13-35 - R1
1
TOWN OF PROSPER, TEXAS
RESOLUTION NO. 13-35
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 LANDSCAPE
ARCHITECTURAL AND ENGINEERING DESIGN SERVICES
AGREEMENT FOR THE DESIGN OF COCKRELL PARK, BETWEEN
FREESE AND NICHOLS, INC., AND THE TOWN OF PROSPER,
TEXAS.
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 Landscape
Architectural and Engineering Design Services Agreement for the design of Cockrell
Park, between Freese and Nichols, Inc., and the Town of Prosper, Texas, as hereto
attached.
SECTION 2
This Resolution shall take effect immediately upon its passage.
DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS, THIS THE 28TH DAY OF MAY, 2013.
i,
I
Ray Smi Mayor
E1r1a1�fi611i*".aj!1-14!,I/3. - . -
AGREEMENT
BETWEEN
THE TOWN OF PROSPER, TEXAS (TOWN)
AND
FREESE AND NICHOLS, INC. (CONSULTANT)
FOR
LANDSCAPE ARCHITECTURAL AND ENGINEERING
DESIGN SERVICES
Made as of the day of i in the year Two Thousand Thirteen:
BETWEEN the Town: The Town of Prosper, Texas
P.O. Box 307
Prosper, Texas 75078
Telephone: (972) 346-2640
Facsimile: (972) 346-9335
and the Consultant: Freese and Nichols, Inc.
6136 Prosper Square Blvd., Suite 200
Prosper, Texas 75034
Telephone: (972) 624-9200
for the following Project: Cockrell Park
The Town and the Consultant agree as set forth below.
THIS AGREEMENT is made and entered by and between the Town of Prosper,
Texas, a Home -Rule Municipal Corporation, hereinafter referred to as "Town," and
Freese and Nichols, Inc, hereinafter referred to as "Consultant," to be effective from
and after the date as provided herein, hereinafter referred to as "Agreement."
WHEREAS, the Town desires to engage the services of the Consultant to design
and/or prepare construction documents for a Cockrell Park, hereinafter referred to as
"Project;" and
WHEREAS, the Consultant desires to render such Landscape Architectural
and Engineering Services for the Town upon the terms and conditions provided
herein.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 1 of 35
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 parties agree as follows:
ARTICLE 1
CONSULTANT'S SERVICES
1.1 Emplovment of the Consultant — The Town hereby agrees to retain the
Consultant to perform professional engineering services in connection with the
Project. Consultant agrees to perform such services in accordance with the
terms and conditions of this Agreement. Consultant further agrees that if any
employee of the Consultant, who is performing the day-to-day services under this
Agreement for the Project, is separated, for any reason, from employment with
the Consultant, the Consultant shall notify, in writing, a minimum of five (5)
business days prior to said separation unless circumstances reasonably warrant
a shorter notice period which shall not exceed two (2) business days following
the separation.
1.2 Scope of Services — The parties agree that Consultant 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.
1.2.1 Requirement of Written Chanqe Order — "Extra" work, or "claims"
invoiced as "extra" work, or "claims" which have not been issued as a duly
executed, written change order by the Prosper Town Manager, will not be
authorized for payment and/or shall not become part of the subcontracts.
A duly executed written change order shall be preceded by the Town of
Prosper Town Council's authorization for the Prosper Town Manager to
execute said change order.
1.2.2 DO NOT PERFORM ANY EXTRA WORK AND/OR ADDITIONAL
SERVICES WITHOUT A DULY EXECUTED WRITTEN CHANGE ORDER
ISSUED BY THE PROSPER TOWN MANAGER. Project Managers,
Superintendents, and/or Inspectors of the Town are not authorized to
issue verbal or written change orders.
1.3 Schedule of Work — The Consultant agrees to commence work immediately
upon the execution of this Agreement, and to proceed diligently with said work to
completion as described in the Compensation Schedule / Project Billing / Project
Budget attached hereto as Exhibit "B" and incorporated herein by reference for
all purposes, but in no event shall the Project be completed any later than 180
days from Notice to Proceed.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 2 of 35
ARTICLE 2
THE TOWN'S RESPONSIBILITIES
Town shall do the following in a timely manner so as not to delay the services of
Consultant:
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 Consultant 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 Consultant and shall render any
required decisions pertaining thereto as soon as practicable so as to avoid
unreasonable delay in the progress of the Consultant's services. The Project
Manager is not authorized to issue verbal or written change orders for "extra"
work or "claims" invoiced as "extra" work.
ARTICLE 3
CONSULTANT'S COMPENSATION
3.1 Compensation for Consultant's Services — As described in "Article 1,
Consultant's Services," compensation for this Project shall be on a Lump Sum
Fee, for an amount not to exceed Eighty One Thousand Three Hundred and Fifty
One and 00/100 Dollars ($81,351.00), ("Consultant's Fee") and shall be paid in
accordance with Article 3 and the Compensation Schedule / Project Billing /
Project Budget as set forth in Exhibit "B."
3.1.1 Completion of Record Documents — Town and Consultant agree that
the completion of the Record Documents and/or "As -Built" Documents,
including hard copy formatting and electronic formatting, shall be
completed, submitted to, and accepted by the Town prior to payment of
the final five percent (5%) of the Consultant's Fee, or Four Thousand and
Sixty Seven and 55/100 Dollars ($ 4,067.55). The electronic formatting
shall be consistent with the standards established in Exhibit "C," Town of
Prosper Guidelines for Computer Aided Design and Drafting ("CADD").
Completion of the Record Documents and/or "As -Built" documents shall
be included in the Consultant's Fee and considered to be within the Scope
of Services defined under this Agreement.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 3 of 35
3.1.2 Disputes between Town and Construction Contractor — If the Project
involves the Consultant performing Construction Administration Services
relating to an agreement between a Construction Contractor (the
"Contractor") and the Town, and upon receipt of a written request by
Town, Consultant shall research previous and existing conditions of the
Project, and make a determination whether or not to certify that sufficient
cause exists for the Town to declare the Contractor in default of the terms
and conditions of the agreement. Consultant shall submit his findings in
writing to the Town, or submit a written request for a specific extension of
time (including the basis for such extension), within fifteen (15) calendar
days of receipt of the written request from the Town. Town and
Consultant agree that if requested by the Town, completion of this task
shall be included in the Consultant's Fee and considered to be within the
Scope of Services as defined under this Agreement.
3.1.3 Consultation and Approval by Governmental Authorities and
Franchised Utilities — Consultant shall be responsible for identifying and
analyzing the requirements of governmental agencies and all franchise
utilities involved with the Project, and to participate in consultation with
said agencies in order to obtain all necessary approvals and/or
permissions. The Consultant shall be responsible for preparation and
timely submittal of documents required for review, approval, and/or
recording by such agencies. The Consultant shall be responsible for
making such changes in the Construction Documents as may be required
by existing written standards promulgated by such agencies at no
additional charge to Town.
3.1.4 Substantial Compliance with Architectural Barriers Act — Should the
Project fall within the regulatory requirements of the Texas Architectural
Barriers Act, Chapter 68 Texas Administrative Code , as it exists or may
be amended (the "Barriers Act"), as solely determined by the Town,
Consultant shall comply with the Barriers Act. As part of the Scope of
Services defined in this Agreement, it is the sole responsibility of the
Consultant to identify and analyze the requirements of the Barriers Act
and to become familiar with the governmental authorities having
jurisdiction to approve the design of the Project. Consultant shall
participate in consultations with said authorities in order to obtain approval
for the Project. As part of the services provided under the Consultant's
Fee, the Consultant shall obtain the Notice of Substantial Compliance for
the Project from the Texas Department of Licensing and Regulation (the
"TDLR"). The Consultant shall, without additional compensation,
immediately correct any errors, omissions, or deficiencies in the design
services and/or construction documents identified by TDLR and/or a
Registered Accessibility Specialist ("RAS") at any phase of the Project,
either by review of the construction documents, or inspection of the
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 4 of 35
Project at the commencement of construction, during the construction of
the Project, or at the completion of construction.
