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HomeMy WebLinkAboutResolution - 2019-R0329 - Parkhill Smith & Cooper - 09/24/2019 Resolution No. 2019-RO329 Item No. 6.6 September 24, 2019 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. 14829 for Pioneer Park Improvements as per RFQ 19-14829-.IM, by and between the City of Lubbock and Parkhill, Smith & Cooper, Inc., of Lubbock, Texas, 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 September 24, 2019 Lj DANIEI, M. POPE, AWAYOR ATTEST: eb ca Garza, City Secr tart' APPROVED AS TO CONTENT: D. Blu Kostelich, Chief Financial Officer APPROVED AS TO FORM: — —X " Ry, Bro stant City Attorney ccdocs/RES.Contract I4829—Pioneer Park Improvements August 23, 2019 Resolution No. 2019-RO329 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § This Professional Service Agreement ("Agreement") Contract No. 14829 is entered into this 24th day of September 2019, is by and between the City of Lubbock(the "City"), a Texas home rule municipal corporation, and Parkhill Smith and Cooper(the" Engineer"), a Texas corporation. WITNESSETH WHEREAS, The City desires to contract with the Engineer to provide professional services for the development, design plans and specifications for improvements to Pioneer(Roy Furr) Park, (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 two years. 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 thrOLILf its governing body. Page 1 of 11 ARTICLE II. 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 $120,000.00, 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. Page 2 of 10 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 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 Page 3 of 10 related to unemployment insurance, old age benefits, workers compensation, labor, personal injury or taxes of any kind. ARTICLE VIII. INSURANCE The Engineer shall procure and can-y, 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 Iiability 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 mininnum limits of liability: Commercial General Liability: Per Occurrence Single Limit: $1,000,000 General Aggregate Limit: $2,000,000 Professional Liability: Combined Single Limit: $1,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Employer's Liability: Per Occurrence Single Limit: $1,000,000 The Engineer shall further cause any approved subcontractor or sub-consultant to procure and cagy, 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. Page 4 of 10 The Certificate shall provide 30 day's 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 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 Iater 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 AGENTS/RETAINING 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. Page 5 of 10 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, 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, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR 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 (I) 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. Page 6 of 10 B. Engineer's Address. The Engineer's address and numbers for the purposes of notice are: Parkhill, Smith & Cooper Inc. Mr. Michael Chad Davis, ASLA 4222 84`' Street Lubbock,TX 79423 Telephone: 806.473.2200 C. City's Address. The City's address and numbers for the purposes of notice are: Cheryl Brock City of Lubbock P.O. Box 2000 1625 13th Street Lubbock. Texas 79457 Telephone: 806.775.2019 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. Page 7 of 10 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 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 and/or 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. 1. 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. Page 8 of 10 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 party'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 fiords are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Engineer on 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. SB 252. SB 252 prohibits the City frorn 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 2270.002 of the Texas Government Code, Respondent certifies that either(1) it meets an exemption criteria under Section 2270.002; or(ii) it does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. Respondent shall state any facts that make it exempt from the boycott certification in its Response. Page 9 of 10 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 Citv. 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. TFIIS 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 ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTENIPLATED 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 circu►nstance, the remainder of this Agreement and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. Ff. 