Loading...
HomeMy WebLinkAboutResolution - 2023-R0328 - PSA 17433, with PondMedics, Inc dba dredgeSMART 6.27.23Resolution No. 2023-RO328 Item No. 6.18 June 27, 2023 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Professional Services Agreement Contract No. 17433 for a Cattail Control Plan for the Jim Bertram Canyon Lakes System, by and between the City of Lubbock and PondMedics, Inc., d/b/a dredgeSMART, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on ATTEST: Courtney Paz, APPROVED AS TO CONTENT: Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: Rachael Foster,I AsVistant City Attorney June 27, 2023 ccdocs/RES.PSA-No. 17433 - PondMedics, Inc. Cattail Control Plan- Canyon Lakes 6.15.23 Resolution No. 2023-RO328 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § This Professional Service Agreement ('-Agreement") Contract No. 17433 is entered into this _27 day of _ June , 2023, is by and between the City of Lubbock (the "City"), a Texas home al corporation, rule municipporation, and PondMedics, Inc., d/b/a dredgeSMART (the" Engineer'), a Texas corporation. WITNESSETH WHEREAS, The City desires to contract with the Engineer to provide professional services for a Cattail Control Plan for the Jim Bertram Canyon Lake System (the "Activities"). and WHEREAS, the Engineer has a professional staff experienced and is qualified to provide professional engineering services related to Activities, and will provide the services, as defined below, for the price provided herein, said price stipulated by the City and the Engineer to be a fair and reasonable price; and WHEREAS, the City desires to contract with the Engineer to provide professional services related to the Activities, and Engineer desires to provide the Services related to same. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Agreement, the City and the Engineer hereby agree as follows: ARTICLE I. TERM The term of this Agreement commences on the Effective Date and continues without interruption for a term of three (3) months. If the Engineer determines that additional time is required to complete the Services, the City Engineer, may, but is not obligated to, in his or her discretion, execute an agreement to grant up to an additional six (6) months of time so long as the amount of the consideration does not increase. An amendment to this Agreement resulting in an increase in the amount of the consideration must be approved by the City acting through its governing body. Page 1 of 1 I ARTICLE 11. SERVICES AND COMPENSATION A. The Engineer shall conduct all activities, and within such timeframes, as set forth on Exhibit "A", attached hereto (the "Services"). B. The Engineer shall receive as consideration to be paid for the performance of the Services, in an amount not to exceed $89,400.00, as set forth in Exhibit "A". ARTICLE III. TERMINATION A. General. The City may terminate this Agreement, for any reason or convenience, upon thirty (30) days written notice to the Engineer. In the event this Agreement is so terminated, the City shall only pay the Engineer for services actually performed by the Engineer up to the date the Engineer is deemed to have received notice of termination, as provided herein. B. Termination and Remedies. In the event the Engineer breaches any term and/or provision of this Agreement, the City shall be entitled to exercise any right or remedy available to it by this Agreement, at law, equity, or otherwise, including without limitation, termination of this Agreement and assertion of an action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any right or remedy and all rights and remedies shall be cumulative. ARTICLE IV. NON - ARBITRATION The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, this provision shall control. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. The Engineer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas and is qualified to carry on its business in the State of Texas. B. Corporate Power, The Engineer has the corporate power to enter into and perform this Agreement and all other activities contemplated hereby. C. Authorization. Execution, delivery, and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part Pap 2 of I I of the Engineer. This Agreement constitutes legal, valid, and binding obligations of the Engineer and is enforceable in accordance with the terms thereof. D. Engineer. The Engineer maintains a professional staff and employs, as needed, other qualified specialists experienced in providing the Services, and is familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the Activities contemplated hereby. E. Performance. The Engineer will and shall conduct all activities contemplated by this Agreement in accordance with the standard of care, skill and diligence normally provided by a professional person in performance of similar professional services, and comply with all applicable laws, rules, and regulations, both state and federal, relating to professional services, as contemplated hereby. F. Use of Copyrighted