07-070 - RTOWN OF PROSPER, TEXAS
RESOLUTION NO. 07-070
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 SERVICES AGREEMENT FOR THE PROSPER TRAIL
CULVERT EXTENSION & DRAINAGE CHANNEL IMPROVEMENTS,
BETWEEN DOWDEY, ANDERSON & 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 Services
Agreement for the Prosper Trail Culvert Extension & Drainage Channel Improvements between
Dowdey, Anderson & Associates, Inc., and the Town of Prosper, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 14th day of August, 2007.
Charles Niswanger, Mayor
•
Town Secretary
AGREEMENT
BETWEEN
THE TOWN OF PROSPER, TEXAS (TOWN)
AND
DOWDEY, ANDERSON & ASSOCIATES, INC.
(CONSULTANT)
FOR
ENGINEERING
SERVICES
AGREEMENT
made as of the��day of in the Year Two Thousand and -2 (W- ;
BETWEEN the Town:
The Town of Prosper, Texas
P.O. Box 307
113 W Broadway
Prosper, Texas 75078
telephone 972-346-2640
facsimile 972-347-2111
and the Consultant: Dowdey, Anderson & Associates, Inc.
5225 Village Creek Drive, Ste 200
Plano, Texas 75093
telephone 972-931-0694
facsimile 972-931-9538
for the following Project: Prosper Trail Culvert Extension & Drainage
Channel Improvements
The Town and the Consultant agree as set forth below.
THIS AGREEMENT is made and entered by and between the Town of Prosper,
Texas, hereinafter referred to as "Town", and Dowdey, Anderson &
Associates, Inc., hereinafter referred to as "Consultant", to be effective from and
after the date as provided herein the "Agreement".
Design Services Agreement
Page 1 of 14
WHEREAS, the Town desires to engage the services of the Consultant to
prepare Construction Documents for a culvert extension in Prosper Trail and
drainage channel improvements in the Trails of Prosper subdivision in the Town,
hereinafter referred to as the "Project"; and
WHEREAS, the Consultant desires to render such 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 parities hereto agree as follows:
ARTICLE 1
CONSULTANT'S SERVICES
1.1 Employment of the Consultant - The Town hereby agrees to retain the
Consultant to perform professional services in connection with the Project.
Consultant agrees to perform such services in accordance with the terms
and conditions of this Agreement.
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.
1.3 Schedule of Work - The Consultant agrees to commence work
immediately upon execution of this Agreement, and to proceed diligently
with said work to completion as described in the Completion
Schedule/Project Billing/Project Budget attached hereto as Exhibit "B" and
incorporated herein by reference for all purposes.
ARTICLE 2
THE TOWN'S RESPONSIBILITIES
2.1 Proiect Data - The Town shall furnish required information, that it
currently has in its possession, as expeditiously as necessary for the
orderly progress of the work, and the Consultant shall be entitled to rely
upon the accuracy and completeness thereof.
2.2 Town Proiect Manager - The Town shall designate, when necessary, a
representative authorized to act on the Town's behalf with respect to the
Project (the "Project Manager"). The Town or such authorized
representative shall examine the documents submitted by the Consultant
and shall render any required decisions pertaining thereto as soon as
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practical so as to avoid unreasonable delay in the progress of the
Consultant's services.
ARTICLE 3
CONTRACTOR'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 time
and expense basis not to exceed Nineteen Thousand Nine Hundred
Dollars and zero cents ($19,900.00), ("Consultant's Fee") and shall be
paid in accordance with Article 3 and the Completion Schedule/Project
Billing/Project Budget as set forth in Exhibit "B". The final 5% of the
Consultant's Fee, or $ (995.00), shall not be paid until the Consultant has
delivered the final product as specified in the Project Deliverables section
of the Scope of Services attached hereto as Exhibit "A".
