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13-15 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. 13 -15 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 AN ENGINEERING DESIGN SERVICES AGREEMENT RELATED TO THE OLD TOWN DRAINAGE STUDY, BETWEEN WIER & ASSOCIATES, INC., 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, an Engineering Design Services Agreement related to the Old Town Drainage Study, between Wier & Associates, Inc., and the Town of Prosper, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 26th of February, 2013. 'L — Ray Smith, ayor ATTEST TO: B A N _ mss'„ !'y' iia rvF£•T d� ® ®aoP�saaaa��� AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS (TOWN) AND WIER & ASSOCIATES, INC. (CONSULTANT) FOR ENGINEERING & SURVEYING DESIGN SERVICES Made as of the' -day of / I� . r .l - 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: WIER & ASSOCIATES, INC. 701 Highlander Boulevard Suite 300 Arlington, Texas, 76015 -4340 Telephone: 817- 925 -0802 Facsimile: 817- 467 -7713 for the following Project: OLD TOWN DRAINAGE STUDY 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 Wier & Associates, 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 prepare a drainage study and limited construction documents for a the Old Town Drainage Study, hereinafter referred to as "Project;" and WHEREAS, the Consultant desires to render such professional engineering services for the Town upon the terms and conditions provided herein. Town of Prosper, Texas — Professional Services Agreement Page 1 of 33 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 tl Employment 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 Change 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 January 1, 2014. Town of Prosper, Texas — Professional Services Agreement Page 2 of 33 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 Project 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 Project 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 Basis, for an amount not to exceed Sixty Five Thousand Five Hundred Dollars and 00/100 Dollars ($65,500.00), ("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 Final Study Report, 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 Three thousand two hundred and seventy five dollars and 00/100 Dollars ($3,275.00). 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 — Professional Services Agreement Page 3 of 33 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 — Professional Services Agreement Page 4 of 33 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 TIDLR'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 Project 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 following TDLR Project 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 — Professional Services Agreement Page 5 of 33 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 provisions of contract no effective since project is a study and not a design contract 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 I 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: 3.31 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." 3.3.4 Photography, professional massing models which are not provided for or contemplated in the Scope of Services as described in Exhibit "A." Town of Prosper, Texas — Professional Services Agreement Page 6 of 33 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 Ulys Lane P.E., R.P.L.S. Principal & Project Manager $185.00 Gregg Madsen, R.P.L.S. Principal & Project Surveyor $185.00 Philip Graham, P.E. Associate & Senior Project Man. $150.00 Randall Eardly, P.E. Team Leader $140.00 Tim Wallace, P.E. Registered P.E. or R.P.L.S. $110.00 Michael Mears, P.E. Registered P.E. or R.P.L.S $110.00 John Anderson Surveyor in Training $101.00 Danny Chavez CADD Technician $95.00 Laura Radford CADD Technician $95.00 Matthew Jahn Junior CADD Technician $85.00 Chris Henderson Admin/Support $60.00 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 Timing of Payment — 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. 3.6 Disputed Payment 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 Town of Prosper, Texas — Professional Services Agreement Page 7 of 33 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 Pay — 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 (10th) calendar day after written notice of suspension was provided to Town, in accordance with Chapter 2251, Subchapter "ID" ("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 Project 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 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. Town of Prosper, Texas — Professional Services Agreement Page 8 of 33 ARTICLE 4 OWNERSHIP OF DOCUMENTS 4.1 Documents Property 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 Subject 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 Liability 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 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 Town of Prosper, Texas — Professional Services Agreement Page 9 of 33 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 Liability 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 Requiring Umbrella Coverage or Excess Liability Coverage — 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 Certified Mail. Consultant shall furnish Town with certificates evidencing such coverage prior to commencing work on the Project. Town of Prosper, Texas — Professional Services Agreement Page 10 of 33 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 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, Town of Prosper, Texas — Professional Services Agreement Page 11 of 33 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 PERFORMANCE OF THIS AGREEMENT AND /OR ARISING OUT OF GOODS AND /OR SERVICES PROVIDED BY CONSULTANT PURSUANT TO THIS AGREEMENT, Town of Prosper, Texas — Professional Services Agreement Page 12 of 33 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'S FEES AND EXPENSES, TO CONSULTANT WITHIN SIXTY (60) DAYS OF THE DATE OF THE JUDGMENT (THE "REIMBURSEMENT ALLOCATION "). Town of Prosper, Texas — Professional Services Agreement Page 13 of 33 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: Ulys Lane III Vice President Wier & Associates, Inc. 701 Highlander Boulevard Suite 300 Arlington, Texas 76015 -4340 Town of Prosper, Texas — Professional Services Agreement Page 14 of 33 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 Agreement — 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 Assignment and Subletting — 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 — Professional Services Agreement Page 15 of 33 12.3 Successors and Assigns — 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 Severability — 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 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 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 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. 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 — Professional Services Agreement Page 16 of 33 12.11 Soverei-qn Immunity — 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 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. 12.14 No Third Party 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 Indemnity — 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 day as reflected by the signatures below. Effective Date: • go Amon 09 Abernathy, Roeder, Boyd, & Joplin, P.C. CONSULTANT Wier& Associates, Inc. By: Ulys Lane III Title: Vice President rown of Prosper, Texas — Professional Services Agreement Page 17 of 33 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 CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS _Isf- DAY OF P 2013. 1117 , _°--- TARY PUBLIC IWAND 'FOR THE STATE OF TEXAS I AMY PIUKANA M commission expires: My Commission Expires January 8, 2017 STATE OF TEXAS: COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED s Lo- te- M , 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 CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS _�,7�'- DAY OF 12013. NOTARY PUBLIC IN AND FO� TH�ST� TE OF TEXAS My commission expires: �a CA Lo ERIN MERKEL a `. °1 Notary Public, State of Texas My Commission Expires July 22, 2016 Town of Prosper, Texas — Professional Services Agreement Page 18 of 33 EXHIBIT "A" SCOPE OF SERVICES Agreement by and between the Town of Prosper, Texas (Town) and Wier & Associates, Inc. (Consultant) to perform Engineering Services for Old Town Drainage Study I. PROJECT DESCRIPTION. Drainage study of existing old town drainage and watersheds. Limits of study generally from N. Craig Street on the east, W. First Street on the south, BN &SF Railroad on the west and Eighth Street on the north. The project consists of the collection of existing records and conditions for evaluation of current conditions, future land use /zoning and other information to allow a fully developed study of the watersheds and provide for future re- development of the Old Town area in compliance with an overall watershed management plan. Base mapping of watersheds will be made utilizing GIS aerial and two foot interval contour mapping provided by the Town from the North Central Texas Council of Governments. The base mapping will be augmented by limited infield field surveying. Detailed topo surveys of ditches, culverts and driveway crossing will be obtained at the northwest corner of E. Sixth Street and S. Church Street where a design of enclosed drainage systems will be made for existing storm water bypass flows occurring in the north ditch of E. Sixth Street. Preliminary studies of drainage divides and storm runoff amounts will be complied indicating drainage computation charts for the fully developed storm runoff for the 100yr, 25yr, 5yr and 2yr storm events referenced at key design points along the watershed conveyance routes. Conceptual locations for potential Detention Ponds and ideas of locations for major drainage improvements will be compiled in the conceptual Phase including estimated detention volumes utilizing the Modified Rational Method. Conceptual plans shall be provided to Town staff for review. Once reviews are complete Engineer will meet with Town staff to discuss review comments, additional information needed, updates on available detention pond sites and other helpful comments /support for completion of the study. At the conceptual, preliminary and final stages