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12-42 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. 12-42 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR FIRST STREET AND COIT ROAD MEDIAN DESIGN AND CONSTRUCTION PLANS BETWEEN STUDIO 13 DESIGN GROUP, PLLC. AND THE TOWN OF PROSPER. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, a Professional Services Agreement for the design and construction plans for the medians within First Street and Coit Road, between Studio 13 Design Group, PLLC., and the Town of Prosper, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 26th day of June, 2012. A t—i V— Ray Smith, ayor ATTEST TO ffp`� Amy Piukana Tom "6 • s • • � r a • .r a � r s� b • � Contract No. 161 AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS (TOWN) AND STUDIO 13 DESIGN GROUP, PLLC. FOR ORIGINAL PROFESSIONAL LANDSCAPE ARCHITECTURE SERVICES AGREEMENT made as of the 18th day of June in the Year Two Thousand and Twelve: BETWEEN the Town: and the Contractor: for the following Project: The Town of Prosper, Texas P.O. Box 307 113 W Broadway Prosper, Texas 75078 Telephone: (972) 346-3502 Facsimile: (972) 347-2111 Studio 13 Design Group, PLLC. 519 Bennett Lane, Suite 203 Lewisville, TX 75057 Telephone: (469) 635-1900 www. studio 13. bz TOWN OF PROSPER STREETSCAPE DESIGN The Town and the Contractor agree as set forth below. THIS AGREEMENT is made and entered by and between the Town of Prosper, Texas, hereinafter referred to as "Town", and (Studio 13 Design Group, PLLC.), hereinafter referred to as "Contractor", to be effective from and after the date as provided herein the "Agreement". Design Services Agreement Page 1 of 14 WHEREAS, the Town desires to engage the services of the Contractor to prepare Construction Documents for Town of Prosper Street Medians along Coit Road & First street based on Engineers plans, hereinafter referred to as the "Project"; and WHEREAS, the Contractor desires to render such Landscape Architecture Services for the Town upon the terms and conditions provided herein. NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: That for and in consideration of the covenants contained herein, and for the mutual benefits to be obtained hereby, the parities hereto agree as follows: ARTICLE 1 CONTRACTOR'S SERVICES 1.1 Employment of the Contractor - The Town hereby agrees to retain the Contractor to perform professional services in connection with the Project. Contractor agrees to perform such services in accordance with the terms and conditions of this Agreement. 1.2 Scope of Services - The parties agree that Contractor shall perform such services as are set forth and described in Exhibit "A", which is attached hereto and incorporated herein by reference for all purposes. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A", in the form of written change orders, may be authorized from time to time by the Town. 1.3 Schedule of Work - The Contractor agrees to commence work immediately upon execution of this Agreement, and to proceed diligently with said work to completion as described in the Completion Schedule/Project Billing/Project Budget attached hereto as Exhibit "B" and incorporated herein by reference for all purposes. ARTICLE 2 THE TOWN'S RESPONSIBILITIES 2.1 Proiect Data - The Town shall furnish required information, that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Contractor shall be entitled to rely upon the accuracy and completeness thereof. 2.2 Town Proiect Manager, - The Town shall designate, when necessary, a representative authorized to act on the Town's behalf with respect to the Project (the "Project Manager"). The Town or such authorized representative shall examine the documents submitted by the Contractor and shall render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Contractor's services. Design Services Agreement Page 2 of 14 ARTICLE 3 CONTRACTOR'S COMPENSATION 3.1 Gompensati:on for Contractor's Services - As described in "Article 1, Contractor's Services", compensation for this project shall be on a time and expense basis not to exceed Eight Thousand Four Hundred Twenty Five Dollars and zero cents ($8,425.00), ("Contractor's Fee") and shall be paid in accordance with Article 3 and the Completion Schedule/Project Billing/Project Budget as set forth in Exhibit "B". The final 5% of the Contractor's Fee, or Four Hundred Twenty One Dollars and Twenty Five cents ($421.25), shall not be paid until the Contractor has delivered the final product as specified in the Project Deliverables section of the Scope of Services attached hereto as Exhibit "A". 