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HomeMy WebLinkAboutResolution - 2014-R0077 - Contract - DFW Conulting Group Inc.- LPSIA Fire Alarm System - 02/27/2014RESOLUTION 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, a Professional Services Contract for Architectural/Engineering Services for Lubbock Preston Smith International Airport Terminal Building Fire Alarm System Improvements, by and between the City of Lubbock and DFW Consulting Group, Inc., 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 February 27, 2014 GL ROBERTSON, MAYOR ATTEST: Reb tcca Garza, City Secret APPROVED AS TO CONTENT: Campbell, Interim Director of Aviation APPROVED AS TO FORM: C�44-0v� Chad Weaver, Assistant City Attorney vw:ccdocs/RES.PSC-DFW Consulting Group, Inc., 2.06.2014 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS COUNTY OF LUBBOCK § This Agreement ("Agreement"), effective as of the,VALyof 2014, is by and between City of Lubbock, Texas ("City"), a Texas hom rule munici 1 corporation, and DFW Consulting Group, Inc., ("Engineer"), a professional corporation authorized to conduct business in Texas. WITNESSETH WHEREAS, the City desires to obtain professional Architectural/Engineering Services for Lubbock Preston Smith International Airport Terminal Building Fire Alarm System Improvements ("Activities"); and WHEREAS, Engineer has a professional staff experienced and 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 City and Engineer to be a fair and reasonable price; and WHEREAS, the City desires to contract with Engineer to provide professional engineering 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 and the RFQ-14-11582, which is incorporated herein by reference, the City and 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 twenty-four months, as set forth in Exhibit "A", attached hereto and made a part of this Agreement for all purposes. If the Engineer determines that additional time is required to complete the services, the City Manager, or his/her designee, may execute an agreement to grant up to an additional six months of time so long as the amount of the consideration does not increase. An amendment to this Agreement resulting in any increase in the consideration must be approved by the City acting through its governing body. Page 1 of 9 ARTICLE II. SERVICES AND COMPENSATION A. Engineer shall conduct all Activities and within such timeframes as set forth on Exhibit "A" attached hereto ("Services"). B. Engineer shall receive as consideration for the performance of the Services as set forth in Exhibit "A" attached here to and incorporated herein by reference based on hourly and unit rates, not to exceed $240,120. ARTICLE III. TERMINATION A. General. City may terminate this Agreement, for any reason or convenience, upon thirty (30) days written notice to Engineer. In the event this Agreement is so terminated, the City shall only pay Engineer for Services actually performed and costs and expenses incurred by Engineer up to the effective date of the termination. B. Termination and Remedies. In the event Engineer breaches any term and/or provision of this Agreement, the City shall notify Engineer in writing of such breach and allow Engineer five (5) working days to cure any such default. If default is not cured, City shall be entitled to exercise any right or remedy available to it by this Agreement, at law or equity, including without limitation, termination of this Agreement and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any other right or remedy and all other 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 document, this provision shall control. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. 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. Engineer has the corporate power to enter into and perform this Agreement and all other activities contemplated hereby. Page 2 of 9 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 Engineer. This Agreement constitutes legal, valid, and binding obligations of the Engineer and is enforceable in accordance with the terms thereof. D. Engineer. Engineer maintains a professional staff and employs, as needed, other qualified specialists experienced in providing the Services, and are familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. E. Performance. 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 engineering services, and comply with all applicable laws, rules, and regulations, both state and federal, relating to professional engineering services, as contemplated hereby. F. Use of Copyrighted Material. Engineer warrants that any materials provided by 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 or ordinance relating to the use or reproduction of materials. Engineer shall be solely responsible for ensuring that any materials provided by Engineer pursuant to this Agreement satisfy this requirement and Engineer agrees to indemnify and hold City harmless from all liability or loss caused to City or by to which City is exposed on account of Engineer's failure to perform this duty. G. Engineer warrants that it shall perform the Services in accordance with the standards of care and diligence normally practiced by recognized engineering firms in performing services of a similar nature. If, during the six month period following the earlier of completion or termination of the Services it is shown there is an error in the Services caused solely by Engineer's failure to meet such standards, and City has promptly notified Engineer in writing of any such error within that period, Engineer shall perform, at Engineer's cost, such corrective engineering services within the original scope of services as may be necessary to remedy such error. ARTICLE VI. SCOPE OF WORK Engineer shall accomplish the following: Professional Archetectural/Engineering Services related to the project as listed in Exhibit "A". ARTICLE VII. INDEPENDENT CONTRACTOR STATUS Engineer and City agree that 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. Engineer has the sole discretion Page 3 of 9 to determine the manner in which the Services are to be performed. During the performance of the Services under this Agreement, Engineer and 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. ARTICLE VIII. INSURANCE Engineer shall procure and carry, at its sole cost and expense through the life of this Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to 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. 