3.1.4.1 Submission of Construction Documents to TDLR — The
Consultant shall mail, ship, or hand -deliver the construction
documents to TDLR not later than five (5) calendar days after
the Consultant issues the construction documents for the
Project.
3.1.4.2 Completion of Registration Form to TDLR — Consultant shall
complete an Elimination of Barriers Project Registration Form
(The "Form") for each subject building or facility within the
Scope of the Project, and submit the registration form(s) along
with the applicable fees not later than fourteen (14) calendar
days after the Consultant completes the submittal of the
construction documents to TDLR.
3.1.4.3 TDLR Approval of Construction Documents — After review of
the construction documents by TDLR, the Consultant shall be
notified in writing of the results; however, it is the Consultant's
responsibility to obtain TDLR's written comments. The
Consultant shall address all comments that prevent TDLR
approval of the construction documents, including comments
relating to Conditional Approval that must be addressed in the
design and construction of the Project. Consultant shall
resubmit construction documents to TDLR for review prior to the
completion of construction of the Project.
3.1.4.4 TDLR Proiect Inspection — Consultant shall request an
inspection from TDLR or a TDLR locally approved RAS no later
than thirty (30) calendar days after the completion of
construction of the Project. The Consultant shall advise the
Town in writing of the results of each Project inspection. Town
reserves the right to verify the written results with TDLR at any
time during design, construction, or at the completion of the
Project.
3.1.4.5 Corrective Modifications followina TDLR Proiect Inspection
When corrective modifications to achieve substantial
compliance are required, the TDLR inspector or the RAS shall
provide the Consultant a list of deficiencies and a deadline for
completing the modifications. Consultant shall provide the
Town with this list within five (5) calendar days of receipt. It is
the sole responsibility of the Consultant to completely address
the deficiencies by the stated deadline or to obtain a written
notice of extension from the TDLR. When the corrective
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 5 of 35
measures have been completed, Consultant shall provide the
TDLR (and/or the RAS who completed the inspection) and the
Town with written verification of the corrective measures
completed.
3.1.4.6 TDLR Notice of Substantial Compliance — TDLR shall provide
a Notice of Substantial Compliance to the Town after the newly
constructed Project has had a satisfactory inspection, or
Consultant has submitted verification of corrective modifications.
Town and Consultant agree that the final five percent (5%) of
Consultant's Fee, or Four Thousand and Sixty Seven and
55/100 Dollars ($ 4,603.55) shall not be paid until the Town is in
receipt of the TDLR's Notice of Substantial Compliance for all
Project components and/or phases of the Project.
3.2 Direct Expenses — Direct Expenses are included in the Consultant's Fee as
described in Article 3.1 and include actual reasonable and necessary
expenditures made by the Consultant and the Consultant's employees and
subcontractors in the interest of the Project. All submitted Direct Expenses are to
be within the amounts as stated in the Compensation Schedule / Project Billing /
Project Budget set forth in Exhibit "B," and consistent with Exhibit "D," Town of
Prosper Guidelines for Direct Expenses; General and Administrative Markup;
Travel and Subsistence Expenses. The Consultant shall be solely responsible
for the auditing and accuracy of all Direct Expenses, including those of its
subcontractors, prior to submitting to the Town for reimbursement, and shall be
responsible for the accuracy thereof. Any over -payment by the Town for errors in
submittals for reimbursement may be deducted from the Consultant's
subsequent payment for services; provided, however this shall not be the Town's
sole and exclusive remedy for said over -payment.
3.3 Additional Services — The Consultant shall provide the services as described in
the Scope of Services as set forth in Exhibit "A" of this Agreement. If authorized
in writing by the Town, the Consultant shall provide additional services, to be
compensated on an hourly basis in accordance with this paragraph ("Additional
Services"). These services may include, but are not limited to:
3.3.1 Additional meetings, hearings, work -sessions, or other similar
presentations which are not provided for or contemplated in the Scope of
Services described in Exhibit "A."
3.3.2 Additional drafts and revisions to the Project which are not provided for or
contemplated in the Scope of Services as described in Exhibit "A."
3.3.3 Additional copies of final reports and construction plans which are not
provided for or contemplated in the Scope of Services as described in
Exhibit "A."
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 6 of 35
3.3.4 Photography, professional massing models which are not provided for or
contemplated in the Scope of Services as described in Exhibit "A."
3.3.5 Compensation for Additional Services authorized by the Town shall be in
addition to the Consultant's Fee and shall be based on direct billable labor
rates and expenses.
3.3.6 Compensation for Additional Services authorized by the Town shall be in
addition to the Consultant's Fee and shall be based on an hourly basis
according to the following personnel rates. The rates set forth in this chart
are subject to reasonable change provided prior written notice of said
change is given to Town.
Hourly Billable Rates by Position
Name Position
Hourly Rate
-- Principal
$200.00
-- Project Manager
$165.00
-- Senior Engineer / Senior Landscape Architect
$185.00
-- Project Engineer
$140.00
-- E.I.T.
$115.00
-- Senior Environmental Scientist
$160.00
-- Environmental Scientist
$115.00
-- Landscape Architect
$100.00
-- Design / Cad Technician
$ 90.00
-- Clerical
$ 70.00
3.4 Invoices — No payment to Consultant shall be made until the Consultant tenders
an invoice to the Town. The Consultant shall submit monthly invoices for
services rendered, based upon the actual percentage of work complete at the
time the invoice is prepared, or are to be mailed to Town immediately upon
completion of each individual task listed in Exhibit "B." On all submitted invoices
for services rendered and work completed on a monthly basis, Consultant shall
include appropriate background materials to support the submitted charges on
said invoice. Such background material shall include, but is not limited to,
employee timesheets, invoices for work obtained from other parties, and receipts
and/or log information relating to Direct Expenses. All invoices for payment shall
provide a summary methodology for administrative markup and/or overhead
charges.
3.5 Timinq of Pavment — Town shall make payment to Consultant for said invoices
within thirty (30) days following receipt and acceptance thereof. The parties
agree that payment by Town to Consultant is considered to be complete upon
mailing of payment by Town. Furthermore, the parties agree that the payment is
considered to be mailed on the date that the payment is postmarked.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 7 of 35
3.6 Disputed Pavment Procedures — In the event of a disputed or contested billing
by Town, only that portion so contested may be withheld from payment, and the
undisputed portion will be paid. Town shall notify Consultant of a disputed
invoice, or portion of an invoice, in writing by the twenty-first (21s) calendar day
after the date the Town receives the invoice. Town shall provide Consultant an
opportunity to cure the basis of the dispute. If a dispute is resolved in favor of the
Consultant, Town shall proceed to process said invoice, or the disputed portion
of the invoice, within the provisions of Article 3.5. If a dispute is resolved in favor
of the Town, Consultant shall submit to Town a corrected invoice, reflecting any
and all payment(s) of the undisputed amounts, documenting the credited
amounts, and identifying outstanding amounts on said invoice to aid Town in
processing payment for the remaining balance. Such revised invoice shall have
a new invoice number, clearly referencing the previous submitted invoice. Town
agrees to exercise reasonableness in contesting any billing or portion thereof that
has background materials supporting the submitted charges.
