R2008-103 2008-07-28RESOLUTION NO. R2008-103
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING A CONTRACT FOR RIGHT-OF-WAY
ACQUISITION SERVICES ASSOCIATED WITH THE COWARTS CREEK
DIVERSION PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for right-of-way acquisition services associated
with the Cowarts Creek Diversion Project, 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 a contract for right-of-way acquisition services associated
with the Cowarts Creek Diversion Project.
PASSED, APPROVED and ADOPTED this the 28~h day o A.D., 2008.
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TOM REID
MAYOR
ATTEST:
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Y SE ETARY
APPROVED AS TO FORM:
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DARRIN M. COKER
CITY ATTORNEY
Exhibit"A"
R2008-703 DR0602
ROW Svcs. Cowart Creek Diversion
CONTRACT FOR PROFESSIONAL SERVICES
THIS CONTRACT is entered into on July 28 2008 by and between the City of
Pearland ("CITY") and Texas Land Professionals, Ina ("CONSULTANT").
The CITY engages the CONSULTANT to perform Right of Way Services for 18 fee acquisition
described as Cowart Creek Diversion Project (Project No. DR0602).
SECTION I -SERVICES OF THE CONSULTANT
The CONSULTANT shall perform the following professional services to CITY standards and in
accordance with the degree of care and skill that a professional in Texas would exercise under the same or
similar circumstances:
A. The CONSULTANT shall Right of Way Services on the Cowart Creek Diversion
Project. See Exhibit A, attached, for a detailed SCOPE OF SERVICES.
B. The CONSULTANT shall prepare and submit a detailed opinion of estimated cost of the
PROJECT.
C. The CONSULTANT acknowledges that the CITY (through its employee handbook)
considers the following to be misconduct that is grounds for termination of a CITY
employee: Any fraud, forgery, misappropriation of funds, receiving payment for services
not performed or for hours not worked, mishandling or untruthful reporting of money
transactions, destruction of assets, embezzlement, accepting materials of value from
vendors, or consultants, and/or collecting reimbursement of expenses made for the
benefit of [he CITY. The CONSULTANT agrees that it will not, directly or indirectly;
encourage a CITY employee to engage in such misconduct.
D. The CONSULTANT recognizes that all drawings, special provisions, field survey notes,
reports, estimates and any and all other documents or work product generated by the
CONSULTANT under the CONTRACT shall be delivered to the CITY upon request,
shall become subject to the Open Records Laws of this State.
E. The CONSULTANT shall procure and maintain for the duration of this Agreement,
insurance against claims for injuries to persons, damages to property, or any errors and
omissions relating to the performance of any work by the CONSULTANT, its agents,
employees or subcontractors under this Agreement, as follows:
(1) Workers' Compensation as required by law.
(2) Professional Liability Insurance in an amount not less than $1,000,000 in the
aggregate.
(3) Comprehensive General Liability and Property Damage Insurance with minimum
limits of $1,000,000 for injury or death of any one person, $1,000,000 for each
occurrence, and $1,000,000 for each occurrence of damage to or destruction of
property.
(4) Comprehensive Automobile and Truck Liability Insurance covering owned,
hired, and non-owned vehicles, with minimum limits of $1,000,000 for injury or
death of any one person, $1,000,000 for each occurrence, and $1,000,000 for
property damage.
The CONSULTANT shall include the CITY as an additional insured under the policies,
with the exception of the Professional Liability Insurance and Workers' Compensation.
Certificates of Insurance and endorsements shall be furnished to the CITY before work
commences. Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled, and/or reduced in coverage or in limits ("Change in
Coverage") except with prior written consent of the CITY and only after the CITY has
been provided with written notice of such Change in Coverage, such notice to be sent to
the CITY either by hand delivery to the City Manager or by certified mail, return receipt
requested, and received by the City no fewer than thirty (30) days prior to the effective
date of such Change in Coverage. Prior to commencing services under this CONTRACT,
CONSULTANT shall furnish CITY with Certificates of Insurance, or formal
endorsements as required by this CONTRACT, issued by CONSULTANT'S insurer(s),
as evidence that policies providing the required coverage, conditions, and limits required
by this CONTRACT are in full force and effect.
F. The CONSULTANT shall indemnify and hold the CITY, its officers, agents, and
employees, harmless from any claim, loss, damage, suit, and liability of every kind for
which CONSULTANT is legally liable, including all expenses of litigation, court costs,
and attorney's fees, for injury to or death of any person, for damage to any property, or
errors in design, any of which are caused by the negligent act or omission of the
CONSULTANT, his officers, employees, agents, or subcontractors under this
CONTRACT.
H. All parties intend that the CONSULTANT, in performing services pursuant to this
CONTRACT, shall act as an independent contractor and shall have control of its own
work and the manner in which it is performed. The CONSULTANT is not to be
considered an agent or employee of the CITY.
SECTION II -PERIOD OF SERVICE
This CONTRACT will be binding upon execution and end upon completion of project.
SECTION III -CONSULTANT'S COMPENSATION
A. The method of payment for this CONTRACT is payment by milestones /not to exceed
rate per parcel. Total compensation for the services performed shall be the sum of
$54,000.00
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Per parcel billing is to be paid as follows:
Progressive payment
- 25% upon presentation of initial offer.
- 60% upon presentation of final offer or on execution of deed, or payment
submission.
- l00% upon successful negotiation/award and all instruments are recorded.
B. The CITY shall pay the CONSULTANT in installments based upon a per parcel
basis, progress reports and detailed invoices submitted by the CONSULTANT
subject to the following limitations:
C. Payment will be made for services rendered, provided that:
1. