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HomeMy WebLinkAboutR99-085 10-25-99 RESOLUTION NO. R99-85 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A CONTRACT WITH DANNENBAUM ENGINEERING CORPORATION FOR ENGINEERING SERVICES RELATED TO THE ADVANCED PLANNING AND PRELIMINARY ENGINEERING OF THE PROPOSED MAGNOLIA ROAD OVERPASS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain contract by and between the City of Pearland and Dannenbaum Engineering Corporation, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest the original of the attached contract with Dannenbaum Engineering Corporation, for and on behalf of the City of Pearland, for engineering services related to the advanced planning and preliminary engineering of the proposed Magnolia Road overpass. PASSED, APPROVED and day of October A.D. 1999. ATTEST: TOyNs~~//-/ ~AP~PROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY ADOPTED this the 25th TOM REID MAYOR Contract No. STATE OF TEXAS § cow,fY m AZO A § THIS CONTRACT FOR ENGINEERING SERVICES is made by and between the City of Pearland, 3519 Liberty Drive, Pearland, Texas 77581, hereinafter called the "City," and Dannenbaum Engineering Corporation,' having its principal business address at 3100 W. Alabama, Houston, Texas 77008, hereinafter called "Engineer" for the purpose of contracting for engineering services. WITNESSETH WHEREAS, Government Code, Chapter 2254, Subchapter A, "Professional Services Procurement Act" provides for the procurement of professional services of engineers; and WHEREAS, 43 TAC §9.30-9.41 establishes the Texas Department of Transportation's policies and procedures for contracting for engineering services; and WHEREAS, the City desires to contract for engineering services described as follows: Advanced Planning including preliminary engineering, environmental assessment, public involvement and right-of-way acquisition for improvement to Magnolia Road from Burlington Northern/Santa Fe Railroad overpass to SH 35. Also included will be preparation of final PS&E and review of shop drawings for above-referenced project. AGREEMENT NOW, THEREFORE, the City and the Engineer, in consideration of the mutual covenants and agreements herein contained, do hereby mutually agree as follows: ARTICLE 1 SCOPE OF SERVICES TO BE PROVIDED BY CITY The City will furnish items and perform those services for fulfillment of the contract as identified in Attachment A - Services to be Provided by the City, attached hereto and made a part of this contract. I of 13 4/96 ARTICLE 2 SCOPE OF SERVICES TO BE PROVIDED BY ENGINEER The Engineer shall perform those engineering services for fulfillment of the contract as identified in Attachment B - Services to be Provided by the Engineer, attached hereto and made a part of this engineering contract. The Engineer shall prepare a schedule of work identified as Attachment C - Work Schedule, attached hereto and made a part of this contract. The Work Schedule shall contain a complete schedule so that the Engineer's Scope of Services under this contract can be accomplished within the specified time and contract cost. The Work Schedule will provide specific work sequence and definite review times by the City and the Engineer of the work performed. If the review time should take longer than shown on the work schedule, through no fault of the Engineer, additional contract time will be authorized by the City through a supplemental agreement if requested by a timely written request from the Engineer and approved by the City. ARTICLE 3 CONTRACT PERIOD After execution of this contract, the Engineer shall not proceed with the work outlined under Article 2 until authorized in writing by the City to proceed as provided in Article 6. This contract shall terminate at the close of business on April 1, 2001, unless extended by written supplemental agreement duly executed by the Engineer and the City prior to the date of termination, as provided in Article 11 - Supplemental Agreements, or otherwise terminated as provided in Article 19 - Termination. Any work performed or cost incurred after the date of termination shall be ineligible for reimbursement. The Engineer shall notify the City in writing as soon as possible if it determines, or reasonably anticipates, that the work under this contract cannot be completed before the termination date, and the City may, at its sole discretion, extend the contract period by timely supplemental agreement as provided in Article 11 - Supplemental Agreements. The' Engineer shall allow adequate time for review and approval of the request for time extension by the City prior to expiration of this contract. ARTICLE 4 COMPENSATION The City shall pay and the Engineer agrees to accept the lump sum amount shown below as full compensation for the engineering services to be performed under this contract. The lump sum amount payable under this contract without modification of the contract is $567,384.78 as shown in Attachment D - Fee Schedule. The lump sum amount payable may be revised by supplemental agreement in the event of a change in scope, additional complexity from that originally anticipated or character of work as authorized by the City. 2 of 13 4/96 The Engineer shall prepare and submit to the City monthly progress reports in sufficient detail to support the progress of the work and in support of invoice requesting monthly payment. Any preferred format will be identified in Attachment B. Satisfactory progress of work shall be maintained as a condition of payment. The fee may be adjusted if additional work is approved by supplemental agreement and performed by the Engineer. ARTICLE 5 METHOD OF PAYMENT Payments to the Engineer for services rendered will be made while work is in