13-16 - RTOWN OF PROSPER, TEXAS
RESOLUTION NO. 13-16
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
FRONTIER BOULEVARD BN&SF RR CROSSING STUDIES,
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 Frontier Boulevard BN&SF RR
Crossing Studies, 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.
Ray Smith, M yor
ATTEST TO:
vz
Amy. Piukalia
Town `Seci%tary
f.
AGREEMENT
BETWEEN
THE TOWN OF PROSPER, TEXAS (TOWN)
AND
WIER & ASSOCIATES, INC. (CONSULTANT)
FOR
ENGINEERING
DESIGN SERVICES
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Made as of theme_ day of f ` t' {.k )_9 in the year Two Thousand Thirteen:
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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 Blvd., Suite 300
Arlington, Texas 76015
Telephone: (817) 467-7700
Facsimile: (817) 467-7713
for the following Project: Frontier Boulevard BN&SF RR Crossing Studies
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
& Associate, 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 exhibits and preliminary alignment documents related to feasibility
studies for an At -Grade versus Elevated Railroad Crossing of Frontier Boulevard at the
BN&SF Railroad. hereinafter referred to as "Project;" and
Town of Prosper, Texas — Professional Services Agreement Page 1 of 32
WHEREAS, the Consultant desires to render such professional engineering
services for the Town upon the terms and conditions provided herein.
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS:
That for and in consideration of the covenants contained herein, and for the mutual
benefits to be obtained hereby, the 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 Chance 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 June
1, 2013.
Town of Prosper, Texas — Professional Services Agreement Page 2 of 32
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 Manaqer — 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 Hourly Services
and Material Not to Exceed Basics, for an amount not to exceed services and
materials Dollar Amount of Nineteen Thousand One Hundred and 00/100 Dollars
($19,100.00), ("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, — Contract is not a design contract
and Record Documents do not apply to this agreement
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
Town of Prosper, Texas — Professional Services Agreement Page 3 of 32
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 — Not
Applicable to this Agreement that does not include design services.
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
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 — Not
Applicable not a design project. 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.
Town of Prosper, Texas — Professional Services Agreement Page 4 of 32
3.1.4.2 Completion of Reqistration 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
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 requirements
do not apply to this contract which is not a design contract.
Town of Prosper, Texas — Professional Services Agreement Page 5 of 32
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."
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.
Town of Prosper, Texas — Professional Services Agreement Page 6 of 32
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 Eardley, 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 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.
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
Town of Prosper, Texas — Professional Services Agreement Page 7 of 32
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 (10t") 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
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
Town of Prosper, Texas — Professional Services Agreement Page 8 of 32
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 Reaardinq 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
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.
Town of Prosper, Texas — Professional Services Agreement Page 9 of 32
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 Requiring Umbrella Coverage or Excess Liability 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
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.
Town of Prosper, Texas — Professional Services Agreement Page 10 of 32
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,
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,
Town of Prosper, Texas — Professional Services Agreement Page 11 of 32
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,
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,
Town of Prosper, Texas — Professional Services Agreement Page 12 of 32
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").
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
Town of Prosper, Texas — Professional Services Agreement Page 13 of 32
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
Principal, Vice President
Wier & Associates, Inc.
701 Highlander Blvd., Suite 300
Arlington, Texas 76015
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.
Town of Prosper, Texas — Professional Services Agreement Page 14 of 32
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 Assignment 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.
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.
Town of Prosper, Texas — Professional Services Agreement Page 15 of 32
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.
12.11 Sovereign Immunitii, — 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 Draftinq 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.
Town of Prosper, Texas — Professional Services Agreement Page 16 of 32
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 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: Cal -') (�'7 /` �a
TOWN
Town of Prosper, Texas
By: Ker
arlan deffer
Title: Town M
APPROVED AS TO FORM:
Abernathy, Roeder, Boyd, & Joplin, P.C.
CONSULTANT
Wier & Associates, Inc.
By:
Ulys Lane III
Title: Principal, Vice President
Town of Prosper, Texas — Professional Services Agreement Page 17 of 32
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
DAY OF
2013.