Material. The Engineer warrants that any materials provided by the Engineer for use by City pursuant to this Agreement shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other law, statute, rule, order, regulation, ordinance or contractual obligation relating to the use or reproduction of materials. The Engineer shall be solely responsible for ensuring that any materials provided by the Engineer pursuant to this Agreement satisfy this requirement and the Engineer agrees to indemnify and hold City harmless from all liability or loss caused to City or to which City is exposed on account of the Engineer's failure to perform this duty. ARTICLE VI. SCOPE OF WORK The Engineer shall accomplish the following: Professional Services related to the Services, as provided in Exhibit "A", attached hereto and made a part hereof. ARTICLE VII. INDEPENDENT CONTRACTOR STATUS The Engineer and the City agree that the Engineer shall perform the duties under this Agreement as an independent contractor and shall be considered as independent contractor under this Agreement and/or in its activities hereunder for all purposes. The Engineer has the sole discretion to determine the manner in which the Services are to be performed. During the performance of the Services under this Agreement, the Engineer and the Engineer's employees and/or sub -consultants, will not be considered, for any purpose, employees or agents of the City within the meaning or the application of any federal, state or local law or regulation, including without limitation, laws, rules or regulations regarding or related to unemployment insurance, old age benefits, workers compensation, labor, personal injury or taxes of any kind. Page 3 of 11 ARTICLE VIII. INSURANCE The Engineer shall procure and cant', at its sole cost and expense through the life of this Agreement, except as otherwise provided herein, insurance protection as hereinafter specified, in form and substance satisfactory to the City, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. The Engineer shall obtain and maintain in full force and effect during the term of this Agreement, and shall cause each approved subcontractor or sub - consultant of the Engineer to obtain and maintain in full force and effect during the term of this Agreement, commercial general liability, professional liability and automobile liability coverage for non -owned and hired vehicles with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of A-VII or better. Except for Professional Liability, the policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Per Occurrence Single Limit: $1,000,000 General Aggregate Limit: $2,000,000 Professional Liability: Combined Single Limit: $2,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Employer's Liability: Per Occurrence Single Limit: $1,000,000 Worker's Compensation Per Occurrence Single Limit: $500,000 The Engineer shall further cause any approved subcontractor or sub -consultant to procure and carry, during the term of this Agreement, the insurance coverage required of Engineer herein, including without limitation, Professional Liability coverage, protecting the City against losses caused by the professional negligence of the approved subcontractor or sub -consultant. The City shall be listed as a primary and noncontributory additional insured with respect to the Automobile Liability and Commercial General Liability and shall be granted a waiver of subrogation under those policies. The Engineer shall provide a Certificate of Insurance to the City as evidence of coverage. The Certificate shall provide 30 days' notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy shall be included in the Certificate. The Engineer shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, the Engineer shall maintain said coverage throughout the term of this Agreement and Page 4 of 11 shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Engineer maintains said coverage. The Engineer may maintain Occupational Accident and Disability Insurance in lieu of Worker's Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the City. If at any time during the life of the Agreement or any extension hereof, the Engineer fails to maintain the required insurance in full force and effect, the Engineer shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Notwithstanding anything contained herein to the contrary, the professional liability policy shall be maintained at the Engineer's sole cost and expense. The retroactive date shall be no later than the commencement of the performance of this Agreement and the discovery period (possibly through tail coverage) shall be no less than 10 years after the completion of the Services provided for in this Agreement. The provisions of this Article VIII shall survive the termination or expiration of this Agreement. ARTICLE IX. EMPLOYMENT OF AGENTSIRETAINING OF CONSULTANTS The Engineer may employ or retain consultants, contractors, or third parties (any of which are referred to herein as "Sub -consultant"), to perform