progress. The Engineer will prepare and submit to the City district office, no more frequently than once per month, a progress report stating the percent completion of the work accomplished during the billing period and to date, and one original and one copy of a certified invoice (Texas Department of Transportation Form 132, or an invoice that is acceptable to the City). The submittal shall also include the progress assessment report, identified as Attachment H-2. Payment of the lump sum fee will be in proportion to the percent completion of the work tasks identified in Attachment D - Fee Schedule. Upon receipt and approval of each statement, the City shall make a good faith effort to pay the amount which is due and payable within thirty (30) days. The City shall reserve the right to withhold payment pending verification of satisfactory work performed. The Engineer must submit adequate proof to the City that the task was completed. The certified statements shall show the total amount earned to the date of submission and the amount due and payable as of the date of the current statement. Final payment does not relieve the Engineer of the responsibility of correcting any errors and/or omissions resulting from its negligence. ARTICLE 6 NOTICE TO PROCEED The City will issue a written authorization to proceed with the work identified in the scope of services. The City shall not be responsible for actions by the Engineer or any costs incurred by the Engineer relating to additional work not included in Attachment B - Services to be Provided by the Engineer. ARTICLE 7 PROGRESS The Engineer shall, from time to time during the progress of the work, confer with the City. The Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by the City, in order to evaluate features of the work. At the request of the City or the Engineer, conferences shall be provided at the Engineer's office, the office of the City, or at other locations designated by the City. These 3 of 13 4/96 conferences shall also include evaluation of the Engineer's services and work when requested by the City. Should the City determine that the progress in production of work does not satisfy the Work Schedule, the City shall review the work schedule with the engineer to determine corrective action needed. The Engineer shall promptly advise the City in writing of events which have a significant impact upon the progress of the work, including: (1) problems, delays, adverse conditions which will materially affect the ability to attain program objectives, prevent the meeting of time schedules and goals, or preclude the attainment of project work units by established time periods; this disclosure will be accompanied by statement of the action taken, or contemplated, and any City or federal assistance needed to resolve the situation; and (2) favorable developments or events which enable meeting the work schedule goals sooner than anticipated. ARTICLE 8 SUSPENSION Should the City desire to suspend the work, but not terminate the contract, this may be done by thirty (30) calendar days verbal notification followed by written confn'mation from the City to that effect. The thirty day notice may be waived in writing by both parties. The work may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from the City to resume the work. The sixty day notice may be waived in writing by both parties. If the City suspends the work, the contract period as determined in Article 3 is not affected and the contract will terminate on the date specified unless the contract is amended. The City assumes no liability for work performed or costs incurred prior to the date authorized by the City to begin work, during periods when work is suspended, or subsequent to the contract completion date. ARTICLE 9 ADDITIONAL WORK If the Engineer is of the opinion that any work it has been directed to perform is beyond the scope of this agreement and constitutes extra work, it shall promptly notify the City in writing. In the event the City finds that such work does constitute extra work and exceeds the maximum amount payable, the City shall so advise the Engineer and a written supplemental agreement will be executed between the parties as provided in Article 11. The Engineer shall not perform any proposed additional work or incur any additional costs prior to the execution, by both parties, of a supplemental agreement. The City shall not be responsible for actions by the Engineer or any costs incurred by the Engineer relating to additional work not directly associated with the performance of the work authorized in this contract or as amended. 4 of 13 4/96 ARTICLE 10 CHANGES IN WORK If the City finds it necessary to request changes to previously satisfactorily completed work or parts thereof which involve changes to the original scope of services or character of work under the contract, the Engineer shall make such revisions if requested and as directed by the City. This will be considered as additional work and paid for as specified under Article 9 - Additional Work. The Engineer shall make such revisions to the work authorized in this contract which has been completed as are necessary to correct errors appearing therein, when required to do so by the City. No additional compensation shall be paid for this work. ARTICLE 11 SUPPLEMENTAL AGREEMENTS The terms of this contract may be modified by supplemental agreement if the City determines that there has been a significant change in (1) the scope, complexity or character of the service to be performed; or (2) the duration of the work. Additional compensation, if appropriate, shall be identified as provided in Article 4. Any supplemental agreement must be executed by both parties within the contract