3.4 Invoices — No payment to the Contractor shall be made until Contractor tenders an invoice to the Town. Payments are payable to the Contractor within thirty (30) days from the date of invoice as long as the invoice is mailed to Town within three (3) days of the date of the invoice. Invoices are to be mailed to Town immediately upon completion of each individual task listed in Exhibit "B". If any invoice remains outstanding and unpaid for more than sixty (60) days from the date of invoice, and Contractor has fully performed its obligations as set forth herein, the Contractor has the option upon written notice to the Town, to suspend all work specified under this Agreement until the account is brought current. Continued performance and/or completion of work by the Contractor under this Agreement shall resume upon the payment of the earned fees by the Town. 3.5 Failure to Pay - Failure of the Town to pay an invoice, for a reason other than cause, to the Contractor within sixty (60) days from the date of the invoice shall grant the Contractor the right, in addition to any and all other rights provided, to, upon written notice to the Town, refuse to render further services to the Town and such act or acts shall not be deemed a breach of this Agreement. The Town shall not be required to pay any invoice submitted by the Consultant if the Contractor breached any provision(s) herein. 3.6 Adiusted Compensation - If the Scope of the Project or if the Contractor's services are materially changed, the amounts of the Contractor's compensation shall be equitably adjusted as approved by Town. Any additional amounts paid to the Contractor as a result of any material change to the Scope of the Project shall be agreed upon in writing by both parties before the services are performed. Additional services approved by the Town will be bill at a rate of — $ 95.00/hour PRINCIPAL $ 75.00/hour LANDSCAPE ARCHITECT $ 30.00/hour CLERICAUADMINISTRATIVE Design Services Agreement Page 3 of 14 3.7 Project Suspension - If the Project is suspended or abandoned in whole or in part for more than three (3) months, Contractor shall be entitled to compensation for any and all work completed to the satisfaction of Town in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment, Contractor shall deliver to Town all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Contractor in connection with this Agreement prior to Contractor receiving final payment. If the Project is resumed after being suspended for more than three (3) months, the Contractor's compensation shall be equitably adjusted as approved by the Town. Any additional amounts paid to the Contractor after the Project is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP OF DOCUMENTS The Project is the property of the Town, and Consultant may not use the documents, data, plans, or any other materials for any purpose not relating to the Project without Town's prior written consent. Town shall be furnished with such reproductions of the Project, data and maps as defined in the Project Deliverables section of Exhibit A. Upon completion of the work, or any earlier termination of this Agreement under Article 3 and/or Article 7, Consultant will revise plans, data, and maps to reflect changes made while working on the project and promptly furnish the same to the Town in an acceptable electronic format. All such reproductions shall be the property of the Town who may use them without the Consultant's permission for any purpose relating to the Project, including, but not limited to, completion of the Project, and/or additions, alterations, modifications, and/or revisions to the Project. ARTICLE 5 CONTRACTOR'S ACCOUNTING RECORDS Records of Direct Expenses and expenses pertaining to services performed in conjunction with the Project shall be kept on the basis of generally accepted accounting principles. Invoices will be sent to the Town as indicated in Article 3.4. Receipts for direct expense items and other records of project expenses will be included in the monthly invoices. ARTICLE 6 AUDITS AND RECORDS/PROHIBITED INTEREST The Contractor agrees that at any time during normal business hours and as often as Town may deem necessary, Contractor shall make available to representatives of the Town for examination all of its records with respect to all matters covered by this Agreement, and will permit such representatives of the Town to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records Design Services Agreement Page 4 of 14 of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of one (1) year from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Contractor agrees that it is aware of the prohibited interest requirement of the Town Charter, which is repeated on the Affidavit, and will abide by the same. Further, a lawful representative of Contractor shall execute the Affidavit attached hereto and incorporated herein by reference for all purposes. Contractor understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. ARTICLE 7 TERMINATION OF AGREEMENT/REMEDIES Town may, on thirty (30) days written notice to Contractor, terminate this Agreement, for any reason, before the termination date hereof, and without prejudice to any other remedy it may have. If Town terminates this Agreement due to a default of and/or breach by Contractor and the expense of finishing the Project exceeds the Contractor's Fee at the time of termination, Contractor waives its right to any portion of Contractor's Fee as set forth in Article 3 herein and agrees to pay any costs over and above the fee which Town is required to pay in order to finish the Project. On any default and/or breach by Contractor, Town may elect not to terminate the Agreement, and in such event it may make good the deficiency in which the default consists, and deduct the costs from the Contractor's Fee due Contractor as set forth in Article 3 herein. If Town terminates this Agreement and