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 ►natters contemplated herein. Page 8 of 10 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 11, 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 party'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 A-reement 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 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. SB 252. SB 252 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 Fran, Sudan or a foreign terrorist organization. P. No Boycott of Israel. Pursuant to Section 2270.002 of the Texas Government Code, Respondent certifies that either(i) it meets an exemption criteria under Section 2270.002; or(ii) it does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. Respondent shall state any facts that make it exempt from the boycott certification in its Response. Page 9 of 10 REMAINDER OF PAGE LEFT BLANK INTENTIONALLY EXECUTED as of the Effective Date hereof. CITY OF LUBBOCK DANIEL M. POPE, MAYOR ATTEST: CQ J oj'�Zj'o )K�� Rebek-ca Garza, City Secret ry u APPROVED AS TO CONTENT: Cheryl Brock, Director of Financial Planning and Analysis APPROVED AS TO FORM: R �n Br oke, Assist nt City Attorney Firm Parkhill, Smith & Cooper Ii C " By &YyJ ichael CLA Davis,AMLA Page 10 of 10 PARKHILLSMITH&COOPER Exhibit A 4222 851h Street 1-M Lubbock.Texas;9423 806.473.2200 August 23, 2019 Attachment A Ms. Bridget Faulkenberry Director Parks and Recreation Department City of Luboock 1611 10'h Street P.O. Box 79457 Lubbock, TX 79457 RE: Agreement for Professional Services for Lubbock Pioneer Park Dear Ms. Faulkenberry; Parkhill, Smith & Cooper, Inc. (AIE) is pleased to have the opportunity to provide professional design services to The City of Lubbock (OWNER)for Improvements to Pioneer Park (Project). We understand the Scope of Services you require to be: The City of Lubbock is seeking professional design services for Landscape Architecture, Architecture and Engineering services to develop a design and the plans and specifications for improvements to Lubbock's Pioneer (Roy Furr) Park at Mac Davis Lane and Avenue U. The first deliverable will consist of a complete redesign of the park with an Opinion of Probable Cost and a plan view rendering. The second set of deliverables will be a set of stamped construction documents that include: • Demolition Plan • Grading & Drainage Plan • Site Plan • Electrical Plan • Irrigation Plan • Planting Plan • Details All drawings and specifications must be stamped by respective professionals: Professional Engineer, Architect, Professional Landscape Architect, and Licensed Irrigator. The third set of deliverables will be a specifications document and final Opinion of Probable Cost. The awarded firm will work closely with the City's Park Development Department throughout the process to ensure the city's goals and requirements are met. This will entail weekly or biweekly meetings during the initial design phase. C:1Userslcdavis\Desktoplworking\Attachment A PSC Agreement for City of Lubbock Pioneer Park.docm Abilene Albuquerque Amarillo Arlington Austin EI Paso Frisuu LaS Nues Lubbcuk Midland team-psu.rom The City of Lubbock Page 2 August 23, 2019 Based on this scope Parkhill, Smith & Cooper proposes the following services: 1. The A/E will review the program furnished by the Owner to ascertain the requirements of the Project and will arrive at mutual understanding of such requirements with the Owner. Based on the mutually agreed upon program, schedule and construction budget requirements, the A/E will prepare for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. 2. The A/E will submit to the Owner a preliminary Opinion of Probable Construction Cost based on current area, volume and other unit costs. 3. Based on the approved Schematic Design Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the A/E will prepare, for approval by the Owner, Design Development Documents setting forth the final configuration of the buildings and the products to be used for the construction of the Project. 4. Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the A/E will prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth the requirements for the construction of the Project. 5. The A/E will assist the Owner in the preparation of necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the Owner and the Contractor. 6. The A/E will advise the Owner of any adjustments to previous Opinion of Probable Construction Cost required by changes to the scope or market conditions. 7. The A/E will inform the Owner to the best of their knowledge and will assist the Owner in connection with the Owner's responsibility for filing documents required for approval of governmental authorities having jurisdiction over the Project. 