3.7 Failure to Pav — Failure of the Town to pay an invoice, for a reason other than
upon written notification as stated in the provisions of Article 3.6 to the
Consultant within sixty (60) days from the date of the invoice shall grant the
Consultant the right, in addition to any and all other rights provided, to, upon
written notice to the Town, suspend performance under this Agreement, and
such act or acts shall not be deemed a breach of this Agreement. However,
Consultant shall not suspend performance under this Agreement prior to the
tenth (10'h) calendar day after written notice of suspension was provided to
Town, in accordance with Chapter 2251, Subchapter "D" ("Remedy for
Nonpayment") of the Texas Government Code. The Town shall not be required
to pay any invoice submitted by the Consultant if the Consultant breached any
provision(s) herein.
3.8 Adiusted Compensation — If the Scope of the Project or if the Consultant's
services are materially changed due to no error on behalf of Consultant in the
performance of services under this Agreement, the amounts of the Consultant's
compensation shall be equitably adjusted as approved by Town. Any additional
amounts paid to the Consultant as a result of any material change to the Scope
of the Project shall be authorized by written change order duly executed by both
parties before the services are performed.
3.9 Proiect Suspension — If the Project is suspended or abandoned in whole or in
part for more than three (3) months, Consultant 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, Consultant shall deliver to Town all finished
or unfinished documents, data, studies, drawings, maps, models, reports,
photographs, and/or any other items prepared by Consultant in connection with
this Agreement prior to Consultant receiving final payment. If the Project is
resumed after being suspended for more than three (3) months, the Consultant's
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 8 of 35
compensation shall be equitably adjusted as approved by the Town. Any
additional amounts paid to the Consultant after the Project is resumed shall be
agreed upon in writing by both parties before the services are performed.
ARTICLE 4
OWNERSHIP OF DOCUMENTS
4.1 Documents Propertv of the Town — The Project is the property of the Town,
and Consultant may not use the documents, plans, data, studies, surveys,
drawings, maps, models, reports, photographs, and/or any materials for any
other purpose not relating to the Project without Town's prior written consent.
Town shall be furnished with such reproductions of the Project, plans, data,
documents, maps, and any other information as defined in Exhibit "A." Upon
completion of the work, or any earlier termination of this Agreement under Article
3 and/or Article 8, Consultant will revise plans, data, documents, maps, and any
other information as defined in Exhibit "A" to reflect changes while working on the
Project through the date of completion of the work, as solely determined by
Town, or the effective date of any earlier termination of this Agreement under
Article 3 and/or Article 8, 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. Any
reuse of the documents not relating to the Project shall be at the Town's own
risk.
4.2 Documents Subiect to Laws Regarding Public Disclosure — Consultant
acknowledges that Town is a governmental entity and that all documents, plans,
data, studies, surveys, drawings, maps, models, reports, photographs, and/or
any items prepared or furnished by Consultant (and Consultant's professional
associates and/or Sub -consultants) under this Agreement are instruments of
service in respect of the Project and property of the Town and upon completion
of the Project shall thereafter be subject to the Texas Public Information Act
(Texas Government Code, Chapter 552) and any other applicable laws requiring
public disclosure of the information contained in said documents.
ARTICLE 5
CONSULTANT'S INSURANCE REQUIREMENTS
5.1 Required General Liabilitv Insurance — Consistent with the terms and
provisions of Exhibit "E," Town of Prosper Contractor Insurance Guidelines,
Consultant shall maintain, at no expense to Town, a general liability insurance
policy with a company that maintains a minimum rating of "A" by A.M. Best's Key
Rating Guide, or other equivalent rating service(s), authorized to transact
business in the State of Texas, in an amount not less than One Million and
00/100 Dollars ($1,000,000.00) for each occurrence, and Two Million and 00/100
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 9 of 35
Dollars ($2,000,000.00) in the aggregate. Such policy shall name the Town, its
officers, agents, representatives, and employees as additional insured as to all
applicable coverage. Such policy shall provide for a waiver of subrogation
against the Town for injuries, including death, property damage, or any other loss
to the extent that same is covered by the proceeds of the insurance. Such policy
shall require the provision of written notice to Town at least thirty (30) days prior
to cancellation, non -renewal, or material modification of any policies, evidenced
by return receipt or United States Certified Mail. Consultant shall furnish Town
with certificates evidencing such coverage prior to commencing work on the
Project.
5.2 Required Professional Liabilitv Insurance — Consistent with the terms and
provisions of Exhibit "E," Town of Prosper Contractor Insurance Guidelines,
Consultant shall maintain, at no expense to Town, a professional liability (errors
and omissions) insurance policy with a company that maintains a minimum rating
of "A" by A.M. Best's Key Rating Guide, or other equivalent rating service(s),
authorized to transact business in the State of Texas, in an amount not less than
One Million and 00/100 Dollars ($1,000,000.00) for each claim, and Two Million
and 00/100 Dollars ($2,000,000.00) in the aggregate. Such policy shall require
the provision of written notice to Town at least thirty (30) days prior to
cancellation, non -renewal, or material modification of any policies, evidenced by
return receipt or United States Certified Mail. Consultant shall furnish Town with
certificates evidencing such coverage prior to commencing work on the Project.
5.3 Required Workers Compensation Insurance — Consistent with the terms and
provisions of Exhibit "E," Town of Prosper Contractor Insurance Guidelines,
Consultant shall maintain, at no expense to Town, all Statutory Workers
Compensation Insurance as required by the laws of the State of Texas. Such
insurance policy shall be with a company that maintains a minimum rating of "A"
by A.M. Best's Key Rating Guide, or other equivalent service(s), and authorized
to transact business in the State of Texas. Such policy shall require the provision
of written notice to Town at least thirty (30) days prior to cancellation, non -
renewal, or material modification of any policies, evidenced by return receipt or
United States Certified Mail. Consultant shall furnish Town with certificates
evidencing such coverage prior to commencing work on the Project.
5.4 Circumstances Reauirina Umbrella Coveraae or Excess Liabilitv Coveraqe
— If Project size and scope warrant, and if identified on the checklist located in
Exhibit "E," Town of Prosper Contractor Insurance Guidelines, Consultant shall
maintain, at no expense to the Town, an umbrella coverage or excess liability
coverage insurance policy with a company that maintains a minimum rating of "A"
by A.M. Best's Key Rating Guide, or other equivalent rating service(s), authorized
to transact business in the State of Texas, in an amount of Two Million and
00/100 Dollars ($2,000,000.00). Such policy shall require the provision of written
notice to the Town at least thirty (30) days prior to cancellation, non -renewal, or
material modification of any policies, evidenced by return receipt or United States
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 10 of 35
Certified Mail. Consultant shall furnish Town with certificates evidencing such
coverage prior to commencing work on the Project.
ARTICLE 6
CONSULTANT'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. Copies of
employee time sheets, receipts for direct expense items and other records of Project
expenses will be included in the monthly invoices.
ARTICLE 7
AUDITS AND RECORDS / PROHIBITED INTEREST / VENDOR DISCLOSURE
The Consultant agrees that at any time during normal business hours and as often as
the Town may deem necessary, Consultant 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 of personnel, conditions of employment and other
data relating to all matters covered by this Agreement, and for a period of four (4) years
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 Consultant agrees that it is aware of the prohibited interest requirement of the Town
Charter, which is repeated on the Affidavit, attached hereto as Exhibit "F" and
incorporated herein for all purposes, and will abide by the same. Further, a lawful
representative of Consultant shall execute the Affidavit attached hereto as Exhibit "F."
