Resolution 2012-18RESOLUTION NO. 2012-18(R)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS, HEREBY AUTHORIZING THE CITY MANAGER OF THE
CITY OF WYLIE, TEXAS, TO EXECUTE A CONTRACT WITH
KIMLEY -HORN ASSOCIATES, INC. FOR THE DESIGN OF THE
WOODBRIDGE PARKWAY RECONSTRUCTION FROM HENSLEY
LANE TO MAXWELL CREEK BRIDGE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WYLIE, TEXAS:
SECTION 1: The City Manager of the City of WYLIE, Texas, is hereby authorized to
execute, on behalf of the City Council of the City of WYLIE, Texas, the contract between the
City of Wylie and Kimley -Horn Associates, Inc. for the design of the Woodbridge Parkway
Reconstruction.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 22nd day of May 2012.
ATTEST TO:
CA OLE EH H, City Secretary
Resolution No. 2012 -18(R)
Kimley -Hom Design Services
ERIC HOGUE, l a of
OF�l
EXHIBIT "A"
Contract
Resolution No. 2012 -18(R)
Kimley -Horn Design Services
AGREEMENT
BETWEEN
THE CITY OF WYLIE, TEXAS (CITY)
AND
KIMLEY -HORN AND ASSOCIATES, INC. (CONSULTANT)
FOR
ENGINEERING
DESIGN SERVICES AGREEMENT
Made as of the
and Twelve:
BETWEEN the City:
and the Consultant:
day of
in the year Two Thousand
The City of Wylie, Texas
300 Country Club
Wylie, Texas 75098
Telephone: (972) 516 -6400
Kimley -Horn and Associates, Inc.
12700 Park Central Drive Suite 1800
Dallas, TX 75251 -1516
Telephone: (972) 770 -1300
Facsimile: (972) 239 -3820
for the following Project: Woodbridge Parkway Reconstruction (Hensley
Lane to Maxwell Creek Bridge)
The City and the Consultant agree as set forth below.
THIS AGREEMENT is made and entered by and between the City of Wylie,
Texas, a Horne -Rule Municipal Corporation, hereinafter referred to as "City,"
and Klmley -Horn and Associates, Inc., hereinafter referred to as
"Consultant," to be effective from and after the date as provided herein,
hereinafter referred to as "Agreement."
WHEREAS, the City desires to engage the services of the Consultant to
design and /or prepare construction documents for a the reconstruction of
Woodbridge Parkway from Hensley Lane to the Maxwell Creek Bridge within
the City of Wylie, Texas, hereinafter referred to as "Project;" and
City of Wylie — Consultant Services Agreement Page 1
459432.v2
WHEREAS, the Consultant desires to render such professional engineering
services for the City 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 I
CONSULTANT'S SERVICES
1.1 Employment of the Consultant — The City 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.
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 City...
1.2.1 Requirement of Written Change Order — "Extra" work, or
"claims" invoiced as "extra" work, or "claims" which have not
been issued as a duly executed, written change order by the
Wylie City 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 Wylie City
Council's authorization for the Wylie City 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 WYLIE CITY MANAGER. Project
Managers, Superintendents, and/or Inspectors of the City 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
August 31, 2012.
City of Wylie — Consultant Services Agreement Page 2
454432.v2
ARTICLE 2
THE CITY'S RESPONSIBILITIES
City shall do the following in a timely manner so as not to delay the services of
Consultant:
2.1 Pro,wect Data — The City shall furnish required information that is
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 City Project Manager — The City shall designate, when necessary, a
representative authorized to act on the City's behalf with respect to the
Project (the "Project Manager"). The City or such authorized
representative shall examine the documents submitted by the
Consultant and shall render any required decisions pertaining thereto as
soon as practicable so as to avoid unreasonable delay in the progress
of the Consultant's services.. The Project Manager is not authorized to
issue verbal or written change orders for "extra" work or "claims"
invoiced as "extra" work.
ARTICLE 3
CONSULTANT'S COMPENSATION
3.1 Compensation for Consultant's Services — As described in "Article 1,
Consultant's Services," compensation for this Project shall be on a
Lump Sum Basis not to exceed One Hundred Twenty -Five Thousand
and Sixty and 001100 Dollars ($125,060.00), ( "Consultant's Fee ") and
shall be paid in accordance with Article 3 and the Compensation
Schedule / Project Billing I Project Budget as set forth in Exhibit "B."