certain duties of Engineer, as set forth on Exhibit "A" attached hereto, under this Agreement, provided that the City approves the retaining of Sub -consultants. The Engineer is at all times responsible to the City to perform the Services as provided in this Agreement and the Engineer is in no event relieved of any obligation under this Agreement upon retainage of any approved Sub -consultant. Any agent and/or Sub -consultant retained and/or employed by the Engineer shall be required by the Engineer to carry, for the protection and benefit of the City and the Engineer and naming said third parties as additional insureds, insurance as described above required to be carried by the Engineer in this Agreement. The Engineer represents that such services are either under applicable value thresholds or are otherwise exempt from notice and/or bid requirements under Texas Law. ARTICLE X. CONFIDENTIALITY The Engineer shall retain all information received from or concerning the City and the City's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the City, unless otherwise required by law. ARTICLE XI. INDEMNITY THE ENGINEER SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Pagc 5 of t I ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF THE ENGINEER, ITS AGENTS, EMPLOYEES, AND1OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT ANDiOR THE USE OR OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. ARTICLE XII. COMPLIANCE WITH APPLICABLE LAWS The Engineer shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Agreement, and any amendments thereto. ARTICLE XIII. NOTICE A. General. Whenever notice from the Engineer to the City or the City to the Engineer is required or permitted by this Agreement and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand (in which case such notice shall be effective upon delivery); (2) facsimile (in which case such notice shall be effective upon delivery); or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Engineer's Address. The Engineer's address and numbers for the purposes of notice are: PondMedics, Inc., d/b/a dredgeSMART Trent Lewis, FPC PO Box 97 Gunter, TX 75058 Telephone: 972.334.0104 Email: trent@pondmedics.com C. City's Address. The City's address and numbers for the purposes of notice are: Kalee Robinson City of Lubbock P.O. Box 2000 1314 Avenue K Lubbock, Texas 79457 Telephone: 806.775.2672 Email: krobinson@mylubbock.us Page 6 of 11 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party as provided herein, referring specifically to this Agreement, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE XIV. CITY -PROVIDED DATA AND RESPONSIBILITIES Provision of Data. The City shall furnish the Engineer non -confidential studies, reports and other available data in the possession of the City pertinent to the Engineer's Services, so long as the City is entitled to rely on such studies, reports and other data for the performance of the Engineer's Services under this Agreement (the "Provided Data"). The Engineer shall be entitled to use and rely, so long as such reliance is reasonable, upon all such Provided Data. ARTICLE XV. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Agreement are inserted in this Agreement strictly for the parties' convenience in identifying the provisions to this Agreement and shall not be given any effect in construing this Agreement. B. Audit. The Engineer shall provide access to its corporate books and records to the City. The City may audit, at its expense and during normal business hours, the Engineer's books and records with respect to this Agreement between the Engineer and the City. C. Records. The Engineer shall maintain records that are necessary to substantiate the services provided by the Engineer. D. Assignability. The Engineer may not assign this Agreement without the prior written approval of the City. E. Successor and Assigns. This Agreement binds and inures to the benefit of the City and the Engineer, and in the case of the City, its respective successors, legal representatives, and assigns, and in the case of the Engineer, its permitted successors and assigns. F. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF Pagc 7 of 11 ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this Agreement and the application of such provision to persons andror circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Agreement, and duly authorized and executed by the Engineer and the City. I. Entire Agreement. This Agreement, including Exhibits "A" through "B" attached hereto, contains the entire agreement between the City and the Engineer, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. J. No Joint Enterprise. Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership or principal — agent relationship between the Engineer and the City. K. Documents Owned by City. Any and all documents, drawings and specifications prepared by Engineer as part of the Services hereunder, shall become the property of the City when the Engineer has been compensated as set forth in Article II, above. The Engineer shall make copies of any and all work products for its files. L. Notice of Waiver. A waiver by either the City or the Engineer of a breach of this Agreement must be in writing and duly authorized to be effective. In the event either party shall execute and deliver such waiver, such waiver shall not affect the waiving parry's rights with respect to any other or subsequent breach. M. Third Party Activities. Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than the City and the Engineer. N. Non -Appropriation. All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the services provided under the Agreement, the City will terminate the Agreement, without termination charge or other liability, on the last day of the then - current fiscal year or when the appropriation made for the then -current year for the services covered by this Agreement is spent, whichever event occurs first (the "Non -Appropriation Date"). If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Engineer on Pap 8 of 1 l thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this Agreement beyond the Non -Appropriation Date. O. Contracts with Companies Engaged in Business with Iran, Sudan, or Foreign Terrorist Organization Prohibited. Pursuant to Section 2252.152 of the Texas Government Code, prohibits the City from entering into a contract with a vendor that is identified by The Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization P. No Boycott of Israel. Pursuant to Section 2271.002 of the Texas Government Code, a) This section applies only to a contract that: (1) is between a governmental entity and a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity. (b) A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. Q. Texas Government Code 2274. By entering into this Agreement, Contractor verifies that: (1) it does not, and will not for the duration of the contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If Contractor is a company with 10 or more full-time employees and if this Agreement has a value of at least $100,000 or more, Contractor verifies that, pursuant to Texas Government Code Chapter 2274, it does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and will not discriminate during the term of the contract against a firearm entity or firearm trade association. R. Contractor represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the contract. If Contractor is a company with 10 or more full-time employees and if this Agreement has a value of at least $100,000 or more, Contractor verifies that, pursuant to Texas Government Code Chapter 2274, it does not boycott energy companies; and will not boycott energy companies during the term of the Agreement. This verification is not required for an agreement where a governmental entity determines that these requirements are inconsistent with the governmental entity's constitutional or statutory duties related to the issuance, incurrence, or management of debt obligations or the deposit, custody, management, borrowing, or investment of funds. S. Texas Public Information Act. The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Contractor agrees to: (1) preserve all contracting information related to the contract as provided by the records retention Pap 9 of 11 requirements applicable to the governmental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. T. Professional Responsibility. All architectural or engineering services to be performed shall be done with the professional skill and care ordinarily provided by competent architects or engineers practicing under the same or similar circumstances and professional license. Page 10 of 1 l EXECUTED as of the Effective Date hereof. CITY OF LUBBOCK A EST: 'A. Courtney Paz, City Secretary APPROVED AS TO CONTENT: olby VanGundy, Director Parks and Recreation APPROVED AS TO FORM: Rachael Foster, Asisiant City Attorney TRA Finn dredgeSMAR� By: Trent Lewis, FPC Email: trent&ondmedics.com Page 11 of 11 dredgeSMA the dredging equation, solved. PROFESSIONAL SERVICES AGREEMENT (PSA) CATTAIL CONTROL PLAN — CANYON LAKES THIS IS AN AGREEMENT effective as of May 31, 2023 Between: City of Lubbock, TX (Owner) C/O Kalee Robinson Park Development Superintendent And dredgeSMART (Engineer). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Project Name: Canyon Lakes System, Lubbock, TX —Cattail Control Plan Project Number. TBD Owner Number: TBD Engineer's Services under this Agreement are generally Identified as follows: See attached Exhibit A: TASK, FEE AND SCOPE SUMMARY and Exhibit A: Work Area Basis of Payment A Using the procedures set forth in this agreement, Owner shall pay Engineer as follows: B. Fees identified in Exhibit A are lump sum, flat fees for the work proposed. Additional, exhibit reproduction, coordination, meetings, travel and communications may be subject to hourly or reimbursable rates. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: BY Title Staff Biologist and FAA Licensed sUAS Pilot: BY: dredgeSMART Trent Lewis, FPC. Owner Signature Date Signature Date Address dredgeSMART :: PO Box 97, Gunter, TX 75058 Phone: 972.334.0104 :: TOPE Finn 08072 Owner and Engineer further agree as follows: Bask Agreement and Autfrorkation to Proceed: Engineer shall provide, or cause to be provided, the services set forth in this Agreement (contact). If authorized by Owner, or if required because of changes In the Project, Engineer shall furmish services to addition to those set forth above. Execution of this agreement will be recognized as authorization to proceed with professional services. Payment Procedures: Invoices: Engineer shag prepare invoices and submit the invoices to Owner every two (2) weeks. Invoices are due and payable within 15 days of recaipL Invokes wfd Include dw amount due based on percentage compledim of one or more tasks as outlined in fie Exhibits. If Owner falls to make any payment due Engineer for services and expenses within 30days after receipt of Engineers invoice. then the amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day. Termination: Either the Owner or Engineer may terminate this contract by giving 14 days written notice to the other party. In such event Owner shall promptly pay Engineer in full for all work or work related product authorized to -date and perforated prior to the date of termination. Successors, Assigns, and Beneficiaries: Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators, and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement Neither Owner nor Engineer may assign, sublet or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment no assignmenlwB release or discharge the assignor from any duty or responsibility under this Agreement. Unless expressly provided otherwise, nothing in this Agreement shall be construed to create, impose, or give rise toany duty owed by Owner or Engineer to any contractor, subcontractor, supplier, other individual orentity, orto any surety for or employee of any of them All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. In the event that the Engineer is not licensed or registered in another jurisdiction to provide services under this contract. Engineer may assign, with owners consent, this contract for professional services to an entity related to the Engineer and qualified to provide professional services in that jurisdiction. General Consideration: The standard of care for all professional engineering and related services performed or fumishhed by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under skrriblr circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineers services. Subject to the foregoing standard of care, Engineer and its consultants may use or rely upon design elements and intormation ordnartly or customarily furnished by others. including. but not limited to, specialty contractors. manufacturers, govemmententifies, suppliers, and the publishers of technical standards. In the event the project is put on hold or work is put on hold for a period of two (2) months or more. Engineer shag have the right to renegotiate fees and services. In the event a project is restarted after a period of two (2) months or more Engineer shall have the right to negotiate "restart" fees to update the design and restart services. Construction Services: The Engineer may review construction activity for general conformance to the constriction documents from time to time. Engineer shag riot at any time supervise, direct. control, or have authority over any contractor's wok nor sha'.I Engineer have authority over or be responsible for the means, methods, techniques, sequences. or procedures of construction selected or used by any contactor, or the safety precautions and programs incident thereto, for security or safety at the Project site, nor for any failure of a contractor to comply with laws and regulations applicable to such contractor's furnishing and performing of its work. This Agreement is to be governed by the law of the state or jurisdiction in which the Project is located. Engineer neither guarantees the perto rmance of any contractor nor assumes responsibility for any contractor's failure to furnish and perform its work in accordance with the contract between Owner and such contractor. Engineer is not responsible for variations between actual construction bids or costs and Engineers opinions or estimates regarding construction costs. Engineer shall not be responsible for the acts or omissions of any contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineers own employees) at the Project site or otherwise furnishing or performing any construction work; or for any decision made regarding the construction contract requirements, or any application, interpretation, or clarification of the construction contract other than those made by Engineer. Ownership of Documents: If requested by Owner. Engineer will transfer the electronic and paper dataimaterial, design, spedfications, and other documents furnished by or through Owner once full and complete payment is received for services