Consultant understands and agrees that the existence of a prohibited interest during the
term of this Agreement will render the Agreement voidable.
Consultant agrees that it is further aware of the vendor disclosure requirements set forth
in Chapter 176, Local Government Code, as amended, and will abide by the same. In
this connection, a lawful representative of Consultant shall execute the Conflict of
Interest Questionnaire, Form CIQ, attached hereto as Exhibit "G" and incorporated
herein for all purposes.
ARTICLE 8
TERMINATION OF AGREEMENT / REMEDIES
Town may, upon thirty (30) days written notice to Consultant, terminate this Agreement,
for any reason or no reason at all, 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 Consultant and the expense of finishing the Project exceeds
the Consultant's Fee at the time of termination, Consultant waives its right to any portion
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 11 of 35
of Consultant's Fee as set forth in Article 3 herein and agrees to pay any costs over and
above the fee which the Town is required to pay in order to finish the Project. On any
default and/or breach by Consultant, 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 Consultant's Fee due Consultant as set forth in Article 3
herein. If Town terminates this Agreement and Consultant is not in default of the
Agreement, Consultant shall be entitled to compensation for any and all work completed
to the satisfaction of the Town in accordance with the provisions of this Agreement prior
to termination.
In the event of any termination, Consultant shall deliver to Town all finished and/or
unfinished documents, data, studies, surveys, drawings, maps, models, reports,
photographs and/or any items prepared by Consultant in connection with this
Agreement prior to Consultant 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 9
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.
ARTICLE 10
INDEMNITY
CONSULTANT 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 (INCLUDING ATTORNEY'S FEES AND EXPENSES INCURRED IN
ENFORCING THIS INDEMNITY), TO THE EXTENT CAUSED, IN WHOLE OR IN PART, BY
THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL WRONGFUL ACT
AND/OR OMISSION OF CONSULTANT, ITS OFFICERS, AGENTS, REPRESENTATIVES,
EMPLOYEES, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD
PARTIES FROM WHOM CONSULTANT IS LEGALLY RESPONSBILE, IN ITS/THEIR
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 12 of 35
PERFORMANCE OF THIS AGREEMENT AND/OR ARISING OUT OF GOODS AND/OR
SERVICES PROVIDED BY CONSULTANT PURSUANT TO THIS AGREEMENT,
REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY
OF THE TOWN (HEREINAFTER "CLAIMS"). THIS INDEMNIFICATION PROVISION AND
THE USE OF THE TERM "CLAIMS" IS ALSO SPECIFICALLY INTENDED TO APPLY TO,
BUT NOT LIMITED TO, ANY AND ALL CLAIMS, WHETHER CIVIL OR CRIMINAL,
BROUGHT AGAINST TOWN BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED
TO ANY PERSON PROVIDING SERVICES UNDER THIS AGREEMENT THAT ARE BASED
ON ANY FEDERAL IMMIGRATION LAW AND ANY AND ALL CLAIMS, DEMANDS,
DAMAGES, ACTIONS AND CAUSES OF ACTION OF EVERY KIND AND NATURE, KNOWN
AND UNKNOWN, EXISTING OR CLAIMED TO EXIST, RELATING TO OR ARISING OUT OF
ANY EMPLOYMENT RELATIONSHIP BETWEEN CONSULTANT AND ITS EMPLOYEES OR
SUBCONTRACTORS AS A RESULT OF THAT SUBCONTRACTOR'S OR EMPLOYEE'S
EMPLOYMENT AND/OR SEPARATION FROM EMPLOYMENT WITH THE CONSULTANT,
INCLUDING BUT NOT LIMITED TO ANY DISCRIMINATION CLAIM BASED ON SEX,
SEXUAL ORIENTATION OR PREFERENCE, RACE, RELIGION, COLOR, NATIONAL
ORIGIN, AGE OR DISABILITY UNDER FEDERAL, STATE OR LOCAL LAW, RULE OR
REGULATION, AND/OR ANY CLAIM FOR WRONGFUL TERMINATION, BACK PAY,
FUTURE WAGE LOSS, OVERTIME PAY, EMPLOYEE BENEFITS, INJURY SUBJECT TO
RELIEF UNDER THE WORKERS' COMPENSATION ACT OR WOULD BE SUBJECT TO
RELIEF UNDER ANY POLICY FOR WORKERS COMPENSATION INSURANCE, AND ANY
OTHER CLAIM, WHETHER IN TORT, CONTRACT OR OTHERWISE. CONSULTANT IS
EXPRESSLY REQUIRED TO DEFEND TOWN AGAINST ALL SUCH CLAIMS; PROVIDED,
HOWEVER, IF A COURT OF COMPETENT JURISDICTION SIGNS A JUDGMENT THAT
BECOMES FINAL AND NON -APPEALABLE, DETERMINING THAT THE TOWN (WITHOUT
WAIVING ANY GOVERNMENTAL IMMUNITY) HAS JOINT, CONCURRENT OR SOLE
NEGLIGENCE FOR THE CLAIMS, IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS (THE "JUDGMENT"), THEN CONSULTANT IS NOT REQUIRED TO INDEMNIFY
OR DEFEND THE TOWN TO THE EXTENT OF THE NEGLIGENCE APPORTIONED TO THE
TOWN FOR EACH CAUSE(S) OF ACTION IDENTIFIED IN THE JUDGMENT. IN THE
EVENT THE JUDGMENT PROVIDES THAT TOWN IS JOINTLY, CONCURRENTLY, OR
SOLELY NEGLIGENT FOR THE CLAIMS REFERRED TO THEREIN, TOWN AGREES TO
REIMBURSE CONSULTANT FOR ALL REASONABLE AND NECESSARY COSTS
INCURRED AND PAID BY CONSULTANT THAT ARE ATTRIBUTABLE TO TOWN'S
PERCENTAGE OF JOINT, CONCURRENT, OR SOLE NEGLIGENCE, AS SET FORTH IN
THE JUDGMENT, INCLUDING REASONABLE AND NECESSARY ATTORNEY 9S FEES
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 13 of 35
AND EXPENSES, TO CONSULTANT WITHIN SIXTY (60) DAYS OF THE DATE OF THE
JUDGMENT (THE "REIMBURSEMENT ALLOCATION").
IN ITS SOLE DISCRETION, TOWN SHALL HAVE THE RIGHT TO APPROVE OR SELECT
DEFENSE COUNSEL TO BE RETAINED BY CONSULTANT 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 CONSULTANT'S OBLIGATION TO DEFEND TOWN OR AS A WAIVER OF
CONSULTANT'S OBLIGATION TO INDEMNIFY TOWN PURSUANT TO THIS
AGREEMENT. CONSULTANT 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
CONSULTANT FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, TOWN SHALL
HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND
CONSULTANT SHALL BE LIABLE FOR ALL COSTS INCURRED BY TOWN. THE RIGHTS
AND OBLIGATIONS CREATED BY THIS PARAGRAPH SHALL SURVIVE TERMINATION
OF THIS AGREEMENT.
ARTICLE 11
NOTICES
Consultant agrees that all notices or communications to Town permitted or required
under this Agreement shall be delivered to Town at the following addresses:
Harlan Jefferson
Town Manager
Town of Prosper
P.O. Box 307
Prosper, Texas 75078
Town agrees that all notices or communication to Consultant permitted or required
under this Agreement shall be delivered to Consultant at the following addresses:
Trish Hatley
Freese and Nichols, Inc.
