL CONSULTIIIVC EIVCII\\IEERS COATTRAC1T STATE OF TEXAS S KNOW ALL BY THESE PRESENTS § CITY OF COPPELL § THIS ENGINEERING SERVICES CONTRACT, hereinafter referred to as "Contract," made, entered into and executed this the day of -AVV t , 2015, by and between the City of Coppell acting by and through the City Manager with approval of the City Council hereinafter referred to as "City", and Brown & Gay Engineers, Inc., hereinafter referred to as "Engineer". WITNESSETH WHEREAS, the City desires to contract for Professional Engineering Services, hereinafter referred to as "Services", in connection with the Starleaf Pump Station Study, hereinafter referred to as the "Project"; and WHEREAS, the Engineer is acceptable to the City and is willing to enter into a Contract with the City to perform the hereinafter defined Services necessary to complete the Project; and WHEREAS, said Services shall be as defined herein and in the detailed Basic Services, Attachment A, and Special Services, Attachment B, incorporated herein by attachment and by reference; and WHEREAS, this contract shall be administered on behalf of the City by its City Engineer or his duly authorized representative. The Engineer shall fully comply with any and all instructions from said City Engineer. AGREEMENT NOW, THEREFORE, the City and the Engineer, in consideration of the mutual covenants and agreements herein contained, do mutually agree as follows: The City agrees to retain the Engineer, and the Engineer agrees to provide Services in connection with the Project as defined herein, and for having rendered such Services the City agrees to pay to the Engineer fee for these Services as mutually agreed. All Services under this Contract shall be performed under the direct supervision of the City Engineer. 1. Scope of Services, A. Basic Services: The work tasks and activities to be performed and deliverable to be provided by the Engineer shall be in accordance with Attachment A, Scope of Services, including modifications to the Basic Services as mutually agreed to by the City and the Engineer in accordance with the provisions of this Contract. B. Additional Services Not Included in Basic Services: When mutually agreed to in writing by the City and the Engineer, the Additional Services shall be provided by the Engineer. These Additional Services are not included as a part of Basic Services and shall be paid for by the City in addition to payment for Basic Services. Should it be determined that one or more of the requirements of this Contract conflict with the requirements of the Scope of Services, including modifications to the Scope of Services or any attachments to this contract; the requirement of the Contract shall govern. 2. Progress Schedule. Within ten (10) days after receiving Notice to Proceed (NTP) the Engineer shall submit to the City a Schedule of Services consisting of a listing of the major Project tasks, the estimated consultant hours required to perform the tasks, the percentage of the Contract budget estimated to be allocated to each task and a bar chart schedule showing task beginning and completion dates. Significant milestones for the Project shall be identified. At a minimum, milestones shall be provided for the submittals described in Attachment A, Scope of Services: Tasks 1-5, excepting Task 6. Submittal. Based on Schedule of Services, the City shall compile Attachment D, Project Schedule which shall become a part of this Contract upon approval of the Engineer and the City. The Engineer shall provide to the City information to report and monitor the design tasks within the Project Schedule by completing a 'Design Progress Report" on a form provided by the City. The Engineer shall complete and provide to the City said report at two week intervals. 3. Compensation. Page 2 A. Basic Services Task 1 Fee: The Engineer shall be paid a fee for Basic Services under this Contract pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Task 1 Fee shall not exceed the lump sum of _Twenty one thousand and eight hundred dollars ($21,800) provided, however, that modifications to the Basic Services Task 1, or other conditions defined herein may necessitate a change of Fee which shall be reduced to writing and approved by the City or its designee. B. Basic Services Task 2 Fee: The Engineer should be paid a fee under this Contract for Basic Services Task 2 pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Task 2 Fee shall not exceed the lump sum of Fifty five thousand dollars ($55,000) provided, however, that modifications to the Basic Services Part Il, or other conditions defined herein may necessitate a change of Basic Fee which shall be reduced to writing and approved by the City or its designee. C. Basic Services Task 3 Fee: The Engineer should be paid a fee under this Contract for Basic Services Task 3 pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Task 3 Fee shall not exceed the lump sum of Thirty one thousand seven hundred dollars ($31,700) provided, however, that modifications to the Basic Services Task 2, or other conditions defined herein may necessitate a change of Basic Fee which shall be reduced to writing and approved by the City or its designee. D. Basic Services Task 4 Fee: The Engineer should be paid a fee under this Contract for Basic Services Task 4 pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Task 4 Fee shall not exceed the lump sum of Eighteen thousand dollars ($18,000) provided, however, that modifications to the Basic Services Task 2, or other conditions defined herein may necessitate a change of Basic Fee which shall be reduced to writing and approved by the City or its designee. E. Basic Services Task 5 Fee: The Engineer should be paid a fee under this Contract for Basic Services Task 5 pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Task 5 Fee shall not exceed the lump sum of Eighty one thousand two hundred dollars ($81,200) provided, however, that