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10-014 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 10-014 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 FOR THE WILSON CREEK TRIBUTARY WASTEWATER INTERCEPTOR, BETWEEN WALKER PARTNERS,LLC,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 for the Wilson Creek Tributary Wastewater Interceptor, between Walker Partners,LLC, and the Town of Prosper, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 9th of February, 2010. Ray Sreit ,Mayor Pr ATTEST TO: 60, attliew D. Denton,TRMC w l Town Secretary n; Z., ""N."'600 „ u � AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS (TOWN) AND WALKER PARTNERS, LLC (CONSULTANT) FOR WILSON CREEK TRIBUTARY WASTEWATER INTERCEPTOR ENGINEERING DESIGN SERVICES AGREEMENT made as of the day of Oq-*�--kkyl the Year Two Thousand and Ten: 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: Walker Partners, LLC 600 Austin Avenue, Suite 20 Waco, Texas 76701 telephone 254-714-1402 facsimile 254-714-0402 for the following Project: Wilson Creek Tributary Wastewater Interceptor 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 Walker Partners, LLC (CONSULTANT), hereinafter referred to as "Consultant", to be effective from and after the date as provided herein the "Agreement". Design Services Agreement Page 1 of 15 WHEREAS, the Town desires to engage the services of the Consultant to prepare Wilson Creep Tribute Wastewater Interce for in the Town, hereinafter referred to as the "Project"; and WHEREAS, the Consultant desires to render such civil engineering and survevinq 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 Emplovment 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 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 practical so as to avoid unreasonable delay in the progress of the Consultant's services. Design Services Agreement Page 2 of 15 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 time and expense basis not to exceed One Hundred Fifty-Six Thousand Dollars and zero cents ($156,000.00), ("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 $7,800.00, 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 Eay - 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 Adiusted 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 Prosect 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, Design Services Agreement Page 3 of 15 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 waives its right to any portion of Consultant's Fee as set forth in Article 3 herein Design Services Agreement Page 4 of 15 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 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, 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, subConsultants, 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 i) such right is expressly waived by Town in writing or (ii) the insurance policy which provides coverage to Consultant for such claim reserves the right to select counsel to the insurance company. Town reserves the right to provide a portion or all of its own defense; however, Town is Design Services Agreement Page 5 of 15 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. 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: George E. "Jed"Walker, Jr., P. E. Walker Partners, LLC 600 Austin Avenue, Suite 20 Waco, Texas 76701 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 Agee ent - 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 Design Services Agreement Page 6 of 15 contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. 11.2 Assignment ,and Subletting - The 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, subConsultants, 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 Authority_ - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 11.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at Design Services Agreement Page 7 of 15 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 Immunit —The parties agree that the Town has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. 11.12 Re resentatives — 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: E��`�'t'`� TOWN CONSULTANT The Town of Peer, as WALKER PARTNERS, LLC B By: . Name Title: Town Manager Title: President Design Services Agreement Page 8 of 15 STATE OF TEXAS: COUNTY OF McLENNAN: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED C�el)rcle I' e-v A 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. G ,EN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF "1 t u , 2010. 10 ARY UBLIC JIN AND FOR THE STATE OF TEXAS ..: 7pu prt,ay ,yg :. � '" p4 au ,, �dPµr'46 iY + 4�hN b"U�MY •. ty prH h �;..,,rsa wary. .r>N 'v�ew,, eru uuuonunvu!Jna"+wwsmnzvb'rIwwuf.owu9Yar: STATE OF TEXAS: COUNTY OF COLLIN: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED 10111C CF Z-AA-16 (Name), 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 1-I AND SEAL OF OFFICE THIS � � DAY OF .4/Z- 201 NOTARY P B IN AND FOR THE STATE OF TEXAS ,W 00tary tiab-c, State of lbw$ Design Services Agreement Page 9 of 15 EXHIBIT "A" SCOPE OF SERVICES Agreement between the Town of Prosper, Texas (Town) And Walker Partners, LLC (Consultant) PROJECT DESCRIPTION I. Survey Phase A. Perform a topographic survey of the final alignment for engineering design. B. Engineer will meet and coordinate the survey effort with the Town of Prosper. ll. Final Design Phase A. Establish the scope of any soil investigations which, in the opinion of the Engineer, may be required for design; assist the Town in arranging for such work to be done, for the Town's account. B. Furnish to the Town, where required by the circumstances of the assignment, the engineering data necessary for applications for routine permits by local and state authorities. C. Prepare detailed specifications and contract drawings (Contract Documents) for construction authorized by the Town. D. Prepare detailed cost estimates of the authorized construction. The Engineer shall not be required to guarantee the accuracy of these estimates. E. Furnish the Town ten copies of the approved