HomeMy WebLinkAboutResolution - 2007-R0028 - Agreement - Dannenbaum Engineering Companny - Forth Worth LLC - 01/25/2007Resolution No. 2007-80028
January 25, 2007
Item No. 5.17
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, an Agreement between the
City of Lubbock and Dannenbaum Engineering Company — Fort Worth, LLC for
professional services, and all related documents. Said Agreement is attached hereto and
incorporated in this Resolution as if fully set forth herein and shall be included in the
minutes of the Council.
Passed by the City Council this 25th day of January 2007.
nagn Itffma I INN a Lqkvj Cvtel•
ATTEST:
Reb •ca Garza, City Secretary
APPROVED AS TO CONTENT:
- 4 -0.K IA," � C
Teff Y t , Chief Finaricial Officer
APPROVED AS TO FORM:
as/ccdocs/Professional Services Agrmt - Dannerbaum
January 19, 2007
Resolution No. 2007-R0028
January 25, 2007
Item No. 5.17
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is entered into this 25th
day of January , 2007, by and between the City of Lubbock (the "City"), a
Texas home rule municipal corporation, and Dannenbaum Engineering Company — Fort
Worth, LLC (the "Engineer"), a Texas corporation.
WITNESSETH
WHEREAS, Engineer has substantial skill and experience in the performance of
and negotiations covering, Pass -Through Toll Financing relating to Texas Department of
Transportation projects (the "Activities");
WHEREAS, the City desires to contract with Engineer to perform services related
to the Activities and Engineer desires to provide the services related to same.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the City and Engineer agree as follows:
ARTICLE I
"Yl4nac
1.01 Engineer shall conduct all activities, as set forth on Exhibit "A", "Scope of
Services", attached hereto (the "Services")
ARTICLE 11
Compensation and Term
2.01 The consideration to be paid for the Services to be provided the City as described
in Article I shall be on a time and materials basis not to exceed $64,952. The
amount payable shall be invoiced to the City on a monthly basis as the work is
performed, and shall be payable by the City within thirty (30) days after receipt of
same.
Page 1 of 11
2.02 The Services shall be completed by Engineer on or before one hundred and fifty
(150) days after the City provides the notice to proceed to Engineer. In the event
Engineer is delayed in the performance of the Project due to the fault of the City
or third party, the time for Engineer's performance shall be extended the number
of days such performance was so delayed, so long as Engineer shall give notice to
City of such delay as soon as reasonably practical from Engineer's awareness of
the delay.
2.03 The City may terminate this Agreement by providing written notice to Engineer at
least five (5) days prior to the effective date of termination as provided in such
notice. In the event this Agreement is so terminated, the City shall pay Engineer
only for services actually performed by Engineer up to and including the date the
Engineer is deemed to have received the City's notice of termination.
ARTICLE III
Independent Contractor
3.01 It is understood and agreed that Engineer is to perform the Services in a sound
and professional manner and exercising the degree of care, skill and diligence in
the performance of the Services as a reasonable and prudent engineer; and
Engineer hereby warrants to the City that the Services shall be so performed.
Further, Engineer is and shall be considered at all times an independent contractor
under this Agreement and/or in its services, hereunder. During the performance of
the Services under this Agreement, Engineer and Engineer's employees shall 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
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unemployment insurance, old age benefits, workers compensation, labor, personal
injury or taxes of any kind.
ARTICLE N
Events of Default/Remedies
4.01 Engineer's Defaults/City's Remedies. In the event Engineer shall default in the
performance of any term or provision of this Agreement for any reason other than
failure by the City to perform hereunder, the City may, if said default shall be
continuing after five (5) days notice of such default is delivered to Engineer,
exercise any right or remedy available to it by law, contract, equity or otherwise,
including without limitation, the right to terminate this Agreement without
additional notice.
The remedies set forth herein are cumulative and not exclusive, and may
be exercised concurrently.
ARTICLE V
Insurance/Indemnity
5.01 Engineer shall procure and carry, at its sole cost and expense
through the life of this Agreement, insurance protection as specified in Exhibit
"B", attached hereto.
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 this Agreement shall be discontinued
immediately.