8. The A/E, following the Owner's approval of the Construction Documents and of the latest Opinion of Probable Cost, will assist the Owner in obtaining bids or negotiating proposal and assist in awarding and preparing contracts for construction of the Project. 9. The A/E will be the representative of and will advise and consult with the Owner during construction until the final payment to the Contractor is due. The A/E will have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written instrument. 10. The A/E will visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and A/E in writing to become familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, the A/E will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of on-site observation as an architect, interior designer, landscape architect or engineer, the A/E will keep the Owner informed of the progress and quality of the Work. 11. Based on the A/E's observations and evaluations of the-Contractor's Applications for Payment, the A/E will review and certify the amounts due the Contractor. The City of Lubbock Page 3 August 23, 2019 Services specifically excluded from our scope of services include, but are not limited to, the following: ■ Surveys and Geotechnical Reports ■ Asbestos and Hazardous Materials Studies ■ Third-party Independent Construction Inspection Services ■ Construction Material Testing ■ Texas Department of Health Demolition Notification A tentative schedule for submitting our work for review is as follows: Upon the receipt of a full property survey including topographic information PSC proposes the following schedule: Schematic Design Phase—45 Calendar Days Design Development Phase— 30 Calendar Days Construction Documents Phase—90 Calendar Days Bid Phase Services — Days as required by the City Of Lubbock, Suggested 60 Calendar Days Construction Administration Phase— 12 Months Changes to the above schedule may become necessary due to changes in scope or other circumstances beyond the A/E's control. Our fees for the services described above are based on a total construction contract value of$1.2 million and are a lump sum amount of $120,000. These fees will be billed on a percentage complete method. Should the scope of services described above change or,the construction budget change more than 5%, during the Project, the lump sum amount will be adjusted either up or down by a mutually agreed upon amount or based on an hourly rate method using the A/E's standard hourly rate schedule attached hereto. Optional supplemental services may include "fly-through" animations, video presentations, exterior and interior renderings (photo-realistic), printed brochures and fundraising collateral. These costs will be determined based on the desired level of presentation materials required and billed as reimbursable expenses. Many issues such as the Americans with Disabilities Act (ADA), Texas Accessibility Standards (TAS), and hazardous materials are of great concern to both building owners and to architects, interior designers, landscape architects and engineers. The enclosed Standard Conditions gives a brief explanation of several of those issues and defines the roles and responsibilities for each party involved in this agreement. We will be glad to discuss these issues with you at your convenience. You may indicate your acceptance of this agreement and the attached Standard Conditions by returning one signed copy of this letter to our office. Unless another date is specified, we will consider receipt of the letter as authorization to proceed. The City of Lubbock Page 4 August 23, 2019 We appreciate the opportunity to provide professional services to you and look forward to the successful completion of your project. If you have any questions please do not hesitate to call us. Sincerely, PARKHILL, SMITH & COOPER, INC. (AIE) The City of Lubbock (OWNER) i By 004 / Accented By: Cheryl Brock Michael Chad Davis, ASLA Firm Principal Title:Director of Financial Planning& Analysis Date: 09/24/2019 IN DUPLICATE Enclosures "The Texas Board of Architectural Examiners, P.O. Box 12337,Austin, Texas 78711-2337 or 333 Guadalupe, Suite 2-350, Austin, Texas 78701-3942, (512) 305-9000, www.tbae.state.tx.us has jurisdiction over complaints regarding the professional practices of persons registered architects, interior designers and landscape architects in Texas." OWNER: The City of Lubbock, TX DATE: _ August 23, 2019 STANDARD CONDITIONS: OWNER and AIE (Parkhill, Smith & Cooper, Inc.) agree that the following Provisions shall be part of the Agreement. ARTICLE 1. SERVICES 1.1 Payments are due and payable pursuant to Texas Prompt Payment Act,Texas Government Code 2251. 