Contractor is not in default of the Agreement, Contractor shall be entitled to compensation for any and all work completed to the satisfaction of Town in accordance with the provisions of this Agreement prior to termination. In the event of any termination, Contractor shall deliver to Town all finished and/or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Contractor in connection with this Agreement prior to Contractor receiving final payment. The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 8 DISPUTE RESOLUTION/MEDIATION In addition to all remedies at law, the parties may resolve/mediate any controversy, claim or dispute arising out of or relating to the interpretation or performance of this Agreement, or breach thereof, by voluntary mediation to be conducted by a mutually acceptable mediator. Design Services Agreement Page 5 of 14 ARTICLE 9 INDEMNITY Contractor shall release, defend, indemnify and hold harmless Town and its Town Council members, officers, agents, representatives and employees from and against all damages, injuries (including death), claims, property damages (including loss of use), losses, demands, suits, judgments and costs, including reasonable attorney's fees and expenses, in any way arising out of, related to, or resulting from the performance of the work caused by the negligent act and/or wrongful intentional act and/or omission of Contractor, its officers, agents, representatives, employees, subcontractors, licensees, invitees or any other third parties from whom Contractor is legally responsible (hereinafter "Claims"). Contractor is expressly required to defend Town against all such Claims. In its sole discretion, Town shall have the right to select or to approve defense counsel to be retained by Contractor in fulfilling its obligation hereunder to defend and indemnify Town, unless such right is expressly waived by Town in writing. Town reserves the right to provide a portion or all of its own defense; however, Town is under no obligation to do so. Any such action by Town is not to be construed as a waiver of Contractor's obligation to defend Town or as a waiver of Contractor's obligation to indemnify Town pursuant to this Agreement. Contractor shall retain Town approved defense counsel within seven (7) business days of Town's written notice that Town is invoking its right to indemnification under this Agreement. If Contractor fails to retain counsel within such time period, Town shall have the right to retain defense counsel on its own behalf, and Contractor shall be liable for all costs incurred by Town. ARTICLE 10 NOTICES Contractor agrees that all notices or communications to Town permitted or required under this Agreement shall be delivered to Town at the following addresses: Town Manager Town of Prosper P.O. Box 307 Prosper, Texas 75078 and CC: Wade Harden Town of Prosper P.O. Box 307 Prosper, Texas 75078 Town agrees that all notices or communication to Contractor permitted or required under this Agreement shall be delivered to Contractor at the following address: Design Services Agreement Page 6 of 14 Leonard W. Reeves, RLA, ASLA Studio 13 Design Group, PLLC. 519 Bennett Lane, Suite 203 Lewisville, TX 75057 Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. All notices or communication required to be given in writing by one party or the other shall be considered as having been given to the addressee on the date such notice or communication is postmarked by the sending party. Each party may change the address to which notice may be sent to that party by giving notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 11 MISCELLANEOUS 11.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "C", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and/or contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. 11.2 Assignment and Subletting - The Contractor agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the Town. The Contractor further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Contractor of its full obligations to the Town as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Contractor, and there shall be no third party billing. 11.3 Successors and Assi ns - Town and Contractor, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. 11.4 Severability - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. Design Services Agreement Page 7 of 14 11.5 Venue -This entire Agreement is performable in Collin County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Collin County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 11.6 Execution/Consideration - This Agreement is executed by the parties hereto without coercion or duress for any substantial consideration, the sufficiency of which is forever confessed. 11.7 Authority - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 11.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 11.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 11.10 Multiple Counterparts - This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. 11.11 Sovereign Immunity — The parties agree that the Town has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. 11.12 Representatives — Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had the opportunity to confer with its counsel. 