modifications to the Basic Services Task 5, or other conditions defined herein may necessitate a change of Basic Fee which shall be reduced to writing and approved by the City or its designee F. Special Services Task 6 Fee: The Engineer should be paid a fee under this Contract for Basic Services Task 6 pursuant to the Fee Schedule described in Attachment A, Scope of Services. Basic Services Task 6 Fee shall not exceed the lump sum of Twenty five thousand dollars ($25,000) provided, however, that modifications to the Page 3 Special Services Task 6, or other conditions defined herein may necessitate a change of the Special Services Fee which shall be reduced to writing and approved by the City or its designee. G. Total Maximum Fee: Total Maximum Fee for this Contract shall be Two hundred and thirty two thousand and seven hundred dollars ($232,700): The total maximum lump sum Basic Services Fee, Tasks 1 through 5, shall be Two hundred and seven thousand and seven hundred dollars ($207,700). The total maximum Special Services Fee for this contract shall be Twenty five thousand dollars ($ 25,000). . D. Invoices: The Engineer shall submit invoices at not less than thirty (30) calendar days for Basic and Special Services Tasks on or before the twenty fifth (25th) calendar day of the month, or the preceding business day if the twenty fifth occurs on a weekend and/or observed holiday. Payment shall be based on the invoices submitted to the City, provided that Services completed as indicated in the Design Progress Reports approved by the City equals or exceeds the increment percentage requested on the Engineer's invoices. Engineer's invoices to City shall provide complete information and documentation to substantiate Engineer's charges and shall be in a form to be specified by the City Engineer. Should additional documentation be requested by the City Engineer the Engineer shall comply promptly with such request. E. Payments: All payments to Engineer shall be made on the basis of the invoices submitted by the Engineer and approved by the City. Following approval of invoices, City shall endeavor to pay Engineer promptly, however, under no circumstances shall Engineer be entitled to receive interest on amounts due. The City, in compliance with Texas State law, shall process a maximum of one payment to the Engineer per month. City reserves the right to correct any error that may be discovered in any invoice whether paid to the Engineer or not, and to withhold the funds requested by the Engineer relative to the error. 4. Fee Increases. Any other provision in this Contract notwithstanding, it is specifically understood and agreed that the Engineer shall not be authorized to undertake any Services pursuant to this Contract requiring the payment of any fee, expense or reimbursement in addition to the fees stipulated in Article 3 of this Contract, without having first obtained specific written authorization from the City. The written authorization for additional Services shall be in the form of a Modification to the Scope of Services approved by the City Engineer and/or the City Council, if required. 5. Modifications to the Scone of Services. Either the Engineer or the City Engineer may initiate a written request for a Modification to the Scope of Services when in the opinion of Page 4 the requesting Party, the needs and conditions of the Project warrant a modification. Upon the receipt of a request by either Party, the Engineer and the City Engineer shall review the conditions associated with the request and determine the necessity of a modification. When the Parties agree that a modification is warranted, the Engineer and the City Engineer shall negotiate the specific modification(s) and any changes in the Total Maximum Fee or Project Schedule resulting from the modification(s). Approval of a modification shall be in the form of a written Modification to the Scope of Services which clearly defines the changes to the previously approved Scope of Services, Fee and/or Project Schedule. Said written Modification shall be approved by Engineer, authorized by the City Council, if required, and issued by the City Engineer. Issuance of the approved Scope of Services modification shall constitute a notice to proceed with the Project in accordance with the modified Scope of Services. The City Engineer may issue written Modifications to the Scope of Services without prior approval of the City Council when the modifications are to be accomplished within the authorized Total Maximum Fee and do not materially or substantively alter the overall scope of the Project, the Project Schedule or the Services provided by the Engineer. 6. Proiect Deliverables. For each submittal identified in Attachment A, Scope of Services, the Engineer shall provide the City with one set of reproducibles, one set of bluelines or hard copy and electronic media of the submittal documents. For any required environmental assessment, the Engineer shall provide one set of draft and one set of final Environmental Reports. The Environmental Reports shall be submitted as original reproducibles and on electronic media. The electronic file may omit photographs and government prepared maps. If photographs are included in the report they shall be taken with a 35 mm camera or larger format camera. Color laser copies may be substituted for the original photographs in the final report. A transmittal letter shall be included with the Environmental Reports and shall include an executive summary outlining: a.) Findings of the Reports; b.) Conclusions; c.) Recommendations; and d.) Mitigation/remediation cost estimates. 