1.2 SERVICES DURING CONSTRUCTION The A/E shall not supervise, direct or have control over the Contractor's work nor have any responsibility for the construction means, methods, techniques, sequences or procedures selected by the Contractor nor for the Contractor's safety precautions or programs in connection with the Work. These rights and responsibilities are solely those of the Contractor. The OWNER agrees that the general contractor shall be solely responsible for jobsite and worker safety and warrants that this intent shall be carried out in the OWNER's contract with the General Contractor. The A/E shall not be responsible for any acts or omissions of the Contractor,any subcontractor,any entity performing any portions of the Work or any agents or employees of any of them. The A/E does not guarantee the performance of the Contractor and shall not be responsible for the Contractor's failure to perform its Work in accordance with the Contract Documents or any applicable laws, codes, rules or regulations. 1.3 ESTIMATES OR OPINIONS OF PROBABLE CONSTRUCTION COST In providing estimates or opinions of probable construction cost,the OWNER understands that the A/E has no control over the cost or availability of labor, equipment or materials,or over market conditions or the Contractor's method of pricing,and that the A/E's estimates or opinions of probable construction costs are made on the basis of the A/E's professional judgment and experience.The AIE makes no warranty,express or implied,that the bids or the negotiated construction cost will not vary from the A/E's estimates or opinions of probable construction cost. 1.4 HAZARDOUS MATERIALS As used in this Agreement, the term hazardous materials shall mean any substances, including without limitation asbestos, toxic or hazardous waste,PCBs,combustible gases and materials,petroleum or radioactive materials (as each of these is defined in applicable federal statutes)or any other substances under any conditions and in such quantities as would pose a substantial danger to persons or property exposed to such substances at or near the project site. Both parties acknowledge that the A/E's scope of services does not include any services related to the presence of any hazardous or toxic materials.In the event the A/E or any other person or entity involved in the project encounters any hazardous or toxic materials,or should it become known to the AIE that such materials may be present on or about the jobsite or any adjacent areas that may affect the performance of the A/E's services,the AIE may,at its sole option and without liability for consequential or any other damages, suspend performance of its services under this Agreement until the OWNER retains appropriate qualified consultants andfor contractors to identify and abate or remove the hazardous or toxic materials and warrants that the jobsite is in full compliance with all applicable laws and regulations. 1.5 ACCESSIBILITY The OWNER acknowledges that the requirements of the Americans with Disabilities Act(ADA),Texas Accessibility Standards(TAS),for projects in the State of Texas,and other federal,state and local accessibility laws,rules,codes,ordinances,and regulations will be subject to various and possibly contradictory interpretations. The OWNER further acknowledges that the ADA is a Civil Rights law and not a building code,and does not have prescriptive language.The A/E,therefore,will use its reasonable professional efforts and judgment to interpret applicable accessibility requirements in effect as of the date of the execution of this Agreement,and as they apply to the Project. The AIE, however, cannot and does not warrant or guarantee that the OWNER's Project will comply with all interpretations of the accessibility requirements and/or the requirements of other federal,state and local laws,rules,codes,ordinances and regulations as they apply to the Project. All projects in the State of Texas must be submitted to the Texas Department of Licensing and Regulations (TDLR)—Elimination of Architectural Barriers (EAB) Division for plan review for compliance with TAS requirements. The AIE will include in the design of the Project all changes that are the result of the TDLR plan review.After construction of the project TDLR requires an inspection of the project for compliance confirmation.However,the A/E cannot and does not warrant or guarantee that different rules and or interpretation may be applied to the OWNER's Project at the time of the final TDLR inspection.Compliance with changes required by the TDLR final inspection that were not mentioned in the TDLR plan may be required. 