Town staff may request a formal or work meeting with the Town Council to gain direction and input on important elements of the Study from the elected Town leadership. A preliminary submittal phase followed by a final submittal and report phases are anticipated for this project assignment. Once the report is finalized and completed along with exhibits, charts, work maps Engineers shall seal and the final documents. Digital .pdf copies of the report will be provided to the Town for easy distribution to property owners, developers and engineers as the Old Town is redeveloped. II. TASK SUMMARY, BASIC SERVICES. A. Task One, Research & Surveying — Plan research and infield review of existing conditions with limited infield surveying. B. Task Two, Concept Phase — Concept Plans including work maps, drainage computations, charts and approximate drainage improvements Town of Prosper, Texas — Professional Services Agreement Page 19 of 33 EXHIBIT "A" SCOPE OF SERVICES C. Task Three, Preliminary Drainage Study Phase — Preliminary drainage study and preliminary report for second review of study. D. Task Four, Final Drainage Study Phase — Final drainage study and report along with drainage area mapping, drainage computations and future anticipated improvements. E. Task Five, Presentations & Meetings Phase — Meetings with Town Council and or City manager as directed by Town Engineering staff. III. TASK SUMMARY, SPECIAL SERVICES. F. Task Six — None known at this time. IV. ITEMS NOT INCLUDED IN THE EXISTING SCOPE OF SERVICES. A. Additional Services not included in the existing Scope of Services — Town and Consultant agree that the following services are beyond the Scope of Services described in the tasks above. However, Consultant can provide these services, if needed, upon the Town's written request. Any additional amounts paid to the Consultant 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. These Additional Services include the following: V. DELIVERABLES. A. Required Deliverables — At the completion of Tasks 2, 3 & 4, Consultant shall ensure the delivery of the following products to the Town: 1. Deliverable Task #2 — Three Hard Copies and Digital Files of Concept Phase Submittal Items. 2. Deliverable Task #3 — Three Hard Copies and Digital Files of Preliminary Phase Submittal Items. 3. Deliverable Task #4 — Five Bound Reports and Complete Exhibits Package of Final Report and Digital Copy. Town of Prosper, Texas — Professional Services Agreement Page 20 of 33 EXHIBIT "A" SCOPE OF SERVICES VI. PROJECT LABOR ALLOCATION. Task Subtask Labor Hours TASK 1 Research & Surveying Phase 150 hours TASK 2 Concept Phase 170 hours TASK 3 Preliminary Drainage Study Phase 125 hours TASK 4 Final Drainage Study Phase 90 hours TASK 5 Presentations & Meetings Phase 20 hours GRAND TOTAL 535 hours VII.ATTACHMENTS (IF APPLICABLE). Town of Prosper, Texas — Professional Services Agreement Page 21 of 33 EXHIBIT "B" COMPENSATION SCHEDULE / PROJECT BILLING / PROJECT BUDGET Agreement by and between the Town of Prosper (Town) and Wier & Associates, Inc. (Consultant) to perform Engineering Services for Old Town Drainage Study 1. COMPENSATION SCHEDULE t PROJECT BILLING SUMMARY. MONTH, DATE, YEAR DOLLAR AMOUNT TASK COMPLETED March 1, 2013 -- Town executes Agreement and Issues Notice to Proceed to Consultant. April 1, 2013 -- Consultant's receipt of fully executed Agreement. _ June 1, 2013 $18,000.00 Task One, Research & Surveying Phase (Task Completed and all task - related deliverables completed as stated in Exhibit "A" and accepted by the Town). July 15, 2013 $ 20,150.00 Task Two, Concept Phase (Task Completed and all task - related deliverables completed as stated in Exhibit "A" and accepted by the Town). September 1, 2013 $ 15,150.00 Task Three, Preliminary Drainage Study Phase (Task Completed and all task - related deliverables completed as stated in Exhibit "A" and accepted by the Town). November 1, 2013 $ 10,200.00 Task Four, Final Drainage Study Phase (Task Completed and all task - related deliverables completed as stated in Exhibit "A" and accepted by the Town). _ December 1, 2013 $ 2,000.00 Task Five, Presentations & Meetings Phase (Task Completed and all task - related deliverables completed as stated in Exhibit "A" and accepted by the Town). TOTAL CONSULTANT'S $ 65,500.00 FEE (RIOT - -TO- EXCEED) Town of Prosper, Texas — Professional Services Agreement Page 22 of 33 EXHIBIT "B" COMPENSATION SCHEDULE / PROJECT BILLING / PROJECT BUDGET II. PROJECT BUDGET SUMMARY. A. Basic Services. 1. Description of Basic Services. a. Research & Surveying Phase. $ 18,000.00 b. Concept Submittal Phase. $ 20,000.00 c. Preliminary Drainage Study Phase. $ 15,000.00 d. Final Drainage Study Phase $ 10,000.00 Notice of Substantial Compliance. e. Presentations & Meetings Phase. $ 2,000.00 2. Total Basic Services (Not -To- Exceed) $ 65, 000.00 B. Special Services. 1. Description of Special Services. 2. Total Special Services (Not -To- Exceed) $ 000, 000.00 C. Direct Expenses. 