3.4 Invoices = No payment to the Consultant shall be made until Consultant
tenders an invoice to the Town. Payments are payable to the Consultant
within thirty (30) days from the date of invoice as long as the invoice is
mailed to Town within three (3) days of the date of the invoice. Invoices
are to be mailed to Town immediately upon completion of each individual
task listed in Exhibit "B". If any invoice remains outstanding and unpaid for
more than sixty (60) days from the date of invoice, and Consultant has
fully performed its obligations as set forth herein, the Consultant has the
option upon written notice to the Town, to suspend all work specified
under this Agreement until the account is brought current. Continued
performance and/or completion of work by the Consultant under this
Agreement shall resume upon the payment of the earned fees by the
Town.
3.5 Failure to Pay - Failure of the Town to pay an invoice, for a reason other
than cause, to the 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, refuse to render
further services to the Town and such act or acts shall not be deemed a
breach of this Agreement. The Town shall not be required to pay any
invoice submitted by the Consultant if the Consultant breached any
provision(s) herein.
3.6 Adjusted Compensation - If the Scope of the Project or if the
Consultant's services are materially changed, 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 agreed upon in
writing by both parties before the services are performed.
3.7 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
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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, surveys, 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
ARTICLE 5
CONSULTANT'S ACCOUNTING RECORDS
ARTICLE 6
AUDITS AND RECORDS/PROHIBITED INTEREST
The Consultant agrees that at any time during normal business hours and as
often as 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, all for a period of one (1) year from the date of final
settlement of this Agreement or for such other or longer period, if any, as may be
required by applicable statute or other lawful requirement.
The Consultant agrees that it is aware of the prohibited interest requirement of
the Town Charter, which is repeated on the Affidavit, and will abide by the same.
Further, a lawful representative of Consultant shall execute the Affidavit attached
hereto and incorporated herein by reference for all purposes. Consultant
understands and agrees that the existence of a prohibited interest during the
term of this Agreement will render the Agreement voidable.
ARTICLE 7
TERMINATION OF AGREEMENT/REMEDIES
Town may, on thirty (30) days written notice to Consultant, terminate this
Agreement, for any reason, before the termination date hereof, and without
prejudice to any other remedy it may have. If Town terminates this Agreement
due to a default of and/or breach by Consultant and the expense of finishing the
Project exceeds the Consultant's Fee at the time of termination, Consultant
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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 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 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 other 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 8
DISPUTE RESOLUTION/MEDIATION
In addition to all remedies at law, the parties may resolve/mediate any
controversy, claim or dispute arising out of or relating to the interpretation or
performance of this Agreement, or breach thereof, by voluntary mediation to be
conducted by a mutually acceptable mediator.
ARTICLE 9
INDEMNITY
Contractor shall release, defend, indemnify and hold harmless Town and its
Town Council members, officers, agents, representatives and employees from
and against all damages, injuries (including death), claims, property damages
(including loss of use), losses, demands, suits, judgments and costs, including
reasonable attorney's fees and expenses, in any way arising out of, related to, or
resulting from the performance of the work caused by the negligent act and/or
wrongful intentional act and/or omission of Consultant, its officers, agents,
representatives, employees, subcontractors, licensees, invitees or any other third
parties from whom Consultant is legally responsible (hereinafter "Claims").
Consultant is expressly required to defend Town against all such Claims.
In its sole discretion, Town shall have the right to select or to approve defense
counsel to be retained by 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
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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.
ARTICLE 10
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:
Town Manager
Town of Prosper -
P.O. Box 307
Prosper, Texas 75034
Town agrees that all notices or communication to Consultant permitted or
required under this Agreement shall be delivered to Consultant at the following
address:
Michael S. Dowdey, P.E.
Dowdey, Anderson & Associates, Inc.
5225 Village Creek Drive, Ste 200
Plano, Texas 75093
Any notice provided for under the terms of this Agreement by either party to the
other shall be in writing and may be effected by registered or certified mail, return
receipt requested.
All notices or communication required to be given in writing by one party or the
other shall be considered as having been given to the addressee on the date
such notice or communication is postmarked by the sending party. Each party
may change the address to which notice may be sent to that party by giving
notice of such change to the other party in accordance with the provisions of this
Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 Complete Aqreement - This Agreement, including the exhibits hereto
labeled "A" through "C", all of which are incorporated herein for all
purposes, constitute the entire agreement by and between the parties
regarding the subject matter hereof and supersedes all prior and/or
contemporaneous written and/or oral understandings. This Agreement
Design Services Agreement Page 6 of 14
may not be amended, supplemented, and/or modified except by written
agreement duly executed by both parties.