1.6 SERVICES BY OWNER OWNER will provide access to work site,obtain applicable permits,provide all legal services in connection with the project,and provide environmental impact reports and energy assessments unless specifically included in the Scope of Work. OWNER shall pay the costs of checking and inspection fees, zoning application fees,soils engineering fees, testing fees, surveying fees, and all other fees, permits, bond premiums,and all other charges not specifically covered by the terms of this Agreement. Page 1 of 4 1.7 OWNERSHIP OF DOCUMENTS All reports,drawings,specifications,computer files,field data,notes,data on any form of electronic media,and other documents prepared by the A/E as Instruments of Service shall remain the property of the A/E.The A/E shall retain a common law,statutory and other reserved rights,including copyrights. The AIE grants to the OWNER a nonexclusive license to reproduce the AIE's Instruments of Service solely for the purpose of constructing, using and maintaining the Project.The OWNER shall not use the Instruments of Service for other projects without prior written agreement ofthe A/E. The OWNER shall not make any modification to the Instruments of Service without the prior written authorization of the AIE.The OWNER agrees,to the fullest extent permitted by law,to indemnify and hold harmless the A/E against any damages, liabilities or costs, including reasonable attorney's fees and defense costs,arising from or allegedly arising from or in any way connected with the unauthorized reuse or modification of the Instruments of Service by the OWNER or any person or entity that acquires or obtains the Instruments of Service from or through the OWNER without the written authorization of the AIE. 1.8 DELIVERY OF ELECTRONIC FILES In accepting and utilizing any form of electronic media generated and furnished by the AIE,the OWNER agrees that all such electronic files are Instruments of Service of the AIE.The OWNER is aware that differences may exist between the electronic files delivered and the printed hard-copy Contract Documents. In the event of a conflict between the original signed Contract Documents prepared by the A/E and electronic files,the original signed and sealed hard-copy Contract Documents shall govern. Electronic files created by the A/E through the application of software licensed for the sole and exclusive use by the A/E will be furnished to the OWNER in read-only format.The OWNER is responsible to obtain and maintain software licenses as appropriate for the use of electronic files provided by the A/E. Under no circumstances shall delivery of electronic files for use by the OWNER be deemed a sale by the A/E, and the A/E makes no warranties, either express or implied, of merchantability and fitness for any particular purpose. In no event shall the A/E be liable for indirect or consequential damages as a result of the OWNER'S use or reuse of the electronic files. ARTICLE 2.GENERAL PROVISIONS 2.1 APPLICABLE LAW This agreement shall be interpreted and enforced according to the laws of the State of Texas,unless agreed otherwise. 2.2 PRECEDENCE OF CONDITIONS Should any conflict exist between the terms herein and the terms of any purchase order or confirmation issued by OWNER,the terms of these Standard Conditions shall prevail. 2.3 ASSIGNMENT Neither party to this Agreement shall transfer,sublet or assign any rights or duties under or interest in this Agreement, including but not limited to monies that are due or monies that may be due, without the prior written consent of the other party. Subcontracting to subconsultants,normally contemplated by the A/E as a generally accepted business practice,shall not be considered an assignment for purposes of this Agreement. 2.4 AMENDMENTS This agreement may be amended only by a written instrument,signed by both OWNER and A/E,which expressly refers to this agreement. 2.5 DELAYS The OWNER agrees that the A/E is not responsible for damages arising directly or indirectly from any delays for causes beyond the A/E's control. For purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes; severe weather disruptions or other natural disasters or acts of God; fires, riots,war or other emergencies;failure of any government agency to act in timely manner; failure of performance by the OWNER or the OWNER's contractors or consultants; or discovery of any hazardous substances or differing site conditions. In addition,if the delays resulting from any such causes increase the cost or time required by the A/E to perform its services in an orderly and efficient manner,the A/E shall be entitled to a reasonable adjustment in schedule and compensation. 2.6 INSURANCE The A/E agrees to provide Professional Liability Insurance and General Liability Insurance during the scope of the services provided for this project and for a period of 3 years after the completion of services. 