The final five percent (5 %) of the Consultant's Fee, or Six Thousand
Two Hundred Fifty Three and 00 /100 Dollars ($6,253.00), shall not be
paid until the Consultant has completed all of the services described in
Exhibit "A" and delivered to the City all of the documents, plans, data,
maps, and /or other information required in Exhibit "A."
3.1.1 Completion of Record Documents — City and Consultant agree
that the completion of the Record Documents and/or "As- Built"
Documents, including hard copy formatting and electronic
formatting, shall be completed, submitted to, and accepted by the
City prior to payment of the final five percent (5 %) of the
Consultant's Fee, or Six Thousand Ninety Two and 50/100
Dollars ($6,012.50). The electronic formatting shall be consistent
with the standards established in Exhibit "D," City of Wylie
Guidelines for Computer Aided Design and Drafting ( "CADD ").
City of Wylie — Consultant Services Agreement Page 3
454432.v2
Completion of the Record Documents and /or "As- Built"
documents shall be included in the Consultant's Fee and
considered to be within the Scope of Services defined under this
Agreement.
3.1.2 Disputes between City 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 City, and upon
receipt of a written request by City, Consultant shall research
previous and existing conditions of the Project, and make a
determination whether or not to certify that sufficient cause exists
fot the City to declare the Contractor in default of the terms and
conditions of the agreement. Consultant shall submit his findings
in writing to the City, 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 City. City and Consultant agree that if requested by the City,
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 City.
3.1.4 Substantial Compliance with Architectural Barriers Act —
Should the Project fall within the regulatory requirements of the
Texas Architectural Barriers Act (the "Barriers Act "), as solely
determined by the City, 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
City of Wylie — Consultant Services Agreement Page 4
459432.v2
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.—
The Consultant shall mail, ship, or hand - deliver the
construction documents to TDLR not later than five (5)
calendar days after the Consultant issues the
construction documents for the Project.
3.1.4.2 Completion of Reoistration 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 prior review to the completion
of construction of the Project.
3.1.4.4 TDLR Project Inspection — Consultant shall request
an inspection from TDLR or a TDLR locally approved
RAS no later than thirty (30) calendar days after the
completion of construction of the Project. The
Consultant shall advise the City in writing of the results
of each Project inspection. City reserves the right to
City of Wylie — Consultant Services Agreement Page 5
459432.v2
verify the written results with TDLR at any time during
design, construction, or at the completion of the
Project.
3.1.4.5 Corrective Modifications following TDLR Project
Inspection - When corrective modifications to achieve
substantial compliance are required, the TDLR
inspector or the RAS shall provide the Consultant a list
of deficiencies and a deadline for completing the
modifications. Consultant shall provide the City 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 City with written
verification of the corrective measures completed.
3.1.4.6 TDLR Notice of Substantial Compliance — TDLR
shall provide a Notice of Substantial Compliance to the
City after the newly constructed Project has had a
satisfactory inspection, or Consultant has submitted
verification of corrective modifications. City and
Consultant agree that the final five percent (5 %) of
Consultant's Fee, or Six Thousand Ninety Two and
50/100 Dollars ($6,012.50) shall not be paid until the
City is in receipt of the TDLR's Notice of Substantial
Compliance for all Project components and /or phases
of the Project.
3.2 Direct Expenses — Direct Expenses are included in the Consultant's
Fee as described in Article 3.1 and include actual reasonable and
necessary expenditures made by the Consultant and the Consultant's
employees and subcontractors in the interest of the Project. All
submitted Direct Expenses are to be within the amounts as stated in the
Compensation Schedule / Project Billing / Project Budget set forth in
Exhibit "B," and consistent with Exhibit "E," City of Wylie Guidelines for
Direct Expenses, General and Administrative Markup, and Travel and
Subsistence Expenses. The Consultant shall be solely responsible for
the auditing of all Direct Expenses, including the subcontractors, prior to
submitting to the City for reimbursement, and shall be responsible for
the accuracy thereof. Any over - payment by the City for errors in
submittals for reimbursement may be deducted from the Consultant's
subsequent payment for services; provided, however this shall not be
the City's sole and exclusive remedy for said overpayment.