11.2 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.
11.3 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.
11.4 Severability - In the event a term, condition, or provision of this
Agreement is determined to be invalid, illegal, void, unenforceable, or
unlawful by a court of competent jurisdiction, then that term, condition, or
provision, shall be deleted and the remainder of the Agreement shall
remain in full force and effect as if such invalid, illegal, void, unenforceable
or unlawful provision had never been contained herein.
11.5 Venue - This entire Agreement is performable in Collin County, Texas and
the venue for any action related directly or indirectly, to this Agreement or
in any manner connected therewith shall be Collin County, Texas, and this
Agreement shall be construed under the laws of the State of Texas.
11.6 Execution/Consideration - This Agreement is executed by the parties
hereto without coercion or duress for any substantial consideration, the
sufficiency of which is forever confessed.
11.7 Aut= The individuals executing this Agreement on behalf of the
respective parties below represent to each other that all appropriate and
necessary action has been taken to authorize the individual who 'is
executing this Agreement to do so for and on behalf of the party for which
his or her signature appears, that there are no other parties or entities
required to execute this Agreement in order for the same to be an
authorized and binding agreement on the party for whom the individual is
signing this Agreement and that each individual affixing his or her
signature hereto is authorized to do so, and such authorization is valid and
effective on the date thereof.
11.8 Waiver - Waiver by either party of any breach of this Agreement, or the
failure of either party to enforce any of the provisions of this Agreement, at
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I
any time, shall not in any way affect, limit or waive such party's right
thereafter to enforce and compel strict compliance.
11.9 Headings - The headings of the various sections of this Agreement are
included solely for convenience of reference and are not to be full or
accurate descriptions of the content thereof.
11.10 Multiple Counterparts - This Agreement may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes.
11.11 Sovereign Immunity - The parties agree that the Town has not waived its
sovereign immunity by entering into and performing its obligations under
this Agreement.
11.12 Representatives - Each signatory represents this Agreement has been
read by the party for which this Agreement is executed and that such party
has had the opportunity to confer with its counsel.
11.13 Miscellaneous Drafting Provisions - This Agreement shall be deemed
drafted equally by all parties hereto. The language of all parts of this
Agreement shall be construed as a whole according to its fair meaning,
and any presumption or principle that the language herein is to be
construed against any party shall not apply.
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: 44,6 4(sr- / 7 ,-,7 1� e 7
TOWN CONSULTANT
The Town of Prosper, Texas Dowdey, Anderson & Associates, Inc.
Y
By.A�5a By: ANa m P
Title: Town Manager Title: Soe-- rT p-4 -
Design Services Agreement Page 8 of 14
STATE OF TEXAS:
COUNTY OF COLLIN:
BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND
F LTH� S STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED
KNOWN TO ME TO BE THE PERSON WHOSE
NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND
ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE
PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPATOWN
THEREIN STATED.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS IS'
DAY OF
qkAalff, 2007. _
NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS
STATE OF TEXAS: 's °p MATTHEW o. DENTON
• • = Notary Public, Slate of Texas
glma` �ps� My Commission Expires (18-05-08
COUNTY OF COLLIN:s"''E°���''
BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND
FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED
& " A KNOWN TO ME TO BE THE PERSON WHOSE
NAME IS SUBSCRIBgD TO THE FOREGOING INSTRUMENT AND
ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE
PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPATOWN
THEREIN STATED.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS 3,y DAY OF
rr2007.
NOTARY P),/q3LIC IN AND
r
THE�T%1TE OF TEXAS
RAYMOND ESPINOZA
Notary Public, State of Texas
My Commission Expires
June 29, 2010
Design Services Agreement Page 9 of 14
EXHIBIT "A"
SCOPE OF SERVICES
Agreement between the Town of Prosper, Texas (Town)
and Dowdey, Anderson & Associates, Inc. (Consultant)
PROJECT DESCRIPTION
Task 1A Topography to tie down existing conditions within Prosper Trail right-of-
way and 100' both upstream and downstream.