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 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: Combined Single Limit: Professional Liability: Combined Single Limit: Automobile Liability: Combined Single Limit for any auto: $1,000,000 $1,000,000 $1,000,000 Per Occurrence Engineer shall further cause any approved sub -contractor or sub -consultant to procure and carry, during the term of this Agreement, professional liability coverage, as specified above for Engineer, protecting City against direct losses caused by the professional negligence of the approved subcontractor or sub -consultant. The City shall be named as additional insured with respect to the automobile liability and commercial general liability on a primary and non contributory basis and shall be granted a waiver of subrogation under those policies. 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 will be provided along with the Certificate. The additional insured endorsements shall include products and complete operations. Copies of all endorsements are required. Page 4 of 9 Engineer shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, 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 workers' compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. If at any time during the life of the Agreement or any extension hereof, Engineer fails to maintain the required insurance in full force and effect, Engineer shall be in breach hereof and all work under the Agreement shall be discontinued immediately. ARTICLE IX. EMPLOYMENT OF AGENTS/RETAINING OF CONSULTANTS 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 provided that City approves the retaining of Sub -consultants. Engineer is at all times responsible to City to perform the Services as provided in this Agreement and 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 Engineer shall be required to carry, for the protection and benefit of the City and Engineer and naming said third parties as additional insureds, insurance as described above in this Agreement. ARTICLE X. CONFIDENTIALITY 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 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 ENGINEER, ITS AGENTS, EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR THE USE OF OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION Page 5 of 9 PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OF TERMINATION OF THIS AGREEMENT. ARTICLE XII. COMPLIANCE WITH APPLICABLE LAWS 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 Engineer to City or City to 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. Engineer's address and numbers for the purposes of notice are: DFW Consulting Group, Inc. 1616 Corporate Court, Suite 100 Irving, TX 75038 Telephone: (972) 929-1199 Facsimile: (972) 929-4691 C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Lubbock Preston Smith International Airport Attn: Kelly Campbell Administration Office, 2nd Floor 5401 N. Martin Luther King, Jr. Blvd, Unit 389 Lubbock, TX, 79403 Telephone: (806) 775-3126 Facsimile: (806) 775-3133 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. Page 6 of 9 ARTICLE XIV. CITY -PROVIDED DATA City shall furnish Engineer non -confidential studies, reports and other available data in the possession of the City pertinent to Engineer's Services, so long as City is entitled to rely on such studies, reports and other data for the performance of Engineer's Services under this Agreement (the "Provided Data"). 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. 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, Engineer's books and records with respect to this Agreement between Engineer and City. C. Records. Engineer shall maintain records that are necessary to substantiate the services provided by Engineer. D. Assignments. 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 Engineer, and in the case of City, its respective successors, legal representatives, and assigns, and in the case of 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 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 circumstances, 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 Engineer and City. Page 7 of 9 I. Entire Agreement. This Agreement, including Exhibit "A," attached hereto, contains the entire Agreement between the City and 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 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 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 City or Engineer of a breach of this Agreement must be in writing 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 City and Engineer. N. Extent of Responsibility. Engineer does not guarantee that proposals, bids or actual project costs will not vary from Engineer's opinions of probable cost or that actual schedules will not vary from Engineer's projected schedules. Engineer shall not be responsible for: (1) construction means, methods, techniques, sequences, procedures, or safety precautions and programs in connection with the project; (2) the failure of any contractor, subcontractor, vendor, or other project participant, not under contract to Engineer, to fulfill contractual responsibilities to the City or to comply with federal, state, or local laws, regulations, and codes; or (3) procuring permits, certificates, and licenses required for any construction unless such responsibilities are specifically assigned to Engineer in Exhibit "A," Scope of Services. O. Unforeseen Circumstances. Except for City's obligation to make payments, neither party shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond such party's reasonable control. Engineer shall be entitled to an equitable adjustment in schedule and compensation in the event such circumstances occur. Page 8 of 9 EXECUTED as of the Effective Date hereof. ATTEST: ebec a Garza, City Secretary APPROVED C NT NT: Steve Nicholson, Deputy Director, Operations & Safety Kelly Campbell, Intenm Director of Aviation APP O EDA TO FORM: Chad Weaver, Assistant City Attorney Engineer By: Troy S ill+ , Pres dent/ Principal DFW Consulting, Inc. Page 9 of 9