period specified in Article 3 - Contract Period. It is distinctly understood and agreed that no claim for extra work done or materials furnished shall be made by the Engineer until full execution of the supplemental agreement and authorization to proceed is granted by the City. The City reserves the right to withhold payment pending verification of satisfactory work performed. ARTICLE 12 PUBLIC INFORMATION ACT All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this contract are the exclusive property of the City and shall be furnished to the City upon request. All documents prepared by the Engineer and all documents furnished to the Engineer by the City shall be delivered to the City upon completion or termination of this contract. The Engineer, at its own expense, may retain copies of such documents or any other data which it has furnished the City under this Contract. Release of information shall be in conformance with the Texas Open Records Act. 5 of 13 4~96 ARTICLE 13 PERSONNEL, EQUIPMENT AND MATERIAL The Engineer shall furnish and maintain, at its own expense, quarters for the performance of all services, and adequate and sufficient personnel and equipment to perform the services as required. Alt employees of the Engineer shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of the Engineer who, in the opinion of the City, is incompetent, or whose conduct becomes detrimental to the work, shall immediately be removed from association with the project when so instructed by the City. The Engineer certifies that it presently has adequate qualified personnel in its employment for performance of the services required under this contract, or will be able to obtain such personnel from sources other than the City. The Provider may not change the Project Manager without prior consent of the City. ARTICLE 14 BUY TEXAS The Engineer shall buy Texas products and materials for use in providing the services authorized in this contract when said products and materials are available at a comparable price and in a comparable period of time. When requested by the City, the Engineer shall furnish documentation of said purchases or a description of good faith efforts to do so. ARTICLE 15 SUBCONTRACTING The Engineer shall not assign, subcontract or transfer any portion of the work under this contract without prior written approval from the City. All subcontracts shall include the provisions required in this contract and shall be approved as to form, in writing, by the City prior to work being performed under the subcontract. No subcontract relieves the Engineer of any responsibilities under this contract. ARTICLE 16 EVALUATION OF WORK The City shall have the right at all reasonable times to review or otherwise evaluate the work performed or being performed hereunder and the premises in which it is being performed. If any review or evaluation is made on the premises of the Engineer or a subprovider, the Engineer shall provide and require its subproviders to provide all reasonable facilities and assistance for the safety and convenience of the City. 6 of 13 4~96 ARTICLE 17 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by the City before final report is 'issued. The City's comments on the Engineer's preliminary report will be addressed in the final report. ARTICLE 18 VIOLATION OF CONTRACT TERMS/BREACH OF CONTRACT Violation of contract terms or breach of contract by the Engineer shall be grounds for termination of the contract and any increased cost arising from the Engineer's default, breach of contract or violation of contract terms shall be paid by the Engineer. This agreement shall not be considered as specifying the exclusive remedy for any default, but all remedies existing at law and in equity may be availed of by either party and shall be cumulative. ARTICLE 19 TERMINATION The contract may be terminated before the stated termination date by any of the following conditions. (I) By mutual agreement and consent, in writing of both parties. (2) By the City by notice in writing to the Engineer as a consequence of failure by the Engineer to perform the services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (4) By the City for reasons of its own and not subject to the mutual consent of the Engineer upon not less than thirty (30) days written notice to the Engineer. (5) By satisfactory completion of all services and obligations described herein. Should the City terminate this contract as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to the Engineer. In determining the value of the work performed by the Engineer prior to termination, the City shall be the sole judge. Compensation for work at termination will be based on a percentage of the work completed at that time. Should the City terminate this contract under (4) of the paragraph identified above, the amount charged during the thirty (30) day notice period shall not exceed the amount charged during the preceding thirty (30) days. If the Engineer defaults in the performance of this contract or if the City terminates this contract for fault on the part of the Engineer, the City will give consideration to the actual costs incurred by the Engineer in performing the work to the date of default, the amount of work required which was sat{sfactorily completed to date of default, the value of the work 7 of 13 4/96 which is usable to the City, the cost to the City of employing another firm to complete the work required and the time required to do so, and other factors which affect the value to the City of the work performed at the time of default. The termination of this contract and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of the City and the Engineer under this contract, except the obligations set