NOTARY PUBLIC IN AND KO�THE STATE OF TEXAS
" commission expires:
AMY PIUKARA
My Commission Expires
w rc
,.y January a, 2017
STATE OF TEXAS:
COUNTY OF T�ul1"c� �
BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED
\ )� LAS L-&LNA'_ \ � � , 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 ��✓4t_ DAY OF
✓, 2013.
l
NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS
My commission expires: - i 111 In
'
o"ar►ui'. ERIN MERKEL
iF; Notary Public, State of Texas
zy� My Commission Expires
�•',',�;o��;� July 22, 2016
Town of Prosper, Texas — Professional Services Agreement Page 18 of 32
EXHIBIT "A"
SCOPE OF SERVICES
Agreement by and between the Town of Prosper, Texas (Town)
and Wier & Associates, Inc. (Consultant)
to perform Frontier Boulevard BN&SF RR Crossing Studies
I. PROJECT DESCRIPTION.
Alignment options and feasibility studies of roadways in area of BN&SF RR
Crossing. References to staff and actions by Wier & Associates, Inc. staff is
referred herein as "Engineer". Scope of services are described below:
SCOPE OF SERVICES
The project consists of preparation of aerial and contour mapping utilizing NCTCOG
GIS most recent mapping as a base and provided by the Town of Prosper.
Evaluating local roadways in the area of the BN&SF RR crossing. Recommending
options to an at -grade railroad crossing. Evaluation of conditions in the area that
support an elevated crossing. Coordination with City staff to prepare exhibits and
information for a meeting with the City of Celina. Assist the Town in meetings with
the City of Celina to coordinate a solution for a safe roadway network in the area of
the BN&SF railroad crossing. Frontier Boulevard is on the common City limits line
between the two municipalities
II. TASK SUMMARY, BASIC SERVICES.
A. Task One, Base Map Preparation — Obtain and compile base map from
NCTCOG aerial GIS mapping. Add properties and information in area to
demonstrate conditions affecting roadway alignment options.
B. Task Two, Concept Coordination— Prepare Concept of Roadway alignments
an on Base Map and coordinate with Transportation Engineer and Town staff to
pick options for presentation to City of Celina staff. Includes meeting with Town
staff at City of Prosper.
C. Task Three, Preliminary Aliqnment Plans — Revise Concept plan to a
Preliminary Alignment drawing based on meeting with Town of Celina staff.
Prepare Preliminary Alignment alternate concepts and plots for Meeting with City
of Celina.
D. Task Four, Meetinq with Citv of Celina — Attend meeting with City of Celina
and Town of Prosper staff to discuss alignment options. Final Alignment Exhibit
Plan.
III. TASK SUMMARY, SPECIAL SERVICES.
Traffic & Transportation Consultant Lee Engineering.
Town of Prosper, Texas — Professional Services Agreement Page 19 of 32
EXHIBIT "A"
SCOPE OF SERVICES
IV. ITEMS NOT INCLUDED IN THE EXISTING SCOPE OF SERVICES.
A. Additional Services not included in the existing Scone 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 — Two Copies of Conceptual Alignment Plans Three
Hard copy sets of Concept Plans for review.
2. Deliverable Task #3 — Four Copies of Preliminary Alignment
3. Deliverable Task #4 — Digital pdf copy of Selected Alignment Plan.
VI. PROJECT LABOR ALLOCATION.
Task Subtask Labor Hours
TASK 9 Compile Base Map and Preliminary Studies 20 hours
TASK 2
TASK 3
TASK 4
GRAND TOTAL
Concept Plans and Meet with Town Staff 30 hours
Preliminary Plans Preparation 25 hours
Final Alignment Exhibit Plan and Meet with Celina 15 hours
VII.ATTACHMENTS (IF APPLICABLE).
90 hrs
Town of Prosper, Texas — Professional Services Agreement Page 20 of 32
EXHIBIT "B"
COMPENSATION SCHEDULE / PROJECT BILLING / PROJECT BUDGET
Agreement by and between the Town of Prosper (Town)
and Wier & Associates, Inc. (Consultant)
to perform Frontier Boulevard BN&SF RR Crossing Studies
I. COMPENSATION SCHEDULE / PROJECT BILLING SUMMARY.
MONTH, DATE, YEAR
DOLLAR AMOUNT
TASK COMPLETED
March 1, 2013
--
Town executes Agreement and
Issues Notice to Proceed to
Consultant.
March 10, 2013
_
--
Consultant's receipt of fully
executed Agreement.
April 1, 2013
$ 3,000.00
Task One, Base Map (Task
Completed and all task -related
deliverables completed as
stated in Exhibit "A" and
accepted by the Town).
April 10, 2012
$ 6,050.00
Task Two, Concept Plans
(Task Completed and all task -
related deliverables completed
as stated in Exhibit "A" and
accepted by the Town).
April 20, 2013
$ 5050.00
Task Three, Preliminary
Alignments and meeting with
Town staff (Task Completed
and all task -related deliverables
completed as stated in Exhibit
"A" and accepted by the Town).