City of Wylie — Consultant Services Agreement Page 6
459432.v2
33 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 City, 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 City 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 City 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 City.
Hourly Billable Rates by Position
Position Hourly Rate
Support Staff/Technician $ 60 -$105
Analyst $ 125 -$150
Designer $ 100 -$155
CAD Technician $ 130 -$145
Engineer /Professional $ 145 -$190
Senior Engineer II $ 190 -$230
Senior Engineer 1 $ 220 -250
City of Wylie Consultant Services Agreement Page 7
459432.'V2
3.4 Invoices — No payment to Consultant shall be made until Consultant
tenders an invoice to the City. Invoices are to be mailed to City
immediately upon completion of each individual task listed in Exhibit "B."
On all submitted invoices, Consultant shall include appropriate
background materials to support the submitted charges on said invoice. 3
Such background material shall include, but is not limited to, employee
timesheets, invoices for work obtained from other parties, and receipts
and/or log information relating to Direct Expenses. All invoices for
payment shall provide a summary methodology for administrative
markup and /or overhead charges.
3.5 Timing__ of Payment — City shall make payment to Consultant for said
invoices within thirty (30) days following receipt and acceptance thereof.
The parties agree that payment by City to Consultant is considered to
be complete upon mailing of payment by City. Furthermore, the parties
agree that the payment is considered to be mailed on the date that the
payment is postmarked.
3.6 Disputed Payment Procedures — In the event of a disputed or
contested billing by City, only that portion so contested may be withheld
from payment, and the undisputed portion will be paid. City shall notify
Consultant of a disputed invoice, or portion of an invoice, in writing by
the twenty -first (218) calendar day after the date the City receives the
invoice. City shall provide Consultant an opportunity to cure the basis of
the dispute. If a dispute is resolved in favor of the Consultant, City 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
City, Consultant shall submit to City 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 City in processing payment for the remaining balance. Such
revised invoice shall have a new invoice number, clearly referencing the
previous submitted invoice. City agrees to exercise reasonableness in
contesting any billing or portion thereof that has background materials
supporting the submitted charges.
3.7 Failure to Pay — Failure of the City 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 City, suspend performance
under this Agreement, and such act or acts shall not be deemed a
breach of this Agreement. However, Consultant shall not suspend
performance under this Agreement prior to the tenth (10th) calendar day
after written notice of suspension was provided to City, in accordance
with Chapter 2251, Subchapter "D" ( "Remedy for Nonpayment') of the -°
City of Wylie — Consultant Services Agreement Page 8
459432A
Texas Govemment Code. The City shall not be required to pay any
invoice submitted by the Consultant if the Consultant breached any
provision(s) herein.
3.8 Adjusted 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 City. Any additional amounts paid to the Consultant as
a result of any material change to the Scope of the Project shall be
authorized by written change order duly executed by both parties before
the services are performed.
3.9 Project Suspension — If the Project is suspended or abandoned in
whole or in part for more than three (3) months, Consultant shall be
entitled to compensation for any and all work completed to the
satisfaction of City 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 City 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 City. 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 Property of the City — The Project is the property of the
City, 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 City's
prior written consent. City shall be furnished with such reproductions of
the Project, plans, data, documents, maps, and any other information as
defined in Exhibit "A." Upon completion of the work, or any earlier
termination of this Agreement under Article 3 and/or Article 7,
Consultant will revise plans, data, documents, maps, and any other
information as defined in Exhibit "A" to reflect changes while working on
the Project and promptly furnish the same to the City in an acceptable
electronic format. All such reproductions shall be the property of the
City who may use them without the Consultant's permission for any
purpose relating to the Project, including, but not limited to, completion
City of Wylie — Consultant Services Agreement Page 9
459432.v2
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 City's own risk.
4.2 Documents Subiect to Laws Regarding Public Disclosure —
Consultant acknowledges that City 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 City 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 "F," City of Wylie Contractor Insurance
Requirements, Consultant shall maintain, at no expense to City, 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 001100 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 City, 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 City 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 City 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 City with certificates evidencing such coverage
prior to commencing work on the Project.