1701 N. Market Street, Suite 500
Dallas, Texas 75202
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 14 of 35
Any notice provided in writing 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 12
MISCELLANEOUS
12.1 Complete Aqreement — This Agreement, including the exhibits hereto labeled
"A" through "G," 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. The
following exhibits are attached below and made a part of this Agreement:
12.1.1 Exhibit "A," Scope of Services.
12.1.2 Exhibit "B," Compensation Schedule / Project Billing / Project Budget.
12.1.3 Exhibit "C," Town of Prosper Guidelines for Computer Aided Design and
Drafting (CADD).
12.1.4 Exhibit "D," Town of Prosper Guidelines for Direct Expenses; General
and Administrative Markup; Travel and Subsistence Expenses.
12.1.5 Exhibit "E," Town of Prosper Contractor Insurance Guidelines.
12.1.7 Exhibit "F," Affidavit.
12.1.8 Exhibit "G," Conflict of Interest Questionnaire, Form CIQ.
12.2 Assiqnment and Sublettinq — The Consultant 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 Consultant 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 Consultant 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 Consultant,
and there shall be no third party billing.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 15 of 35
12.3 Successors and Assiqns — Town and Consultant, and their partners, assigns,
successors, subcontractors, executors, officers, agents, employees,
representatives, and administrators are hereby bound to the terms and
conditions of this Agreement.
12.4 Severabilitv — In the event of 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.
12.5 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 in Collin County, Texas, and this
Agreement shall be construed under the laws of the State of Texas.
12.6 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.
12.7 Authoritv — 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 other 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 hereof.
12.8 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.
12.9 Headinqs — 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.
12.10 Multiple Counterparts — This Agreement may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 16 of 35
12.11 Sovereian Immunitv — The parties agree that the Town has not waived its
sovereign immunity by entering into and performing its obligations under this
Agreement.
12.12 Additional Representations — 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.
12.13 Miscellaneous Draftina 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.
12.14 No Third Partv Beneficiaries - Nothing in this Agreement shall be construed to
create any right in any third party not a signatory to this Agreement, and the
parties do not intend to create any third party beneficiaries by entering into this
Agreement.
12.15 Indemnitv — The parties agree that the Indemnity provision set forth in Article 10
herein is conspicuous and the parties have read and understood the same.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused this
Agreement to be effective on the latest reflected by the signatures below.
Effective Date: 1) A
TOWN
Town �Pr sper, T
By: ; �
Harlan Jeffers
Title: Town Manaaer
CONSULTANT
Freese and Nichols, Inc.
By: o-u ti
Title: V r� D, V,s lon mG��Jd
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 17 of 35
STATE OF TEXAS:
COUNTY OF COLLIN:
BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED HARLAN
JEFFERSON, 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.
GIVEN UNDER
MY HAND AND SEAL OF OFFICE THIS aDAY OF
Robyn D. Battle
Notary Public,
4*y� State of Texas
Comm. exp. 0
5
-04-1 S
STATE OF TEXAS:
2013.
NOTARY PUBL IN AND FOR THE STATE OF TEXAS
My commission expires: 41 I
COUNTY OF(
'� G
BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR
TF+If ST TE OF T S, ON THIS DAY PERSONALLY APPEARED
1 �- �A) G , 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.
GIVE UNDER MY HAND AND SEAL OF OFFICE THIS 2'-zjl�DAY OF
2013.
NOTARY PUBLI N AND Fqk R THE STAT IOF TEXAS
CHERYLCOWELL My commission a pires:���
M*VY I rjC, State o
My Crxnmiss.Exp
Scptembar 27. 2616
ir it t
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 18 of 35
EXHIBIT "A"
SCOPE OF SERVICES
Agreement by and between the Town of Prosper, Texas (Town)
and Freese and Nichols, Inc. (Consultant)
to perform Landscape Architectural and Engineering Design Services for
Cockrell Park
I. PROJECT DESCRIPTION
Freese and Nichols, Inc. ("FNI") will perform professional design services for the Town
of Prosper ("Town") for developing construction documents for the park improvements
for Cockrell Park in Prosper, Texas. FNI will prepare final construction documents for
the park improvements for the purpose of bidding the work in accordance with Town
standards and budgets, as well as federal, state and local laws.
This scope of work includes professional landscape architectural, and engineering
design services. The proposed park improvements, scope of work and fee schedule is
based upon the Town's park program and an approximate construction budget of
$915,400.00 as identified by the Town in their Preliminary Program & Budget
Projections dated February 28, 2012 as developed between the Town and FNI.
II. TOPOGRAPHIC SURVEY AND PLATTING
A. TOPOGRAPHIC SURVEY
FNI will be provided from the Town a current boundary survey and
any information for the existing site, if readily available.
2. FNI will perform a topographic survey for the site, including all
manmade structures, trees with 6" caliper or greater, above ground
site features & visible utilities.
3. FNI will also establish 3 on -site temporary benchmarks for use the
preparation of the construction documents.
4. FNI will prepare a digital topographic survey map at 1' contour
intervals for use as the existing site conditions. This map will also
include spot elevations for items listed in #2 as needed to
accurately depict the site.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 19 of 35
EXHIBIT "A"
SCOPE OF SERVICES
III. CONSTRUCTION DOCUMENTS
A. BASE MAPPING AND PROGRAM DEVELOPMENT
FNI will conduct a walk-through of the site and general area with
the Town to visually inventory the existing site features, both on -site
and off -site.
2. FNI will utilize the topographic survey information for Cockrell Park,
as prepared by FNI in this scope of services. The Town will also
provide FNI any readily available information required to perform
this Scope of Services for on -site and off -site conditions including,
but not limited to: above and below ground utilities; easements;
property lines; right-of-ways, subdivision layouts, roadways,
vegetation, soils/geotechnical information, hydrology/drainage
information, etc. Based upon the existing survey and additional
information provided by the Town, FNI will prepare an existing
conditions base map(s) for use in Concept Design, Design
Development and Final Construction Documents. Should any
additional site survey information be necessary, the Town will be
responsible for providing this information.
3. During the base mapping, FNI will meet with the Town staff to
discuss the park improvement Program and specifically define the
Town's goals for the park development. This meeting will also
confirm the final budget allocation by the Town for the construction
of the park improvements.
Task A Deliverables:
Existing Conditions Base Maps
Park Development Program
Preliminary Program Budget Projections
B. PRELIMINARY DESIGN CONCEPT PLAN
Based on the Town approved vision, goals and program, FNI will
prepare a Preliminary Design Concept Plan for the proposed park
improvements.
2. FNI will attend one (1) meeting with the Town to review the
Preliminary Design Concept Plan to confirm the overall design and
obtain Town approval of the plan. During this meeting, FNI team
members will confirm the development goals and program items
and document any potential changes to the program. Should extra
meetings or any public input meetings be required to complete this
task, FNI will review with the Town the required additional fees
necessary to cover the increase in scope of work.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 20 of 35
EXHIBIT "A"
SCOPE OF SERVICES
3. FNI will make any necessary changes to the Preliminary Design
Concept Plan resulting from the review meeting as directed by the
Town. Based upon the approved Preliminary Design Concept Plan,
FNI will prepare a Preliminary Cost Estimate for the proposed
improvements.
4. FNI will attend one (1) meeting with the Town to review the
approved Preliminary Design Concept Plan and Cost Estimate to
confirm the overall design and obtain Town approval before
proceeding into the Design Development phase of work. If the
Town substantially, as solely determined by the Town, increases
the program and construction budget, FNI will review with the Town
the required additional fees necessary to cover the increase in
scope of work. FNI will not proceed into the Design Development
phase until the final program, cost estimates, and consultant design
fees have been approved in writing by both FNI and the Town.