7. Proiect Control. It is understood and agreed that all Services shall be performed under the administrative direction of the City Engineer. No Services shall be performed under this Contract until a written Notice to Proceed is issued to the Engineer by the City Engineer. In addition, the Engineer shall not proceed with any Services after the completion and delivery to the City of the Conceptual Design Submittal, Preliminary Design Submittal, or the Final PS&E Submittal as described in the Basic Services without written instruction from the City. The Engineer shall not be compensated for any Services performed after the said submittals and before receipt of City's written instruction to proceed. 8. Partnering. The City shall encourage participation in a partnering process that involves the City, Engineer and his or her sub -consultants, and other supporting jurisdictions and/or agencies. This partnering relationship shall begin at the Pre -Design Meeting and continue for the duration of this Contract. By engaging in partnering, the parties do not intend to Page 5 create a legal partnership, to create additional contractual relationships, or to in any way alter the legal relationship which otherwise exists between the City and the Engineer. The partnering effort shall be structured to draw on the strengths of each organization to identify and achieve reciprocal goals. The objectives of partnering are effective and efficient contract performance and completion of the Project within budget, on schedule, in accordance with the Scope of Services, and without litigation. Participation in partnering shall be totally voluntary and all participants shall have equal status. 9. Disputes. The City Engineer shall act as referee in all disputes under the terms of this Contract between the Parties hereto. In the event the City Engineer and the Engineer are unable to reach acceptable resolution of disputes concerning the Scope of Services to be performed under this Contract, the City and the Engineer shall negotiate in good faith toward resolving such disputes. In an effort to resolve any conflicts that arise during the project, the City and Engineer agree that all disputes between them arising out of or relating to this Agreement or the Project shall be submitted to nonbinding mediation unless the parties mutually agree otherwise. 10. Engineer's Seal. The Engineer shall place his Texas Professional Engineers seal on all engineering documents and engineering data prepared under the supervision of the Engineer in the performance of this Contract. 11. Liability.,Approval of the Plans, Specifications, and Estimate (PS&E) by the City shall not constitute nor be deemed a release of the responsibility and liability of Engineer, its employees, subcontractors, agents and consultants for the accuracy and competency of their designs, working drawings, tracings, magnetic media and/or computer disks, estimates, specifications, investigations, studies or other documents and work; nor shall such approval be deemed to be an assumption of such responsibility by the City for any defect, error or omission in the design, working drawings, tracings, magnetic media and/or computer disks, estimates specifications, investigations, studies or other documents prepared by Engineer, its employees, subcontractors, agents and consultants. Engineer shall indemnify City for damages resulting from such defects, errors or omissions and shall secure, pay for and maintain in force during the term of this Contract sufficient errors and omissions insurance in the amount of $250,000.00 single limit, with certificates evidencing such coverage to be provided to the City. The redesign of any defective work shall be the sole responsibility and expense of the Engineer. Any work constructed, found to be in error because of the Engineer's design, shall be removed, replaced, corrected or otherwise resolved at the sole responsibility and expense of the Engineer. The parties further agree that this liability provision shall meet the requirements of the express negligence rule adopted by the Texas Supreme Court and hereby specifically agree that this provision is conspicuous. 12. Indemnification. Engineer shall indemnify, and hold harmless the City of Coppell, its officers, agents and employees from any loss, damage, liability or expense, including reasonable attorney fees, on account of damage to property and injuries, including death, to all persons, including employees of Engineer or any associate consultant, but only to the Page 6 extent caused by the negligent acts, errors or omissions on the part of Engineer, its employees, agents, consultants or subcontractors, in performance of this Contract, or any breach of any obligation under this Contract. It is further understood that it is not the intention of the parties hereto to create liability for the benefit of third parties, but that this agreement shall be solely for the benefit of the parties hereto and shall not create or grant any rights, contractual or otherwise to any person or entity. Neither party shall be obligated to indemnify the other party's own negligence. The parties further agree that this indemnification provision shall meet the requirements of the express negligence rule adopted by the Texas Supreme Court and hereby specifically agree that this provision is conspicuous. 13. Delays and Failure to Perform. Engineer and City understand and are aware that many factors outside the Engineer's control may affect the Engineer's ability to complete the services to be provided under this Agreement. The Engineer will perform these services with reasonable diligence and expediency consistent with sound professional practices and that any failure of the Engineer to complete the Services of this Contract within the agreed Project Schedule shall constitute material breach of this Contract. The Engineer shall be fully responsible for its delays or for failures to use diligent effort in accordance with the terms of this Contract. Where damage is caused to the City due to the Engineer's failure to perform in these circumstances, the City may withhold, to the extent of such damage, Engineer's payments hereunder without waiver of any of City's additional legal rights or remedies. The Engineer shall not be responsible for delays associated with review periods by the City in excess of the agreed Project Schedule. 