5.2 Required Professional Liability Insurance — - Consistent with the
terms and provisions of Exhibit "F," City of Wylie Contractor Insurance
Guidelines, Consultant shall maintain, at no expense to City, 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
City of Wylie — Consultant Services Agreement Page 10
459432.v2
Million and 001100 Dollars ($1,000,000.00) for each claim, and Two
Million and 001100 Dollars ($2,000,000.00) in the aggregate. Such
policy shall require the provision of written notice to City 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 City 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 "F," City of Wylie Contractor Insurance
Requirements, Consultant shall maintain, at no expense to City, 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 provide for a waiver of subrogation
against the City 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
City 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 City with
certificates evidencing such coverage prior to commencing work on the
Project.
5.4 Circumstances Requiring Umbrella Coverage or Excess Liability
Coverage — If Project size and scope warrant, and if identified on the
checklist located in Exhibit "F," City of Wylie Contractor Insurance
Requirements, Consultant shall maintain, at no expense to the City, 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
001100 Dollars ($2,000,000.00). Consistent with the terms and
provisions of Exhibit "F," such policy shall name the City, 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 City for injuries, including death, property
damage, or any other loss to the extent that the same is covered by the
proceeds of the insurance. Such policy shall require the provision of
written notice to the City 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
City with certificates evidencing such coverage prior to commencing
work on the Project.
City of Wylie — Consultant Services Agreement Page 11
459432.v2
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 City as indicated in Article
3.4. Copies of employee time sheets, receipts for direct expense items and
other records of Project expenses will be included in the monthly invoices.
ARTICLE 7
AUDITS AND RECORDS 1 PROHIBITED INTEREST 1 VENDOR
DISCLOSURE
The Consultant agrees that at any time during normal business hours and as
often as the City may deem necessary, Consultant shall make available to
representatives of the City for examination all of its records with respect to all
matters covered by this Agreement, and will permit such representatives of the
City 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 City Charter, which is repeated on the Affidavit, attached hereto as Exhibit
"G" 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 "G ". 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 "H" and incorporated herein for all purposes.
ARTICLE 8
TERMINATION OF AGREEMENT 1 REMEDIES
City 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 City
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
City of Wylie — Consultant Services Agreement Page 12
459432.v2
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 City is required to pay in order to finish the Project. On any default
and /or breach by Consultant, City 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 City 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 City in accordance with
the provisions of this Agreement prior to termination.
In the event of any termination, Consultant shall deliver to City all finished
and /or unfinished documents, data, studies, surveys, drawings, maps, models,
reports, photographs and /or any items prepared by Consultant in connection
with this Agreement prior to Consultant receiving final payment.
The rights and remedies provided by this Agreement are cumulative, and the
use of any one right or remedy by either party shall not preclude or waive its
rights to use any or all other remedies. These rights and remedies are given in
addition to any other rights the parties may have by law, statute, ordinance, or
otherwise.