5. FNI will prepare a final concept plan which will be for the Town to
use as a guide for the design development phase of the project.
Task B Deliverables:
Preliminary Design Concept Plan
Preliminary Design Cost Estimate
C. DESIGN DEVELOPMENT
Based upon approval of the Preliminary Design Concept plan from
the Town, FNI will prepare Design Development drawings for the
proposed park improvements. The Design Development drawings
will be prepared at an approximate 60% level of completion of
Construction Documents.
2. The Town will provide to FNI all front end documents, contracts,
insurance requirements, general conditions, etc. for use by FNI in
preparing the specifications and contract documents.
3. Based upon the Design Development drawings, FNI will prepare a
60% completion cost estimate for the proposed park improvements.
4. FNI will prepare a preliminary Table of Contents for the
specifications and contract documents.
5. FNI will submit the Design Development drawings, Cost Estimate
and Table of Contents for the specifications and contract
documents to the Town for review and approval.
6. The Town will forward, in writing, to FNI all review comments for the
Design Development drawings submittal. FNI will obtain these
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 21 of 35
EXHIBIT "A"
SCOPE OF SERVICES
comments and approval from the Town prior to proceeding into the
final construction documents.
Task C Deliverables:
• Design Development drawings
• Table of Contents for contract documents booklet
• Design Development Cost Estimate
D. FINAL CONSTRUCTION DOCUMENTS
1. Based upon approval from the Town for the Design Development
drawings submittal, FNI will prepare 100% final Construction
Documents for the Town to utilize in bidding the project. The
Construction Documents will be comprised of both the drawings
and the specifications and contract documents.
2. Based upon the Final Construction Documents, FNI will prepare a
final cost estimate for all the proposed park improvements.
3. FNI will submit the final Construction Documents to the Texas
Department of Licensing and Regulation (TDLR) for the State
required accessibility review. The accessibility review will include
compliance with TAS and ADA requirements. Fees associated with
this review will be included as a reimbursable expense.
Task D Deliverables:
• 100% Construction Documents
• Final Cost Estimate
• Submission of Construction Documents for TDLR review
E. BID PHASE
1. FNI will attend a pre -bid meeting with Town representatives and the
potential bidders.
2. FNI will prepare addendum(s), if required, during the bid phase.
3. FNI will assist the Town in reviewing the Contractor's bids and
providing a Bid Tabulation and a recommendation to the Town for
award of contract.
Task E Deliverables:
• Bid Tabulation
• Review of contractor's bids and letter of recommendation for award of
contract
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 22 of 35
EXHIBIT "A"
SCOPE OF SERVICES
F. CONSTRUCTION ADMINISTRATION
FNI will assist the Town by attending a pre -construction meeting.
Any other meetings during construction to evaluate completion of
work by the Contractor can be provided by FNI as an additional
service and approved by the Town in writing. The Town will be
responsible for the day-to-day administration of the construction
contract.
2. FNI will prepare a written Field Report as necessary for meetings
attended during the construction of the project.
3. FNI will process submittal and shop drawing reviews as submitted
by the Contractor during the construction process. Pay applications
will also be reviewed each month by FNI and will then be forwarded
to the Town with the appropriate recommendation.
4. FNI will assist the Town in attending one (1) final project walk-
through meeting with the Contractor and his subcontractors to
review the completion of work. FNI will provide written comments
to the Town for the preparation of a final "punch list" for work to be
completed by the Contractor.
Task F Deliverables:
• Field reports for meetings/reviews as necessary
• Processing of submittals and BFI's
• Final punch list from the final project walk-thru
G. STORM WATER POLLUTION PREVENTION PLAN (SWPPP)
In conjunction with the completion of the Final Construction
Documents, FNI will prepare a Storm Water Pollution Prevention
Plan (SWPPP) for the proposed site. Any other environmental
engineering services would be considered additional services.
IV. ASSUMPTIONS
A. The Town has designated a construction budget of approximately
$915,400.00 for the Cockrell Park improvements. Should this construction
budget increase, as solely determined by the Town, or should the Town
require a significant number of alternate bid items to be included in the
construction document package, FNI and the Town staff will re-evaluate
this scope of work and determine the basis of compensation in
accordance with revisions to the design services.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 23 of 35
EXHIBIT "A"
SCOPE OF SERVICES
B. The Town will provide as expeditiously as possible all readily available
base information, that it currently has in its possession, necessary to
complete the Scope of Services described herein. Should FNI need any
additional survey information, the Town will provide this information to FNI.
Any information required to complete this Scope of Services that cannot
be readily provided by the Town will remain the responsibility of the Town.
All such information shall be provided to FNI and any costs associated
with acquisition of information will be borne by the Town.
C. This Scope of Services does not include water permitting related to the
following agencies: U.S. Army Corps of Engineers 404 Permitting; Federal
Emergency Management Agency (FEMA) map revision preparation and
processing; Texas Commission on Environmental Quality (TCEQ) permits
or applications with exclusions.
D. It is anticipated that the park design will be prepared as one bid package.
If additional bid packages are required by the Town for phasing breakouts,
FNI will re-evaluate the scope of services to address additional fees not
covered in this scope of work.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 24 of 35
EXHIBIT "B"
COMPENSATION SCHEDULE / PROJECT BILLING / PROJECT BUDGET
Agreement by and between the Town of Prosper (Town)
and Freese and Nichols, Inc. (Consultant)
to perform Landscape Architectural and Engineering Design Services for
Cockrell Park
I. BASIS OF COMPENSATION
The cost for performing these services set forth herein is based upon an approximate
construction budget of $915,400 and will be as follows:
Topographic Survev and Plattinq
A. Topographic Survey (Lump Sum)........................................................... $3,680.00
Total Topographic Survey and Platting.........................................................
$3,680.00
Basic Design Services
A. Base Mapping and Program Development (Lump Sum) ........................
$6,512.00
B. Preliminary Design Concept Plan (Lump Sum) ......................................
$6,772.00
C. Design Development (Lump Sum) ........................................................
$20,724.00
D. Final Construction Documents (Lump Sum) .........................................
$28,133.00
E. Bid Phase (Lump Sum)..........................................................................
$4,070.00
F. Construction Administration (Lump Sum) ...............................................
$5,200.00
Total Basic Design Services........................................................................
$71,411.00
G. Storm Water Pollution Prevention Plan (SWPPP) (Lump Sum) ..............
$3,260.00
H. Reimbursable Expenses (Not -to -Exceed) ..............................................
$3,000.00
TOTAL - Topographic Survey, Basic Design Services, SWPPP, and
Reimbursable Fee (Not -to -Exceed) ..............................................
$81,351.00
Reimbursable Expenses will be additional to the Basic Design Services cost and shall
be in compliance with Exhibit D.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 25 of 35
EXHIBIT "B"
COMPENSATION SCHEDULE / PROJECT BILLING / PROJECT BUDGET
II. PROJECT SCHEDULE
Construction Documents to be 100% complete and delivered to the Town within 180
days after Notice -to -Proceed is given to FNI by the Town.