2.7 MERGER: WAIVER: SURVIVAL Except as set forth by Amendment, this Agreement constitutes the entire and integrated Agreement between the parties hereto and supersedes all prior negotiations,representations and/or agreements,written or oral. One or more waiver of any term,condition or other provision of this Agreement by either party shall not be construed as a waiver of a subsequent breach of the same or any other provisions. If any term or provision of this Agreement is held to be invalid or unenforceable under any applicable statute or rule of law,such holding shall be applied only to the provision so held,and the remainder of this Agreement shall remain in full force and effect. Page 2 of 4 2.8 TERMINATION In the event of termination of this Agreement by either party,the OWNER shall within 15 calendar days of termination pay the AIE for all services rendered and all reimbursable costs incurred by the A/E up to the date of termination,in accordance with the payment provisions of this Agreement. The OWNER may terminate this Agreement for the OWNER's convenience and without cause upon giving the AIE not less than seven calendar days'written notice. Either party may terminate this Agreement for cause upon giving the other party not less than seven calendar days'written notice for any of the following reasons: • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; • Suspension of the Project of the A/E's services by the OWNER for more than 90 calendar days,consecutive or in aggregate; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project,and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 2.9 CONSEQUENTIAL DAMAGES Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law,neither the OWNER nor the A/E,their respective officers,directors, partners,employees,contractors or subconsultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to the project or this Agreement.This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income,loss of reputation and any other consequential damages that either party may have incurred from any cause of action including negligence,strict liability, breach of contract and breach of strict or implied warranty. Both the OWNER and the A/E shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in this project. 2.10 THIRD-PARTY BENEFICIARIES Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the OWNER or the A/E.The A/E's services under this Agreement are being performed solely for the OWNER's benefit,and no other party or entity shall have any claim against the A/E because of this Agreement or the performance or nonperformance of services hereunder. The OWNER and A/E agree to require a similar provision in all contracts with contractors,subcontractors,subconsultants,vendors and other entities involved in this Project to carry out the intent of this provision. 2.11 MAINTENANCEM/EAR AND TEAR Both the OWNER and A/E acknowledge that the OWNER,and only the OWNER,is responsible for maintenance,wear and tear on the project upon substantial completion. The OWNER is responsible for providing routine inspections and maintenance of the project to maintain a safe and weather tight facility.Should the OWNER fail to provide routine inspections and maintenance,and damage occur to the project,the A/E is not responsible for any such resultant damage. ARTICLE 3. 3.1 STANDARD OF CARE In providing services under this Agreement, the NE shall perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the same or similar locality.The A/E makes no warranty,express or implied,as to its professional services rendered under this Agreement. 3.2 DISPUTE RESOLUTION OWNER and A/E agree to negotiate all disputes between them in good faith for a minimum of 30 days from the date of notice. Should such negotiations fail,the OWNER and NE agree that any dispute between their arising out of, or relating to, this Agreement shall be submitted to nonbinding mediation prior to exercising any other rights under law,unless the parties mutually agree otherwise. 3.3 BETTERMENT If,due to an error or an omission by the A/E,any required item or component of the project is omitted from the Construction Documents, the A/E shall not be responsible for paying the cost to add such item or component to the extent that such item or component would have been otherwise necessary to the project or otherwise add value or betterment to the project. END PARKHILL,SMITH&COOPER, INC.(A/E) City of Lubbock(OWNER) By �� Accepted By:Cheryl Brock Michael Chad Davis,ASLA Financial Planning& Firm Principal Title: g Analysis Date: August 23,2019 Date: 09/24/2019 Page 3 of 4 Parkhill, Smith & Cooper, Inc. Hourly Rate Schedule January 1, 2019 through December 31, 2019 Client:The City of Lubbock,Texas Project: Pioneer Park Improvements Agreement Date:August 23,2019 Location:Mac Davis Lane and Avenue U, Lubbock,TX HOURLY HOURLY HOURLY CLASSIFICATION RATE CLASSIFICATION RATE CLASSIFICATION RATE SUPPORT STAFF 1 $52.00 PROFESSIONAL LEVEL II PROFESSIONAL LEVEL V Engineering Student Mechanical&Electrical $115.00 Mechanical&Electrical $198.00 Design Student Civil&Structural $114.00 Civil&Structural $194.00 Landscape Architect Student Architect $110.00 Architect $181.00 Interior Design Student