ARTICLE 9
DISPUTE RESOLUTION I 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 90
INDEMNITY
CONSULTANT SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS
CITY AND ITS CITY 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
ATTORNEYS' FEES AND EXPENSES INCURRED IN ENFORCING THIS
INDEMNITY), TO THE EXTENT CAUSED BY THE NEGLIGENT, GROSSLY
NEGLIGENT, AND /OR INTENTIONAL WRONGFUL ACT AND /OR OMISSION OF
City of Wylie — Consultant Services Agreement Page 13
459432.v2
CONSULTANT, ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES,
SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES
FROM WHOM CONSULTANT IS LEGALLY RESPONSIBLE, IN ITSITHEIR
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 CITY (HEREINAFTER "CLAIMS "). THIS
INDEMNIFICATION PROVISION AND THE USE OF THE TERM "CLAIMS" IS i
ALSO SPECIFICALLY INTENDED TO APPLY TO, BUT NOT LIMITED TO, ANY
AND ALL CLAIMS, WHETHER CIVIL OR CRIMINAL, BROUGHT AGAINST CITY
BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED TO ANY PERSON '
PROVIDING SERVICES UNDER THIS AGREEMENT THAT ARE BASED ON ANY
FEDERAL IMMIGRATION LAW AND ANY AND ALL CLAIMS, DEMANDS,
DAMAGES, ACTIONS AND CAUSES OF ACTION OF EVERY KIND AND
NATURE, KNOWN AND UNKNOWN, EXISTING OR CLAIMED TO EXIST,
RELATING TO OR ARISING OUT OF ANY EMPLOYMENT RELATIONSHIP
BETWEEN CONSULTANT AND ITS EMPLOYEES OR SUBCONTRACTORS AS A
RESULT OF THAT SUBCONTRACTOR'S OR EMPLOYEE'S EMPLOYMENT
AND /OR SEPARATION FROM EMPLOYMENT WITH THE CONSULTANT,
INCLUDING BUT NOT LIMITED TO ANY DISCRIMINATION CLAIM BASED ON
SEX, SEXUAL ORIENTATION OR PREFERENCE, RACE, RELIGION, COLOR,
NATIONAL ORIGIN, AGE OR DISABILITY UNDER FEDERAL, STATE OR LOCAL
LAW, RULE OR REGULATION, AND /OR ANY CLAIM FOR WRONGFUL
TERMINATION, BACK PAY, FUTURE WAGE LOSS, OVERTIME PAY,
EMPLOYEE BENEFITS, INJURY SUBJECT TO RELIEF UNDER THE WORKERS'
COMPENSATION ACT OR WOULD BE SUBJECT TO RELIEF UNDER ANY
POLICY FOR WORKERS COMPENSATION INSURANCE, AND ANY OTHER
CLAIM, WHETHER IN TORT, CONTRACT OR OTHERWISE. CONSULTANT IS
EXPRESSLY REQUIRED TO DEFEND CITY AGAINST ALL SUCH CLAIMS;
PROVIDED, HOWEVER, IF A COURT OF COMPETENT JURISDICTION
DETERMINES THAT THE CITY (WITHOUT WAIVING ANY GOVERNMENTAL
IMMUNITY) HAS JOINT, CONCURRENT OR SOLE NEGLIGENCE FOR THE
CLAIMS, IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, THEN
CONSULTANT IS NOT REQUIRED TO INDEMNIFY THE CITY TO THE EXTENT
OF THE NEGLIGENCE APPORTIONED TO THE CITY.
City of Wylie — Consultant Services Agreement Page 14
459432.v2
IN ITS SOLE DISCRETION, CITY SHALL HAVE THE RIGHT TO APPROVE OR
SELECT DEFENSE COUNSEL TO BE RETAINED BY CONSULTANT IN
FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY
CITY, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY CITY IN WRITING.
CITY RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN
DEFENSE; HOWEVER, CITY IS UNDER NO OBLIGATION TO DO SO. ANY
SUCH ACTION BY CITY IS NOT TO BE CONSTRUED AS A WAIVER OF
CONSULTANT'S OBLIGATION TO DEFEND CITY OR AS A WAIVER OF
CONSULTANT'S OBLIGATION TO INDEMNIFY CITY PURSUANT TO THIS
AGREEMENT. CONSULTANT SHALL RETAIN CITY - APPROVED DEFENSE
COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF CITY'S WRITTEN NOTICE
THAT CITY IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS
AGREEMENT. IF CONSULTANT FAILS TO RETAIN COUNSEL WITHIN SUCH
TIME PERIOD, CITY SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL
ON ITS OWN BEHALF, AND CONSULTANT SHALL BE LIABLE FOR ALL COSTS
INCURRED BY CITY. 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 City permitted or
required under this Agreement shall be delivered to City at the following
addresses:
City Manager
City of Wylie
300 Country Club
Wylie, Texas 75098
City agrees that all notices or communication to Consultant permitted or
required under this Agreement shall be delivered to Consultant at the following
addresses:
Ashley M. Frysinger, P.E.
Associate
Kimley -Horn and Associates, Inc.
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251 -1516
City of Wylie — Consultant Services Agreement Page 15
459A32.v2
Any notice provided in writing under the terms of this Agreement by either
party to the other shall be in writing and may be effected by registered or
certified mail, return receipt requested.