Contract Documents including notices to bidders and proposal forms. F. Engineer will meet and coordinate with the Town of Prosper as necessary to finalize the Design Phase. III. Construction Phase A. Assist the Town in the opening and tabulation of bids for construction of the Project, and consult with the Town as to the proper action to be taken, based on the engineering considerations involved. B. Assist in the preparation of formal Contract Documents. C. Make two visits to the site (as distinguished from the continuous services of a Resident Project Representative) to observe the progress and quality of the executed work and to determine in general if the work is proceeding in accordance with the Contract Documents. In performing these services, the Engineer will endeavor to protect the Town against defects and deficiencies in the work of the contractor, but he cannot guarantee the performance of the contractor, nor be responsible for the actual supervision of construction operations or for the safety measures that the contractor takes or should take. D. Review samples, catalog data, schedules, shop drawings, laboratory, shop and mill tests of material and equipment and other data which the contractor submits. This review is for the benefit of the Town and covers only general conformance with the information given by the Contract Documents. The contractor is to review and stamp his approval on submittals prior to submitting to Engineer, and review by the Engineer does not relieve the contractor of any responsibility such as dimensions to be confirmed and correlated at the job site, appropriate safety measures to protect workers and the public, or the Design Services Agreement Page 10 of 15 necessity to construct a complete and workable facility in accordance with Contract Documents. E. Conduct, in company with the Town, a final inspection of the Project for compliance with the Contract Documents, and submit recommendations concerning project status, as it may affect Town's final payment to the contractors. F. Engineer will meet and coordinate with the Town of Prosper as necessary to "close-out" the project. G. Prepare Record Drawings based upon the input received from Prosper's Public Works inspectors. FEE SCHEDULE Walker Partners proposes to provide the specific services described above on a lump sum fee basis as follows: Walker Walker Basic Services for"Base Bid" Fee Basis Fee Phase I. Topographic Survey Lump Sum $ 19,300 12 II. Final Design Phase Services Lump Sum $ 87,000 40 III. Construction Phase Services Lump Sum $ 2,300 60 Total Basic Services for"Base Bid" $108,600 Basic Services for Alternate No. 1 I. Topographic Survey Lump Sum $ 4,900 12 II. Design Phase Services Lump Sum 10,000 40 Total Basic Services for Alternate No. 1 $ 14,900 Please note that the above fees are based on a smooth project implementation and have assumed no major changes to the Town of Prosper's approved plan. Work provided outside the above scope of services, and pre-approved by the Town of Prosper, will be billed as an additional service at our standard hourly rates as outlined below: FEE RATE SCHEDULE Managing Principal $210/hour Billing Class 11 Sr. Project Manager $160/hour Billing Class 10 Project Manager $125/hour Billing Class 9 Professional VI $100/hour Billing Class 8 Professional V $80/hour Billing Class 7 Professional IV $70/hour Billing Class 6 Professional III $65/hour Billing Class 5 Professional II $60/hour Billing Class 4 Technician IV $80/hour Billing Class 3 Technician III $65/hour Billing Class 2 Technician II $45/hour Billing Class 1 Technician I $35/hour Support Staff $30/hour 1-Man Crew $90/hour 2-Man Crew $110/hour 3-Man Crew $145/hour Design Services Agreement Page 11 of 15 SPECIAL SERVICES In addition to the above-outlined engineering design and surveying services, we propose to prepare plats and field note descriptions for the ten permanent and ten temporary construction easements that will be required for the project. For each easement, we will conduct the property ownership and deed research, perform all necessary boundary computations, prepare the plats and field notes, and set iron rods at the easement corners. The estimated fee for the easement preparation is outlined below: i. Permanent Easement Preparation: 10 easements at$3,000/each = $30,000 ii. Temporary Easement Preparation: 10 easements at$250/each = 2,500 Total Fee = $32,500 ASSUMPTIONS In preparing this proposal, we have made the following assumptions; A. Site Engineer will not be required to acquire the off-site easements necessary for the completion of this project. All easement acquisition activities are assumed to be performed by the Town of Prosper. B. Miscellaneous • This project will not encounter significant opposition from County or State review agencies, neighborhood groups, environmental groups, etc. C. Subconsultants The following services are excluded from this proposal: • Geotechnical engineering, soil borings or analysis. • Environmental site assessments, NPDES storm water permitting, wetlands, and endangered species investigations. Design Services Agreement Page 12 of 15 EXHIBIT B COMPLETION SCHEDULE/PROJECT BILLING/PROJECT BUDGET Agreement between the Town of Prosper, Texas (Town) and Walker Partners, LLC. (Consultant) For the Wilson Creek Tributary Wastewater Interceptor MONTH $ AMOUNT TASK COMPLETED 1 -2 $ 24,200 3- 6 $129,500 �.._._._. TOTAL $156,000 Design Services Agreement Page 13 of 15 EXHIBIT C AFFIDAVIT THE STATE OF TEXAS § COUNTIES OF McLENNAN § I, 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: 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 day of , 2010.. Design Services Agreement Page 14 of 15 Signature of Official/Title BEFORE ME, the undersigned authority, this day personally appeared and on oath stated that the facts hereinabove stated are true to the best of his/her knowledge or belief. Sworn to and subscribed before me on this day of w20110 Notary Public in and for the State of Texas My commission expires: Design Services Agreement Page 15 of 15