III. ADDITIONAL SERVICES
Additional Services, not included in this Scope of Services, will be negotiated with the
Town as necessary. Compensation will be based upon either a mutually agreed lump
sum fee or on an hourly basis. Items which would be considered Additional Services
could include: additional site surveying, geotechnical investigation, design of additional
program items beyond what has been identified by the Town for the Park
improvements, alternate bid items, additional meetings with Town Staff and/or
presentation to other groups, additional site visits during construction activity, etc.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 26 of 35
EXHIBIT "C"
TOWN OF PROSPER
GUIDELINES FOR COMPUTER AIDED DESIGN AND DRAFTING (CADD)
1. Files shall be submitted in DWG/DXF format.
2. Files shall be georeferenced in the State Plane, Texas North Central FIPS 4202
(feet) coordinate system, using a datum of NAD 83.
3. If a surface adjustment factor is applied to the data, any surface adjustment
factors used should be clearly documented on the drawing.
4. If submissions for the Project relate to a plat, the file submitted must match
exactly the plat that is submitted for recording.
5. The file shall contain required features for the project type as detailed below:
a. Pre-Construction/As-Built Plans and/or Record Documents:
i. Layers from Final Plat Requirements as Applicable to Project Type.
ii. Water Utility Features.
iii. Sanitary Sewer Features.
iv. Storm Sewer Features.
6. Each required feature group should be provided as a separate layer within the
file.
7. Layer names should be representative of the information contained in the layer.
8. Line work should be continuous (e.g. no dashed lines in required layers) and
complete (connecting lines should meet at corners) within the subdivision/project.
Layers outside of project/subdivision boundary may be dashed in CAD data as
required for Final Plats by Prosper's Subdivision Ordinance.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 27 of 35
EXHIBIT "D"
TOWN OF PROSPER GUIDELINES FOR DIRECT EXPENSES; GENERAL AND
ADMINISTRATIVE MARKUP; TRAVEL AND SUBSISTENCE EXPENSES
I. CONSULTANT'S RESPONSIBILITY. The Consultant shall be solely responsible
for the auditing of all direct expenses, approved markup (general and/or
administrative), and approved travel and/or subsistence charges, including those of
its subcontractors, prior to submitting to the Town for reimbursement, and
Consultant shall be responsible for the accuracy thereof. Any over -payment by the
Town for errors in submittals for reimbursement may be deducted from the
Consultant's subsequent payment(s) for services; however, this shall not be the
Town's sole and exclusive remedy for said over -payment.
II. GUIDELINES FOR DIRECT EXPENSES.
A. Local Transportation — Transportation in connection with the Project, when
such transportation is not a function of routine performance of the duties of the
Consultant in connection with the Project, and when such transportation exceeds
beyond fifty (50) miles from the Project site, shall be reimbursed at a standard
mileage rate consistent with that as issued, and periodically revised, by the
United States Internal Revenue Service (IRS). Under no circumstances shall
Town reimburse Consultant at a higher standard mileage rate or pay additional
markup on charges for local transportation. Completion of Town's Standard
Mileage Log is required for submittal of these charges for reimbursement,
including justification for each submitted expense.
Under no circumstances are charges associated with rental cars for local
transportation eligible for reimbursement by Town. Toll road subscriptions or toll
plaza receipts are not reimbursable. Consultant agrees to place these standards
in all subcontracts for work on the Project.
B. Supplies. Material. Equipment — Town shall reimburse the actual cost of other
similar direct Project -related expenses, which are duly presented in advance and
approved by Town's Project Manager in writing.
C. Commercial Reproduction — Town shall reimburse the actual cost of
reproductions, specifically limited to progress prints prepared for presentation to
Town at each phase of progress, and final Construction Documents prepared for
distribution at bidding phase, provided that the Consultant has duly obtained at
least three (3) quotations from commercial firms and has chosen the best value
for the Town. Consultant shall provide such documentation to Town for review
prior to submitting these expenses for reimbursement. Consultant agrees to
place these standards in all subcontracts for work on the Project.
D. In -House Reproduction - Consultant shall make arrangements with the Town
for prior approval of in-house reproduction rates prior to submitting these
expenses for reimbursement. Town shall provide Consultant with a standard
format for documenting these charges. Completion of the Town's reproduction
log is required as a prerequisite for payment, including the number or
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 28 of 35
EXHIBIT "D"
TOWN OF PROSPER GUIDELINES FOR DIRECT EXPENSES; GENERAL AND
ADMINISTRATIVE MARKUP; TRAVEL AND SUBSISTENCE EXPENSES
reproductions, the date, time, description, the approved standard rate, and a
justification for each submitted expense for reimbursement. Consultant agrees to
place these standards in all subcontracts for work on the Project.
E. Commercial Plottinq — Town shall reimburse the actual cost of plots, specifically
limited to final documents, provided the Consultant has duly obtained at least
three (3) quotations from commercial firms and has chosen the best value for the
Town. Consultant shall provide such documentation to Town for review prior to
submitting these expenses for reimbursement. Consultant agrees to place these
standards in all subcontracts for work on the Project.
F. In -House Plottinq — Consultant shall make arrangements with Town for prior
written approval of in-house plotting rates prior to submitting these charges for
reimbursement. Town shall provide Consultant with a standard format for
documenting these charges. Completion of the Town's reproduction log is
required as a prerequisite for payment, including the number of plots, the date,
time, description, the approved standard rate, and a justification for each
submitted charge for reimbursement.
G. Communications — Reimbursement for expenses relating to electronic
communications shall be limited to long-distance telephone or fax toll charges
specifically required in the discharge of professional responsibilities related to the
Project. Telephone service charges including office or cellular phones, WATTS,
or Metro line services or similar charges are not reimbursable.
H. Postage, Mail. and Delivery Service — Town shall reimburse the actual cost of
postage and delivery of Instruments of Service, provided the Consultant duly
considers all circumstances (including available time for assured delivery) of the
required delivery and selects the best value for the Town, which may require
comparison of delivery costs offered by three (3) or more sources or methods of
delivery, which at a minimum shall include U.S. Mail. Courier service is
acceptable only in circumstances requiring deadline -sensitive deliveries and not
for the convenience of the Consultant and/or the Consultant's employees.
Consultant agrees to place these standards in all subcontracts for work on the
Project.
Meals and Other Related Charges — Meals or any other related expenses are
not reimbursable unless incurred outside a fifty (50) mile radius of the Project,
and then only reimbursable for the actual cost subject to compliance with the
Town's currently adopted policy. Non -allowable costs include, but are not limited
to, charges for entertainment, alcoholic beverages, and gratuities.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 29 of 35
EXHIBIT "D"
TOWN OF PROSPER GUIDELINES FOR DIRECT EXPENSES; GENERAL AND
ADMINISTRATIVE MARKUP; TRAVEL AND SUBSISTENCE EXPENSES
III. GUIDELINES FOR GENERAL AND ADMINISTRATIVE MARKUP.
A. Requirement of Prior Approval — Consultant may be allowed to charge a
General and/or Administrative Markup on work completed if Consultant can
clearly define to Town specifically what costs are included in the markup
calculation. To apply General and/or Administrative Markup, Consultant must
also document to Town what costs would be considered direct costs. Town shall
issue approval in writing to allow Consultant to charge General and/or
Administrative Markup. Town reserves the right to reject any and all requests for
General and/or Administrative Markup.
IV. GUIDELINES FOR TRAVEL AND SUBSISTENCE EXPENSES.
A. Requirement of Prior Approval — Town shall reimburse the actual cost of travel
and/or subsistence expenses upon prior written approval by the Town's Project
Manager.