All notices or communication required to be given in writing by one party or the
other shall be considered as having been given to the addressee on the date
such notice or communication is postmarked by the sending party. Each party
may change the address to which notice may be sent to that party by giving
notice of such change -to the other party in accordance with the provisions of
this Agreement.
ARTICLE 12
MISCELLANEOUS
12.1 Complete Agreement — This Agreement, including the exhibits hereto
labeled "A" through "G," all of which are incorporated herein for all
purposes, constitute the entire Agreement by and between the parties
regarding the subject matter hereof and supersedes all prior and /or
contemporaneous written and /or oral understandings. This Agreement
may not be amended, supplemented, and /or modifies 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," City of Wylie Guidelines for Surveying and
Benchmarking.
12.1.4 Exhibit "D," City of Wylie Guidelines for Computer Aided
Design and Drafting (CARD).
12.1.5 Exhibit "E," City of Wylie Guidelines for Direct Expenses;
General and Administrative Markup; Travel and Subsistence
Expenses.
12.1.6 Exhibit "F," City of Wylie Contractor Insurance Requirements.
12.1.7 Exhibit "G," Affidavit.
12.1.8 Exhibit "H ", Conflict of Interest Questionnaire, Form CIQ.
City of Wylie — Consultant Services Agreement Page 16
459432.41
12.2 Assignment and Sublettina — 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 City. The Consultant
further agrees that the assignment or subletting or 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 City 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 Assigns — City and Consultant, and their partners,
assigns, successors, subcontractors, executors, officers, agents,
employees, representatives, and administrators are hereby bound to the
terms and conditions of this Agreement.
12.4 Severability — In the event of a term, condition, or provision of this
Agreement is determined to be invalid, illegal, void, unenforceable, or
unlawful by a court of competent jurisdiction, then that term, condition,
or provision, shall be deleted and the remainder of the Agreement shall
remain in full force and effect as if such invalid, illegal, void,
unenforceable or unlawful provision had never been contained herein.
12.5 Venue — This entire Agreement is performable in Collin County, Texas
and the venue for any action related directly or indirectly, to this
Agreement or in any manner connected therewith shall be in Collin
County, Texas, and this Agreement shall be construed under the laws of
the State of Texas.
12.6 Execution 1 Consideration — This Agreement is executed by the
parties hereto without coercion or duress for any substantial
consideration, the sufficiency of which is forever confessed.
12.7 Authority — The individuals executing this Agreement on behalf of the
respective parties below represent to each other that all appropriate and
necessary action has been taken to authorize the individual who is
executing this Agreement to do so for an 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,
City of Wylie — Consultant Services Agreement page 17
459432.v2
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.
i
12.11 Sovereian Immunity — The parties agree that the City has not waived
its sovereign immunity by entering into and performing its obligations
under this Agreement.
12.12 Additional Representations — Each signatory represents this
Agreement has been read by the party for which this Agreement is
executed and that such party has had the opportunity to confer with its
counsel.
12.13 Miscellaneous Drafting Provisions — This Agreement shall be
deemed drafted equally by all parties hereto. The language of all parts
of this Agreement shall be construed as a whole according to its fair
meaning, and any presumption or principle that the language herein is
to be construed against any party shall not apply.
12.14 No Third Party Beneficiaries -- Nothing in this Agreement shall be
construed to create any right in any third party not a signatory to this
Agreement, and the parties do not intend to create any third party
beneficiaries by entering into this Agreement.
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:
CITY
City of Wylie, Texas
l-
Mindy Manson, City Manager
City of Wylie — Consultant Services Agreement
459432.`/1
CONSULTANT
Kimley -Horn and Associates, Inc.
By:
James Hall, P.E., Principal
Page 18
APPROVED AS TO FORM:
Abernathy, Roekfer, Boyd, 9---Joplin, P.C.
City Attorneys
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 Mindy Manson, 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
2012.
Notary Public In and For the State of Texas
My commission expires:
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 Ronny Klingbeil, known to
me to be the person whose name is subscribed to the foregoing instrument
and acknowledged to me that he /she 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
.2012.
Notary Public In and For the State of Texas
My commission expires:
City of Wylie — Consultant Services Agreement Page 19
459432.v2