Task 1 B Topography to tie down existing conditions south of Prosper Trail
through the 80' drainage easement within the Trails of Prosper subdivision.
Task 2 Hydrology Study to determine ultimate conditions of flow through culvert
and drainage channel on north and south side of Prosper Trail.
Task 3 Provide options to armor drainage channel along with opinion of
probable costs for each option.
Task 4A Construction Documents to extend box culvert to full extent of right-of-
way, in addition to providing necessary erosion control devices'and grading to
conform to surroundings.
Task 4B Construction Documents to construct concrete lined (or alternate)
channel in south drainage easement and adjust outfall structures within channel.
Task 5 Prepare and coordinate obtaining offsite easement documents.
Task 6 Aid in pre -construction services to bid the project.
Task 7 Reimbursables (Prints & Courier Service)
Design Services Agreement Page 10 of 14
DELIVERABLES
For each bid package, (CONSULTANT) will deliver the following products to the Town
of Prosper:
PROJECT LABOR ALLOCATION
TASK 1A
TASK 1 B $1,500 12 Hours
TASK2 $2,000 16 Hours
TASK 3 $1,500 10 Hours
TASK 4A
W #." V 10 Hours
$2,000 15 Hours
TASK 4B
$2,900 22 Hours
TASK5 NOT TO EXCEED $1,000
TASK 6 NOT TO EXCEED $2,000
TASK7 NOT TO EXCEED $6,000
TOTAL PROJECT $19,900 85 Hours
Design Services Agreement Page 11 of 14
EXHIBIT B
COMPLETION SCHEDULE/PROJECT BILLING/PROJECT BUDGET
Agreement between the Town of Prosper, Texas (Town)
and Dowdey, Anderson & Associates, Inc. (Consultant)
For the (Prosper Trail Culvert Extension & Drainage Channel Improvements)
MONTH $ AMOUNT TASK COMPLETED
1 5,000.00 1 A, 1 B& 2
2 1,000.00 3
3 4,900.00 4A & 413
4 - 9,000.00 5,6 & 7*
TOTAL 19,990.00
Items 5, 6, & 7 — total amount for these items shall not exceed $9,000.00
Design Services Agreement Page 12 of 14
EXHIBIT C
AFFIDAVIT
THE STATE OF TEXAS §
COUNTIES OF COLLIN/DENTON §
1, k164 9k S NWDIN a member of the Consultant team make this affidavit
and hereby on oath state the following: I, and/or a person or persons related to
me, have a substantial interest in a business entity that would be peculiarly
affected by my work or decision on the project as those terms are defined in
Article 988b, V.T.C.S.
The business entity is:
have/has) a substantial interest in this business entity for the following reasons:
(Check all which are applicable)
Ownership of 10% or more of the voting shares of the business entity.
Ownership of $2,500 or more of the fair market value of the business
entity.
Funds received from the business entity exceed 10% of income for the
previous year.
Real property is involved and have an equitable or legal ownership with a
fair market value of at least $2,500.
A relative of mine has substantial interest in the business entity or property
that would be affected by my decision of the public body of which I am a
member.
Other:
7 None of the Above.
Design Services Agreement Page 13 of 14
Upon the filing of this affidavit with the Town of Prosper, Texas, I affirm that I will
abstain from acting on any decision involving this business entity and from any
further participation on this matter whatsoever.
Signed this -,3 rD da of
y ��"'l , 2007.
iggnaturef O ficial itle
.- ` vz� e45-0---
BEFORE ME, the undersigned authority, this day personally appeared
57
`%�,,e" and on oath stated that the facts
hereinabove stated are true the best of his/her knowledge or belief.
Sworn to and subscribed before me on this LZ day of
2007
r
RAYMOND ESPINOZA jaP is in and�foretate of a as
µrri�
Notary Public, State of Texas
:p5 My Commission Expires
June29, 2010
My commission expires:
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