1. Description of Direct Expenses. (Add items applicable to this Contract). a. Mileage Reimbursement. $ 0,000.00 b. Commercial Reproduction. $ 0,000.00 c. In -House Reproduction. $ 300.00 d. Commercial Plotting. $ 0,000.00 e. In -House Plotting. $ 100.00 f. Communications. $ 0,000.00 g. Postage, Mail, and Delivery Service. $ 100.00 2. Total Direct Expenses (Not -To- Exceed) $ 500.00 Town of Prosper, Texas — Professional Services Agreement Page 23 of 33 EXHIBIT "B" COMPENSATION SCHEDULE / PROJECT BILLING / PROJECT BUDGET G. General and/or Administrative Markup. (If this Section is Applicable to Contract) 1. Description of Markup. $ 0,000.00 2. Total Approved Markup (Not -To- Exceed) $ 0,000.0 H. Travel and /or Subsistence Expenses. (If this Section is Applicable to Contract) 1. Description of Travel Expenses. $ 00,000.00 2. Description of Subsistence Expenses. $ 0,000.00 3. Total Approved Travel and Subsistence Expenses $ 00, 000.00 (Not -To- Exceed) F. Protect Budget, Grand Total (Not -To- Exceed) $ 65,500.00 Town of Prosper, Texas — Professional Services Agreement Page 24 of 33 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 — Professional Services Agreement Page 25 of 33 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 — Professional Services Agreement Page 26 of 33 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 Plotting — 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 Plotting — 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 — Professional Services Agreement Page 27 of 33 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 Policy — 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 — Professional Services Agreement Page 28 of 33 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. B. 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. C. 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). III. 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 — Professional Services Agreement Page 29 of 33 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 — Professional Services Agreement Page 30 of 33 EXHIBIT "F" AFFIDAVIT THE STATE OF TEXAS § THE COUNTY OF_f,��,,�� 4- § 1, � 11 �4LL=a-4�) I � , a member of the Consultant team, make this affidavit aid 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: _X 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 day of 2,-IS AOc,�013. GG{ Signature of Official / Title BEFORE ME, the undersigned authority, this day personally appeared y\ S4, e, lu and on oath stated that the facts hereinabove stated are true o the best of his'/ her knowledge or belief. Sworn to and subscribed before me on this 170--day of C-e �yo,✓� 2013. ERIN MERKEL �= My Commission Expires Notary Notary Public, f Texas N Public in and for the State of Texas �; ;;* July 22, 2016 My commission expires: Town of Prosper, Texas — Professional Services Agreement Page 31 of 33 EXHIBIT "G" CONFLICT OF INTEREST QUESTIONNAIRE, FORM CIQ CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO For vendor or other person doing business with focal governmental entity This questionnaire is being filed in accordance with chapter 176 of the Local OFFICE USE ONLY Government Code by a person doing business with the governmental entity_ Date Recewed By law this questionnaire must be filed with the records administrator of the local government not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code_ A person commits an offense if the person violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person doing business with total governmental entity. As 5 e CA o-�e-5 Ac. - �9 �� L.a4'-- �l l Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than September t of the year for which an activity described in Section 176.006(a), Local Government Code, is pending and not later than the 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 2 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. De scribe 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. N//t\- r//t\- Amended 01,11 Nf! Town of Prosper, Texas — Professional Services Agreement Page 32 of 33 EXHIBIT 66GY1 CONFLICT OF INTEREST QUESTIONNAIRE, FORM CIQ CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity Page 2 Name of local government officer with whom filer has affilltation or business relationship. (Complete this section only if the answer to A, B, or C Is YES.) This section, item 5 including subparts A, B. C & D, must be completed for each officer with whom the filer has affiliation or business relationship. Attach additional pages to this Form CIO as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income from the filer of the questionnaire? FO-IMEWMA-Z 6- Is the filer of the questionnaire receiving or likely to receive taxable income from or at the direction of the local government officer named in this section AND the taxable income is not from the local governmental entity? MEN "10 C. Is the filer of this questionnaire affiliated with a corporation or other business entity that the local government officer serves as an officer or director, or holds an ownership of 10 percent of more? WENSFE-1-1a D. Describe each affiliation or business relationship. Describe any other affiliation or business relationship that might cause a conflict of interest. �4cv\-e- Sguture of person doing business with the governmerttat entity Date Ameoded O I I I W200e Town of Prosper, Texas — Professional Services Agreement Page 33 of 33