perforated to -date. The engineering documents are for use solely with rasped to contracted project scope. Engineer shall be deemed the author of the work product and shag retain common law, common statutory, and any other reserved rights. Any reuse of the work product without written consent by Engineer for any related purpose for the project shall be at the Owners sole risk The Engineer shall not incur any lability or legal exposure to the company, members, employees, officers, directors, agents, insurers, partners, and sub -consultants in the event the data Is misused. LImRs of Liability: To the fullest extent permitted by law. Owner and Engineer (1) waive against each other, and the others employees, officers. directors, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages including loss of use, profit or revenue, arising out of, resulting from, or in any way related to the Project, and(2) agree that Engineer's total liability to Owner under this Agreement shall be limited to the total amount of insurance Engineer has secured at time of this agreement. Dispels Resolution: Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute. if negotiations are unsuccessful in resolving the dispute, then the dispute shag be mediated. If mediation is unsuccessful, then the parties may exercise their rights at law. Direct Expenses: Dired expenses, including but not limited to, standard mileage rates, material and printing incurred on or direly forthe project will be on the basis of actual charges when provided by commercial sources or on the basis of usual commercial charges when furnished by the Engineer. Additional Services: For additional services provided by the Engineer, Owner shall pay Engineer an amount equal to the cumulative hours charged to the Project by each class of Engineers employee times standard hourly rates for each applicable tilling class; plus reimbursable expenses and Engineers consultants' charges, if any. Engineers standard hourly rates are attached. Outside technical or professional services and their reimbursable expenses ofarranged and invoiced through this agreement shall be reimbursed at cost plus 15-percent. Total Agreement: This Agreement onduding any expressly incorporated attachments), constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented or modified by a duty executed written WI ument dredgeSMART :: PO Box 97, Gunter, TX 76058 Phone: 972.334.0104 :: TBPE Finn d8072 dredgeSMART the dredging equation, solved. EXHIBIT A — City of Lubbock, TX SCOPE OF SERVICES CANYON LAKES SYSTEM CATTAIL CONTROL PLAN dredgeSMART (dS) will provide the following services for a proposed project within the delineated Limits of Work (body of water) as indicated in Exhibit B, within the City Limits of Lubbock, TX and the Canyon Lake System. Prior to beginning work and if available, dS will be provided a current comprehensive boundary, topographic survey, and all electronic files previously prepared to be utilized for the work described in this agreement dS will be entitled to rely on this data as being true and accurate in all respects and assume no liability for errors or conflicts that may arise as a resultof inaccurate or incomplete information on provided files. INCLUDED SCOPE OF SERVICES A. For details of scope, sequence and cost, please refer to Exhibit A: Task, Scope and Fee Summary. REIMBURSABLE EXPENSES: The following items shall be considered as reimbursable expenses to this contract • Printing/reproduction services. • Travel/mileage • Equipment usage fees • Courier/overnight fees • Al City or agency required fees including submittal and review fees EXCLUSIONS: (Can be provided at agreed upon additional cost if requested by client.) a. Topographical/Land Survey Services b. Civil/Dredging Design Services C. Traffic studies d. Storm Water Pollution Prevention Plan (SWPPP) e. Subsurface Utility Engineering (SUE) f. Geotechnical Services g. Environmental Services dred SMART :: PO Box 97, Gunter, TX 75058 Phone: 972.334.0104 :: TBPE Firm 08072 Page 3 of 5 dredgeSMART the dredging equation, solved. EXHIBIT A: TASK, SCOPE AND FEE S U M M A R Y (cont'd) PHASE.TASK DESCRIPTION LUMP SUM FEE T1.1a GIS Data and Budget Sharing from Client T1.1b Low Altitude Aerial Survey (LAAS) for mapping current conditions of Canyon Lakes System T1.2 Team meeting to discuss highest priority areas T1.3 Stream Morphology Study to determine control and protection zones T1.4 Cattail Control Plan (incl phases, if needed) Chemical and mechanical means with schedule/sequencing of tasks/activities T1.5 Project Estimated Opinion of Cost T1.6 Lubbock Parks and Rec Training for cattail maintenance after renovation is complete TOTAL PLANNING TOTAL $89,400 dredgeSMART :: PO Box 97, Gunner, TX 75058 Phone: 972.334.0104 :: TBPE Firm 08072 Page 4 of 5 dredge`'NART the dredging equation, solved. EXHIBIT B: Limits of Work L. Cattail Invasion in Canyon Lake System N A DMIn"ted cauft Palk BO my dredgeSMART :: PO Box 97, Gunter, TX 76058 Phone: 972.334.0104 :: TOPE Firm #8072 Page 5 of 6