Engineer hereby releases the City and the City's elected officials, officers,
agents, employees and independent contractors, for itself, its employees and
Page 3 or I 1
agents, and shall indemnify and hold City and City's elected officials, officers,
agents, employees and independent contractors harmless, to the fullest extent
permitted by law, from and against any and all claims, demands, damages, costs,
liabilities and expenses, and including reasonable attorney's fees, as a result of,
related to, arising from, or related to Engineer's use or occupation of City owned
lands, and/or any matter related to Engineer's activities, performances, operations
or omissions under this Agreement.
ARTICLE VI
Miscellaneous
6.01 Engineer shall comply with all laws, statutes, regulations, ordinances, rules and
any other legal requirement related to, in any way, manner or form, the
performance of the Services contemplated herein.
6.02 Any notice required by this Agreement shall be deemed to be properly served, if
(i) provided in person or by telephonic facsimile; or (ii) deposited in the United
States mail by certified letter, return receipt requested, addressed to the recipient
at recipient's address shown below, subject to the right of either party to designate
a different address by notice given in the manner just described. Notice shall be
deemed to be received when delivered if provided in person or by telephonic
facsimile or, if deposited in the United States mail, as set forth above, three (3)
days after depositing such notice in the United States mail, as set forth above.
For City:
Justin Nairn, Capital Projects Manager
City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
Facsimile: 806-775-2051
Page 4 of 1
For Engineer:
Gary W. Fisher, P.E., President
Dannenbaum Engineering Company — Fort Worth, LLC
6421 Camp Bowie Blvd., Suite 404
Fort Worth, TX 76116
Facsimile No. 817-377-2956
6.43 THIS AGREEMENT IS TO BE CONSTRUED UNDER TEXAS LAW
WITHOUT REGARD TO CONFLICT OF LAW RULES THAT WOULD
DIRECT APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
THE OBLIGATIONS OF THE PARTIES CREATED BY THIS AGREEMENT
ARE PERFORMABLE, AT LEAST IN PART, IN LUBBOCK COUNTY,
TEXAS. VENUE FOR ANY ACTION BROUGHT PURSUANT TO THIS
AGREEMENT, OR ACTIVITY CONTEMPLATED HEREBY, SHALL
EXCLUSIVELY BE IN LUBBOCK COUNTY, TEXAS.
6.44 This Agreement represents the entire and sole agreement between the City and
Engineer with respect to the subject matter hereof and supersedes any and all
prior negotiations, understandings, representations or other agreements, whether
written or oral. This Agreement may not be modified or amended except in
writing and duly executed by each party hereto.
6.05 Nothing contained herein shall be construed to imply a joint venture, joint
enterprise, partnership or principal — agent relationship between Engineer and the
City.
6.06 If any provision of this Agreement is declared invalid or unenforceable, such
provision shall be deemed modified to the extent necessary to render it valid and
enforceable so long as said modification is reasonably within the intent the parties
as originally expressed. In the event such provision may not be so modified, the
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unenforceability or invalidity of any provision shall not affect any other provision
of this Agreement, and this Agreement shall continue in force and effect as if such
provision had not been included in this Agreement.
6.07 Any and all work product 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 Section 2.01, above. However, City expressly acknowledges (1) that such
documents are not intended or represented to be suitable for use on other projects
unless completed by Engineer, or for use or reuse by City or others on extensions
of the Services or on any other project without written verification or adaptation
by Engineer; (2) any such use or reuse, or any modification of such documents,
without written verification, completion, or adaptation by Engineer, as appropriate
for the specific purpose intended, will be at City's sole risk and without liability
or legal exposure to Engineer; (3) City shall release Engineer from all claims,
damages, losses, and expenses, including attorney's fees, arising out of or
resulting from any use, reuse, or modification without written verification,
completion, or adaptation by Engineer; and (4) such use to City shall not create
any rights in third parties.
6.08 A waiver by either City or Engineer of a breach of this Agreement shall be in
writing. 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.
6.09 Engineer may not assign this Agreement, in whole or in part, without the written
consent of such assignment by the City. City and Engineer each bind itself or
Page 6 of 11
himself, their legal representatives and permitted assigns in respect to all
provisions of this Agreement.
6.10 Nothing in this Agreement shall be construed to provide any rights or benefits
whatsoever to any party other than City and Engineer.
6.11 Engineer represents and warrants to City that it has taken all actions necessary to
authorize the party executing this Agreement to bind, in all respects, Engineer to
all terms and provisions of this Agreement, and that such person possesses
authority to execute this Agreement and bind Engineer hereto.