11.13 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Design Services Agreement Page 8 of 14 IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest day as reflected by the signatures below. Effective Date: TOW" The 1 0 CONTRACTOR Studio 13 Design Group LC, By: Lj i`1 Leonard W. Reeves, RLA, ASLA Title: Town Manager Title: Principal/Owner STATE OF TEXAS: COUNTY OF COLLIN: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED Mike Land , KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPATOWN THEREIN STATED. C EN UNDER 1 ,f 2012. a j I NOTARY PU MY HAND AND SEAL OF OFFICE THIS 2? --DAY OF STATE OF TEXAS: AND FOR THE STATE OF TEXAS { AMY MELI:NDA, PrUKWA MY CCMMfSS1Cjri EXPIRES 20 Is COUNTY OF COLLIN: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED Leonard W. Reeves , KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPATOWN THEREIN STATED. Design Services Agreement Page 9 of 14 GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS I`+ DAY OF 2012. ERIN L PESANTE c Notary Publjc State of Texas NOTARY P ELIC IN AND FOR THE STATE OF TEXAS .P,F ..,,,= My Commission Expires June 09, 2015 Design Services Agreement Page 10 of 14 EXHIBIT "A" SCOPE OF SERVICES Agreement between the Town of Prosper, Texas (Town) and Studio 13 Design Group, PLLC. PROJECT DESCRIPTION TASK 1 Coit Road & First Street Medians Planting Plan: The final landscape plans will be designed in accordance with the Town of Prosper thoroughfare standards and will include dimensional planting layout, planting notes, planting details and plant material descriptions. We will prepare final drawings, specifications, a final plant quantity list upon final plan approval and related documents setting fourth in detail the requirements for constructing the landscape planting. SUBTOTAL $ 3,175.00 (37.6°0 TASK 2 Colt Road & f=irst Street Medians — Irrigation Plan: Irrigation plans and construction documents will be prepared in accordance with the Town of Prosper thoroughfare standards & TCEQ requirements, and will include an automatic irrigation system that will be a cost-efficient system designed with reliable, top quality irrigation utilizing the latest in water -efficient features for optimum water management and distribution. The irrigation system will meet all TCEQ guidelines. SUBTOTAL $1,850.00 (22.0%) TASK 3 Construction Admin/Construction Management (ADD Services): TASK 4 We will perform the following construction phase services for the project as an additional service and the fee based on the attached fee schedule 1.) Prepare quantities for bidding: 2.) Provide consultation to you during construction SUBTOTAL $1,800.00 (21.4%) INCIDENTAL EXPENSES & ALLOWANCES Incidental Expenses & Project Allowance, including review sets delivered to Town by courier. SUBTOTAL $1,600.00 (19.0%) TOTAL $ 89425.00 (100%) Design Services Agreement Page 11 of 14 EXHIBIT B COMPLETION SCHEDULEIPROJECT BILLING/PROJECT BUDGET Agreement between the Town of Prosper, Texas (Town) and Studio 13 Design Group, PLLC. (Contractor) for the Town of Prosper First Street & Coit Road Median Improvements in the Town of Prosper. MONTH $ AMOUNT TASK COMPLETED 1 July $1,587.50 50% of Task 1 2 August $ 3,437.50 50% of Task 1, 100% of Task 2 3 October $ 1,800.00 100% of Task 3, if acce ted (3) October $ 1,600.00 (100% of Task 4,) (4) November $ 251.25 Retainage TOTAL $ 8,425.00 Design Services Agreement Page 12 of 14 EXHIBIT C AFFIDAVIT THE STATE OF TEXAS § COUNTIES OF COLLIN/DENTON § I, Leonard W. Reever, RL,A, ASLA a member of the Contractor team make this affidavit and hereby on oath state the following: I, and/or a person or persons related to me, have a substantial interest in a business entity that would be peculiarly affected by my work or decision on the project as those terms are defined in Article 988b, V.T.C.S. The business entity is: S&yiv /3 Oesmov Ceggp have/has) a substantial interest in this business entity for the following reasons: (Check all which are applicable) -"' Ownership of 10% or more of the voting shares of the business entity. ✓ Ownership of $2,500 or more of the fair market value of the business entity. Funds received from the business entity exceed 10% of income for the previous year. Real property is involved and has an equitable or legal ownership with a fair market value of at least $2,500. A relative of mine has substantial interest in the business entity or property that would be affected by my decision of the public body of which I am a member. Other: Design Services Agreement Page 13 of 14 Upon the filing of this affidavit with the Town of Prosper, Texas, I affirm that I will abstain from acting on any decision involving this business entity and from any further participation on this matter whatsoever. Signed this 12tV\ day of , 2012. Signature of Off icial/TitlePirrc�ALOWWM —4L BEFORE ME, the undersigned authority, this day personally appeared asci LAD . s=S and on oath stated that the facts hereinabove stated are true to the best of his/her knowledge or belief. Sworn to and subscribed before me on this 9*k day of 2012. ERIN L pESAN1E Notary lic in and for the State of Texas y►e� "* -"- Notary Pubttc. State of Taxes *t rt my Commission Expires afro June 04, 2015 My commission expires: 09ao us Design Services Agreement Page 14 of 14