April 25, 2013
$ 5,000.00
Task Four, Meet with Town of
Celina & Final Plan.
TOTAL CONSULTANT'S
$ 19,100.00
FEE (NOT -TO -EXCEED)
II. PROJECT BUDGET SUMMARY.
A. Basic Services.
1. Description of Basic Services.
a. Base Map and Preliminary.
$1,500.00
Town of Prosper, Texas — Professional Services Agreement Page 21 of 32
EXHIBIT "B"
COMPENSATION SCHEDULE / PROJECT BILLING 1 PROJECT BUDGET
b. Concept Phase. $ 3,000.00
c. Preliminary Alignment & Meet with Town staff. $ 3,000.00
d. Meeting with City of Celina & Finalize Alignments. $ 1,500.00
2. Total Basic Services (Not -To -Exceed) $ 9,000.00
B. Special Services.
1. Traffic & Transportation Consultant Lee Engineering. $ 9,600.00
2. Total Special Services (Not -To -Exceed) $ 9,600.00
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
D. 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) $ 0,000.00
Town of Prosper, Texas — Professional Services Agreement Page 22 of 32
EXHIBIT "B"
COMPENSATION SCHEDULE / PROJECT BILLING / PROJECT BUDGET
E. 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. Proiect Budqet, Grand Total (Not -To -Exceed) $ 19.100.00
Town of Prosper, Texas — Professional Services Agreement Page 23 of 32
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.
J. 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 24 of 32
EXHIBIT "D"
TOWN OF PROSPER GUIDELINES FOR DIRECT EXPENSES; GENERAL AND
ADMINISTRATIVE MARKUP; TRAVEL AND SUBSISTENCE EXPENSES
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 25 of 32
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 Charqes — 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 26 of 32
EXHIBIT "D"
TOWN OF PROSPER GUIDELINES FOR DIRECT EXPENSES; GENERAL AND
ADMINISTRATIVE MARKUP; TRAVEL AND SUBSISTENCE EXPENSES
111. 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 — Professional Services Agreement Page 27 of 32
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 28 of 32
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 29 of 32
EXHIBIT "F"
AFFIDAVIT
THE STATE OF TEXAS §
THE COUNTY OF
I, � � ; L_.r; tL_ j I � , a member of the Consultant team, make this
affidavit and�ereby 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 day of , 2013.
CC
Signature of Official / Title '
BEFORE ME, the undersigned authority, this day personally appeared
U l s I �_ 11 ( and on oath stated that the facts hereinabove stated
are trux the best of his / her knowledge or belief.
Sworn to and subscribed before me on this \4)� day of
2013.
ERIN MERKEL
a`e+►�%', State of Texas /�
°�`�'' �`'S Notary Public. ion Expires / `�A n
3:
My Commission j„ ly 22.2p16 .I Notary Public in and for -the State of Texas
.,„,;,„.•a My commission expires:
Town of Prosper, Texas — Professional Services Agreement Page 30 of 32
EXHIBIT "G"
CONFLICT OF INTEREST QUESTIONNAIRE, FORM CIQ
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor or other person doing business with focal governmental entity
This questionnaire is being filed in accordance with chapter 176 of the Local
Government Code by a person doing business with the governmental entity.
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_
J Name of person doing business with local governmental entity.
a
❑ Check this box if you are Fling an update to a previously filed questionnaire.
FORM CIO
OFFICE USE ONLY
Date Recewed
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than
September i 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.)
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.
4
Describe each affiliation or business relationship with a person who is a focal government officer and who appoints or
employs a local government officer of the local governmental entity that is the subject of this questionnaire.
l
j// },
Amended 01113=ile'
Town of Prosper, Texas — Professional Services Agreement Page 31 of 32
EXHIBIT "G"
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
J Name of local government officer with whom filer has affilitation or business relationship. (Complete this section only if the
answer to A, B. or C is YES.)
This section. item 5 including subparts A, 6. C & D, must be completed for each officer with whom the tiler has affiliation or
business relationship Attach additional pages to this Form CIQ 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?
Yes ?1*-4-o
B. 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?
17 Yes I Vo
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 or more?
71 Yes I ./ No
D. Describe each affiliation or business relationship.
J Describe any other affiliation or business relationship that might cause a conflict of interest.
J
Signature of person doing business with the governmental entity Hate
Arne*,ded 0 1 J 131230E
Town of Prosper, Texas — Professional Services Agreement Page 32 of 32