Page 7 of l 1
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date first written above.
ENGINEER:
DANNENBAUM ENGINEERING COMPANY — FORT WORTH, LLC
By: Gti
Flame: Gary W. Fisher, P.E.
Title. President
CITY OF LUBBOCK
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1 •VA I ER, AYOR
ATTEST:
Reb ca Garza, City Secretary
TO CO
A Financial Officer
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Irl A ►'' `'r >ICg�
First Assistant City Attomey
Pagc 8 of I I
Resolution No. 2007-ROO28
EXHIBIT A
SCOPE OF SERVICES
The Engineer's services will be undertaken as follows:.
W.A. No. 2: Negotiation of Pass -Through Toll Financing
Agreement
Work Authorization No. 2: Negotiation of Pass -Through Toll Financing_ Agreement
Assist the City in negotiating favorable terms for a Pass -Through Toll Financing
Agreement with the Texas Department of Transportation (TxDOT) to complete the
development of Loop 289 from FM 2255 (4u' Street) to Quaker Avenue and explore
possible other appropriate pass-through toll financing projects.
Assist the City with collecting and assembling the application data relating to a pass-
through toll financing application package as follows:
• Task 1: Schematic Design Files
Obtain electronic schematic design files. if necessary, recreate GEOPAK
files including shape, patterns and cross-sections.
• Task 2: Schematic Revisions (if required)
This effort will be required in the event that TxDOT requests that profiles,
pavement, typical sections, etc. be revised.
• Task 3: Prepare Detailed Preliminary Construction Cost Estimate
Prepare a detailed preliminary construction cost estimate calculating
quantities and utilizing current TxDOT unit bid prices. In consultation with
the City, project these costs and anticipated materials prices to the year 2008.
Coordinate with TxDOT concerning the estimate.
+ Task 4: Preparation of Pass Through Financing Agreement
Assist the City in preparing the Pass Through Financing Agreement
documents. This will include meetings and coordination with the City along
with assistance in the preparation of the Agreement Attachments.
• Task 5: Pass Through Financing Agreement Negotiations
Provide the City consultation and advice and assist the City in negotiating the
Agreement with TxDOT.
Page 9 of 11
Resolution No. 2007-R0028
EXHIBIT B
INSIIRANCE
Attach a Certificate of Insurance identifying the following:
• Name of the Insurance Carrier
• Policy Number and Expiration Date
« Limits of Liability and Deductible
Commercial General Liability:
Contractor's Insurance shall contain broad form contractual liability with a combined
single limit of a minimum of $1,000,000 each occurrence and in the aggregate and shall
include the following:
• Products and completed operations
Personal Injury and Advertising Injury
• 'goad Form Contractual Liability
Professional Liability:
With a limit of a minimum of $1,000,000 (Engineer only)
Business Automobile Liability:
Contractor's Insurance shall contain a combined single limit of at least $500,000 per
occurrence, and include coverage for, but not limited to, the following:
e Any and all vehicles owned, used or hired
Workers' Compensation and Employer's Liability_ Insurance:.
Contractor shall elect to obtain Workers' Compensation coverage pursuant to Section
406.002 of the Texas Labor Code. Further, Contractor shall maintain said coverage
throughout the term of this Agreement and shall comply with all provision of Title 5 of
the Texas Labor Code to ensure that the Contractor maintains said coverage. Any
Page 10 of I I
termination of workers' compensation insurance coverage by contractor or any
cancellation or non -renewal of workers' compensation insurance coverage for the
Contractor shall be a material breach of this contract. The Contractor may maintain
Occupations 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.
Employer's Liability with limits of at least $500,000 each accident, $500,000 by disease
policy limit, and $500,000 by disease each employee shall also be obtained and
maintained throughout the term of this contract.
Other Insurance Requirements:
Contractor's General Liability (except Professional Liability) and Auto Liability
Insurance policies through policy endorsement must include wording, which states that
the policy shall be primary and non-contributory with respect to any insurance carried by
City of Lubbock. The certificate of insurance described herein must reflect that the
above wording is included in evidenced policies. All policies, except Professional
Liability, shall be endorsed to include a waiver of subrogation in favor of the City of
Lubbock.
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