14. Termination of Contract. It is agreed that the City or the Engineer may cancel or terminate this Contract for convenience upon fifteen (15) days written notice to the other. Immediately upon receipt of notice of such cancellation from either party to the other, all Services being performed under this Contract shall immediately cease. Pending final determination at the end of such fifteen -day period, the Engineer shall be compensated on the basis of the percentage of Services provided prior to the receipt of notice of such termination and indicated in the final Design Progress Report submitted by the Engineer and approved by the City. 15. Personnel Qualifications. Engineer warrants to the City that all Services provided by Engineer in the performance of this Contract shall be provided by personnel who are appropriately licensed or certified as required by law, and who are competent and qualified in their respective trades or professions. 16. Quality Control. The Engineer agrees to maintain written quality control procedures. The Engineer further agrees to follow those procedures to the extent that, in the Engineer's judgment, the procedures are appropriate under the circumstances. 17. Ownership. All Engineer's designs and work product under this Contract, including but not limited to tracings, drawings, electronic or magnetic media and/or computer disks, estimates, specifications, investigations, studies and other documents, completed or partially Page 7 completed, shall be the property of the City to be used as City desires, without restriction; and Engineer specifically waives and releases any proprietary rights or ownership claims therein and is relieved of liability connected with any future use by City. Copies may be retained by Engineer. Engineer shall be liable to City for any loss or damage to such documents while they are in the possession of or while being worked upon by the Engineer or anyone connected with the Engineer, including agents, employees, consultants or subcontractors. All documents so lost or damaged while they are in the possession of or while being worked upon by the Engineer shall be replaced or restored by Engineer without cost to the City. If the City modifies and/or uses the Documents for any reason other than their intended use, without Engineer's authorization, the Engineer shall be releases from any liability as a result of such action. 18. Proiect Records and Right to Audit. The Engineer shall keep, retain and safeguard all records relating to this Contract or work performed hereunder for a minimum period of three (3) years following the Project completion, with full access allowed to authorized representatives of the City upon request for purposes of evaluating compliance with provisions of this Contract. Should the City Engineer determine it necessary, Engineer shall make all its records and books related to this Contract available to City for inspection and auditing purposes. 19. Non -Discrimination. As a condition of this Contract, the Engineer shall take all necessary action to ensure that, in connection with any work under this Contract it shall not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex or physical impairment unrelated to experience, qualifications or job performance, either directly, indirectly or through contractual or other arrangements. 20. Gratuities. City of Coppell policy mandates that employees shall never, under any circumstances, seek or accept, directly or indirectly from any individual doing or seeking to do business with the City of Coppell, loans, services, payments, entertainment, trips, money in any amount, or gifts of any kind. 21. No Waiver. No action or failure to act on the part of either Party at any time to exercise any rights or remedies pursuant to this Contract shall be a waiver on the part of that Party of any of its rights or remedies at law or contract. 22. Compliance with Laws. The Engineer shall comply with all Federal, State and local laws, statutes, City Ordinances, rules and regulations, and the orders and decrees of any courts, or administrative bodies or tribunal in any matter affecting the performance of this Contract, including without limitation, worker's compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When required, Engineer shall furnish the City with satisfactory proof of compliance therewith. Page 8 23. Severability. In case one or more of the provisions contained in this Contract shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 24. Venue. With respect to any and all litigation or claims, the laws of the State of Texas shall apply and venue shall reside in Dallas County. 25. Prior Negotiations. This Contract supersedes any and all prior understandings and agreement by and between the Parties with respect to the terms of this Contract and the negotiations preceding execution of this Contract. 26. Contacts. The Engineer shall direct all inquiries from any third party regarding information relating to this Contract to the City Engineer. Page 9 27. Notification. All notices to either Parry by the other required under this Contract shall be delivered personally or sent by certified U.S. mail, postage prepaid, addressed to such Party at the following respective addresses: City: City of Coppell, Texas CeRKA T -Y' -75011 1. Engineer: Bryant Caswell, PE Brown & Gay Engineers, Inc. 2595 Dallas Parkway, Suite 204 Frisco, TX 75034 IN WITNESS WHEREOF, the City of Coppell, Texas and the Engineer has caused these presents to be executed by duly authorized representatives on the day and year set forth above. THE CITY OF COPPELL BY: CiTV M a67� Date: D(v, �5 ATTEST: Page 10 ENGINEER: Brown & Gay Engineers, Inc. BY: Name & Title Randy Randermann, PE Senior Vice President Date: August 4. 2015 ATTEST: Brenda Swope (CORPORATE SEAL)