B. Adherence to Currently Adopted Town Travel Policv, — Reimbursements shall
be governed by the same travel policies provided for Town employees according
to current adopted policy. Prior to the event, Consultant shall request, and the
Town's Project Manager shall provide the provisions and the restrictions that
apply to out-of-town reimbursements.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 30 of 35
EXHIBIT "E"
TOWN OF PROSPER CONTRACTOR INSURANCE GUIDELINES
I. REQUIREMENT OF GENERAL LIABILITY INSURANCE —
A. Such policy shall name the Town, its officers, agents, representatives, and
employees as additional insured as to all applicable coverage with the exception
of workers compensation insurance.
A. Such policy shall require the provision of written notice to Town at least thirty (30)
days prior to cancellation, non -renewal, or material modification of any policies,
evidenced by return receipt or United States Certified Mail.
B. Such policy shall provide for a waiver of subrogation against the Town for
injuries, including death, property damage, or any other loss to the extent the
same is covered by the proceeds of the insurance.
II. INSURANCE COMPANY QUALIFICATION — All insurance companies providing
the required insurance shall be authorized to transact business in the State of
Texas, and shall have a minimum rating of "A" by A.M. Best's Key Rating Guide, or
other equivalent rating service(s).
Ill. CERTIFICATE OF INSURANCE — A Certificate of Insurance evidencing the
required insurance shall be submitted with the contractor's bid or response to
proposal. If the contract is renewed or extended by the Town a Certificate of
Insurance shall also be provided to the Town prior to the date the contract is
renewed or extended.
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 31 of 35
EXHIBIT "E"
TOWN OF PROSPER CONTRACTOR INSURANCE GUIDELINES
IV. INSURANCE CHECKLIST — "X" means that the following coverage is required for
this Agreement.
Coverage Required Limits
X 1. Worker's Compensation & ■ Statutory Limits of the State of
Employer's Liability Texas
X 2. General Liability ■ Minimum $1,000,000.00 each
occurrence;
■ Minimum $2,000,000.00 in the
aggregate.
3. XCU Coverage ■ Minimum $1,000,000.00 each
occurrence;
■ Minimum $2,000,000.00 in the
aggregate.
X 4. Professional Liability ■ Minimum $ 1,000,000.00 each
claim;
■ Minimum $ 2,000,000.00 in the
aggregate.
5. Umbrella Coverage or An amount of $ 2,000,000.00.
Excess Liability Coverage
X 6. Town named as additional insured on General Liability Policy. This
coverage is primary to all other coverage the Town may possess.
X 7. General Liability Insurance provides for a Waiver of Subrogation against
the Town for injuries, including death, property damage, or any other loss
to the extent that same is covered by the proceeds of the insurance.
X 8. Thirty (30) days notice of cancellation, non -renewal, or material change
required. The words "endeavor to" and "but failure" (to end of sentence)
are to be eliminated from the Notice of Cancellation provision on standard
ACORD certificates.
X 9. Insurance company has a minimum rating of "A" by A.M. Best's Key
Rating Guide, or other equivalent rating service(s).
X 10. The Certificate of Insurance must state the project title and bid number.
11. Other Insurance Requirements (State Below):
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 32 of 35
EXHIBIT "F"
AFFIDAVIT
THE STATE OF TEXAS §
THE COUNTY OFc\ j §
I, (1,10(J _0 Lk— 1�, a member of the Consultant team, make this
affidat and hereby on oath state the following:
I, and/or a person or persons related to me, have the following interest in a business
entity that would be affected by the work or decision on the Project (Check all that
apply):
Ownership of 10% or more of the voting shares of the business entity.
Ownership of Twenty Five Thousand and 00/100 Dollars ($25,000.00) or
more of the fair market value of the business entity.
Funds received from the business entity exceed ten percent (10%) of my
income for the previous year.
Real property is involved, and I have an equitable or legal ownership with
a fair market value of at least Twenty Five Thousand and 00/100 Dollars
($25,000.00).
A relative of mine has substantial interest in the business entity or property
that would be affected by my business decision of the public body of which
I am a member.
Other:
None of the Above.
Upon filing this affidavit with the Town of Prosper, Texas, I further affirm that no relative
of mine, in the first degree by consanguinity or affinity, as defined in Chapter 573 of the
Texas Government Code, is a member of a public body which took action on the
agreement.
Signed this �� n day of V .2013.
Signature of Official / Title
OREDIE, M��, E, t�eI � �TZsigned authority, this day personally appeared
IA
-
and — iIR� 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 Zv4ay of �
2013.
CHERYLC LL j ✓
Notary Public i nd for : State f T xa
} ` w�yo�� My commission expiresy�
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 33 of 35
EXHIBIT "G"
CONFLICT OF INTEREST QUESTIONNAIRE, FORM CIQ
CONFLICT OF INTEREST QUESTIONNAIRE FORM City
For vendor or other person doing business with local governmental entity
This ClUe. tionnaire Is beinq filed it, accordance with chapter 176 of the Local OFFICE USEONLY
(� overnnlert Coce by a person doing bI.iSIl1eSS With the governmental entity. �at� BLP ve
By la:v this dUest€or.nalre must be filed with the records a .nimistrator of the
Ideal government rot later than the 7th'bLISIness day a`ter the date the person
becomes aware of fact" that recttlire the statement fo be filer'. 1,Pe Section
'176 606, Local Govern€-ient Code
A person commits an offense if the person violates Section '176.00 , Local
Government Code. An offense under this section is a Class C misdemeanor.
J Name of person doing business with local governmental entity.
01
i \ v Check this box if you are filing an update to a previously flied questionnaire.
(—he law equires that vo i r e ai .ipdatec com.le:ed questionna.•e w t7 tqe appro; riate filing autho-€ty *10. laser than
Sep:ernbe, 1 of the year for w i ch a-) acavity described in Section 1713.006(a), Local Government Code, 5 pe9c1mg an,.,
not laser :han the 7t i business day after the c ate the origna Iry f ed quest onm�re oecorries ricomplete or naccurate.;
J Describe each affiliation or business relationship with an employee or contractor of the local governmental entity who makes
recommendations to a local government officer of the local governmental entity with respect to expenditure of money.
0It�
4
Describe each affiliation or business relationship with a person who is a local government officer and who appoints or
employs a local government officer of the local governmental entity that is the subject of this questionnaire.
u 1A
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 34 of 35
EXHIBIT "G"
CONFLICT OF INTEREST QUESTIONNAIRE, FORM CIO
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doing business with local governmental entity Page 2
J Name of local government officer with whom filer has affiiitation or business relationship. (Complete this section only if the
answer to A, B, or C is YE&)
Tn s section.:teri ; including subpa^s A B C # D. mus- ce comw.Ie:e+d for each c'ficer to whom the 'iler nas afil at on o•
business relationsh p Attacn additional pages to to s Fomi CI! as necessary
A. Is Nie local government o1cer narneC in this section rece vrng or li,ely to receive taxable income `rom the `filer o` the
cuestionnaire?
Yes [ZfVo
E s the `filer of -he o.iestionnaire eceiving or IiKe y to rece ve taxable income `roan or at the d ect.on of the local gcvenement
o`ticer named in this section AND the taxac e income is not from the local govermnental entity`'
ElYes UNo
C. Is the `der of this oaes:ionnaire affil€a:ed with a corporation or c-her business ennty that the oca goverment officer serves
as an of :ce, o• d ec-or, or holds a!i ov.nersnia of 1 a percent or more'
DYes E:ZfNo
D. Desc,ioe each affilia-.on or business re.at onsh p.
J Describe any other affiliation or business relationship that might cause a conflict of interest.
J
`~ignatxe of perscn dong, bcs news with the ga;ernmental entr Date
Town of Prosper, Texas — Cockrell Park Professional Services Agreement Page 35 of 35