forth in Article 19 of this contract. If the termination of this contract is due to the failure of the Engineer to fulfill its contract obligations, the City may take over the project and prosecute the work to completion. In such case, the Engineer shall be liable to the City for any additional cost occasioned the City. The Engineer shall be responsible for the settlement of alt contractual and administrative issues arising out of the procurement made by the Engineer in support of the scope of services under this contract. ARTICLE 20 COMPLIANCE WITH LAWS The Engineer shall comply with all applicable Federal, City and local laws, statutes, codes, ordinances, rules and regulations, and the orders and decrees of any court, or administrative bodies or tribunals in any manner affecting the performance of this contract, including, without limitation, worker's compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and'regulations. When required, the Engineer shall furnish the City with satisfactory proof of its compliance therewith. ARTICLE 21' INDEMNIFICATION The Engineer shall save harmless the City and its officers and employees from all claims and liability due to activities of itself, its agents, or employees, performed under this contract and which are caused by or result from error, omission, or negligent act of the Engineer or of any person employed by the Engineer. The Engineer shall also save harmless the City from any and all expense, including, but not limited to, attorney fees which may be incurred by the City in litigation or otherwise resisting said claim or liabilities which may be imposed on the City as a result of such activities by the Engineer, its agents, or employees. ARTICLE 22 ENGINEER'S RESPONSIBILITY The-Engineer shall be responsible for the accuracy of its work and shall promptly make necessary revisions or corrections resulting from its errors, omissions, or negligent acts without compensation. The Engineer's responsibility for all questions arising from design errors and/or omissions will be determined by the City. The Engineer will not be relieved of the responsibility for subsequent correction of any such errors or omissions or for clarification of any ambiguities until after the construction phase of the project has been completed. 8 of 13 4/96 ARTICLE 2~ ENGINEER'S SEAL The responsible Engineer shall sign, seal and date all appropriate engineering submissions to the City in accordance with the Texas Engineering Practice Act and the Rules of the Texas Board of Professional Engineers. · ARTICLE 24 NONCOLLUSION The Engineer warrants that it has not employed or retained any company or persons, other than a bona fide employee working solely for the Engineer, to solicit or secure this contract and that it has not paid or agreed to pay any company or engineer any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this contract. For breach or violation of this warranty, the City shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or compensation, or otherwise recover, the full mount of such fee, commission,.percentage, brokerage fee, gift or contingent fee. ARTICLE 25 INSURANCE The Engineer shall furnish.the City a properly completed C~rtificate of Insurance (Texas Department of Transportation form 20.102) approved by the City prior to beginning work under this contract and shall maintain such insurance through the contract period. The completed Certificate of Insurance shall be attached hereto and identified as Attachment G. ARTICLE 26 GRATUITIES Employees of the City shall not accept any benefits, gifts or favors from any person doing business or who reasonably speaking may do business with the City under this contract. The only exceptions allowed are ordinary business lunches and items that have received the advance written approval of the City of Pearland. Any person doing business with or who may reasonably speaking do business with the City under this contract may not make any offer of benefits, gifts or favors to departmental employees, except as mentioned hereinabove. Failure on the part of the Engineer to adhere to this policy may result in the termination of this contract. 9 of 13 4/96 ARTICLE 27 DISADVANTAGED BUSINESS ENTERPRISE OR HISTORICALLY UNDERUTILIZED .BUSINESS REQUIREMENT The Engineer agrees to comply with the requirements set forth under the attached Attachment H - Disadvantaged Business Enterprise or Historically Underutilized Business Program Requirements as determined by the funding source. ARTICLE 28 INSPECTION OF ENGINEER'S BOOKS AND RECORDS AND AUDIT REQUIREMENTS The City shall have the exclusive right to examine the books and records of the Engineer for the purpose of checking the amount of work performed by the Engineer at the time of contract termination. The Engineer shall maintain all books, documents, papers, accounting records and other evidence pertaining to cost incurred and shall make such materials available at its office during the contract period and for four (4) years from the date of f'mal payment under this contract or until pending litigation has been completely and fully resolved, whichever occurs last. The City or any of its duly authorized representatives, the Texas Department of Transportation, the Federal Highway Administration, the U.S. Department of Transportation Office of Inspector General and the Comptroller General shall have access to any and all books, documents, papers and records of the Engineer which are directly pertinent to this contract for the purpose of making audits, examinations, excerpts and transcriptions. ARTICLE 29 PAYMENT OF FRANCHISE TAX Pursuant to the Business Corporation Act, Texas Civil Statutes, Article 2.45 which prohibit the City from awarding a contract