Architect Intern Senior Architect Landscape&Interior $102.00 Landscape& Interior $149.00 Design Intern Landscape Project Manager SUPPORT STAFF If $89.00 Architect Intern Senior Landscape Architect Engineering Technician Technologist Senior Interior Designer Engineering Student Resident Project Representative Resident Project Representative Design Technician Clerical Supervisor CADD Survey Technician PROFESSIONAL LEVEL VI Administrative Assistant PROFESSIONAL LEVEL III Mechanical&Electrical $224.00 Project Assistant Mechanical&Electrical $137.00 Civil&Structural $215.00 Word Processor Civil&Structural $134.00 Architect $203.00 File Specialist Architect $125.00 Landscape&Interior $180.00 Architect Intern Studio Leader Landscape&Interior $112.00 Senior Project Manager SUPPORTSTAFF 111 $98.00 Interior Design Intern Senior Practice Leader Engineering Technician Landscape Architect Intern Surveyor Design Technician Technologist Resident Project Representative CADD Resident Project Representative Administrative Assistant Project Assistant PROFESSIONAL LEVEL VII PROFESSIONAL LEVEL IV Mechanical&Electrical $241.00 PROFESSIONAL LEVEL I Mechanical&Electrical $162.00 Civil&Structural $235.00 Mechanical&Electrical $101.00 Civil&Structural $159.00 Architect $225.00 Civil&Structural $101.00 Architect $148.00 Landscape&Interior $202.00 Architect $101.00 Professional Architect Operations Director Architect Intern Project Architect Sector Director Landscape&Interior $97.00 Landscape&Interior $123.00 Interior Design Intern Professional Landscape Architect Landscape Architect Intern Professional Interior Designer Planner Project Landscape Architect Survey Technician Project Interior Designer Technologist Technologist Resident Project Representative Resident Project Representative Expenses:Reimbursement for expenses as listed,but not limited to,incurred in connection with services,will be at cost plus 15 percent for items such as: 1. Maps,photographs,postage,phone,reproductions,printing,equipment rental,and special supplies related to the services. 2. Consultants,soils engineers,surveyors,contractors,and other outside services. 3. Rented vehicles,local public transportation and taxis,road toll fees,travel,and subsistence. 4. Special orjob-specific fees,insurance,permits,and licenses applicable to work services. S. Mileage at IRS-approved rate. Rate for professional staff for legal proceedings oras expert witnesses will be a rate one-and-a-half times these Hourly Rates.Excise and gross receipt taxes,if any, will be added as an expense. Foregoing Schedule of Charges is incorporated into the Agreement for Services provided,effective January 1,2019 through December 31,2019, After December 31,2019,invoices will reflect the Schedule of Charges currently in effect. CERTIFICATE OF INTERESTED PARTIES FORM 1.295 1 0f 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2019-539257 Parkhill, Smith&Cooper, Inc. Lubbock,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 09/12/2019 being filed. City of Lubbock Date Acknowledged: 09/12/2019 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. RFQ 19-14829-JM Engineering Services for Pioneer Park Improvements 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling intermediary Moss, Mike W. Lubbock,TX United States X Hamilton,John T. Lubbock,TX United States X Edwards,Jay M. Midland,TX United States X Edwards,Zane Lubbock,TX United States X Hart, Daniel S. Austin,TX United States X Rangel, Ruppert S. Abilene,TX United States X Rapier,Joesph R. Lubbock,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is and my date of birth is My address is 1 , (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in County, State of on the day of ,20 (month) (year) Signature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.1.3a6aaf7d CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2019-539257 Parkhill, Smith&Cooper, Inc. Lubbock,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 09112/2019 being filed. City of Lubbock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. RFQ 19-14829-JM Engineering Services for Pioneer Park Improvements 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary Moss, Mike W. Lubbock,TX United States X Hamilton, John T. Lubbock,TX United States X Edwards,Jay M. Midland,TX United States X Edwards, Zane Lubbock,TX United States X Hart, Daniel S. Austin,TX United States X Rangel, Ruppert S. Abilene,TX United States X Rapier,Joesph R. Lubbock,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is Zane Edwards, PE and my date of birth is My address is 4222 85th Street Lubbock Texas, 79423 USA (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in Lubbock County, State of Texas on the 12 day of Sept. 20 19 . � (month) (year) 5at-e—, ��`A Ce� Si ure of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.1.3a6aaf7d