to a corporation that is delinquent in paying taxes under Tax Code, Chapter 171, the Engineer hereby certifies that it is not delinquent in its Texas franchise tax payments, or that it is exempt from, or not subject to, such a tax. A false statement concerning corporation's franchise tax status shall constitute grounds for termination of the contract at the sole option of the City. ARTICLE 30 DEBARMENT, SUSPENSION AND DISCIPLINARY ACTION The Engineer warrants that the representations included in the Debarment Certification (Negotiated Contracts) submitted with the offer to provide services are current and still valid. ARTICLE 31 LOBBYING CERTIFICATION The Engineer shall comply with "Lobbying Certification\Disclosure Form" in federal aid contracts in excess of $100,000 or subcontracts in excess of $50,000, identified and attached hereto as Attachment I. 10 of 13 4~96 ARTICLE 32 CIVIL RIGHTS COMPLIANCE The Engineer shall comply with the regulations of the Department of Transportation (49 C.F.R. Part 21 and 23 C.F.R.'§710.405) as they relate to nondiscrimination; also, Executive Order 11246 titled Equal Employment Opportunity as amended by Executive Order 11375 and as supplemented in Department of Labor Regulation (41 C.F.R. Part 60). See Civil Rights Compliance," attached hereto and identified as Attachment J. ARTICLE 33 PATENT RIGHTS AND COPYRIGHTS The Engineer shall comply with the patent rights procedures as specified in 37 C.F.R. Part 401 et seq., with respect to processes and inventions developed during the course of this contract. The City and the Texas Department of Transportation shall have the royalty free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use any reports developed by the Engineer for governmental purposes. ARTICLE 34 PROPERTY MANAGEMENT AND PROCUREMENT STANDARDS The Engineer agrees to comply with the property management standards specified in OMB Circular A-102 and 49 C.F.R. §18.3~5, in its control, use and disposition of property and equipment governed by those standards. The Engineer agrees to comply with the procurement standards specified in OMB Circular A-102 and 49 C.F.R. §18.32, in its procurement of property and equipment governed by those standards. ARTICLE 35 COMPUTER GRAPHICS FILES The Engineer agrees to comply with the Special Provision "Computer Graphics Files for Document and Information Exchange," if determined by the City to be applicable to this contract and if so stated in Attachment B and attached hereto. ARTICLE 36 CHILD SUPPORT STATEMENT Under Section 231.006 of the Family Code, the Engineer certifies that the individuals or business entity named in this contract is eligible to receive the specified grant or payment and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate. The Engineer further acknowledges that he or she has read Attachment K and has provided the names and social security numbers required therein. 11 of 13 4/96 ARTICLE 37 DISPUTES The Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurement made by the Engineer in support of this contract's work. Any disputes concerning the work hereunder or additional costs, or any non- procurement issues shall be settled in accordance with Title 43, Texas Administrative Code, {}1.68. ARTICLE 38 SUCCESSORS AND ASSIGNS The Engineer, and the City, do hereby bind themselves, their successors, executors, administrators and assigns to each other party of this agreement and to the successors, executors, administrators, and assigns of such other party in respect to all covenants of this contract. The Engineer shall not assign, subcontract or transfer its interest in this contract without the prior written consent of the City. ARTICLE 39 SEVERABILITY In the event any one or more of the provisions contained in this contract shall for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. ARTICLE 40 PRIOR CONTRACT SUPERSEDED This contract constitutes the sole and only'agreement of the parties hereto and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. ARTICLE 41 NOTICES All notices to either party by the other required under this contract shall be personally delivered or mailed to such party at the following respective address: CITY ENGINEER Andrew P. Gallagher, P.E. City of Pearland 3519 Liberty Drive Pearland, Texas 77581 Louis H. Jones, Jr., P.E. Dannenbaum Engineering Corporation 3100 W. Alabama Houston, Texas 77098 12 of 13 4/96 ARTICLE 42 SIGNATORY WARRANTY The undersigned signatory or signatories for the Engineer hereby represent and warrant that the signatory is an officer of the organization for which he or she has executed this contract and that he or she has full and complete authority to enter into this contract on behalf of the fh'm. The above-stated representations and warranties are made for the purpose of inducing the City to enter into this contract. IN WITNESS HEREOF, the City and the Engineer have executed these presents in duplicate. DANNENBAUM ENGINEERING CORPORATION ~ignature/~ / Printed Name Titlg -- Date CITY OF PEAR.LAND Signature / Glen Erwin Printed Name Citv Manaqer Title 10-26-99 Date LIST OF ATTACHMENTS Attachment A - Attachment B Attachment C Attachment D - Attachment E Attachment F Attachment G - Attachment H - Attachment I Attachment J Attachment K - Services to be Provided by the City Services to be Provided by the Engineer Work Schedule, if applicable Fee Schedule Work Authorizations, if applicable Supplemental Work Authorizations, if applicable Certificate of Insurance, if applicable Disadvantaged Business Enterprise or Historically Underutilized Business Program Requirements Lobbying Certification/Disclosure Form, if applicable Civil Rights Compliance Child Support Statement * Attachments E and F do not apply. 13 of 13 4/96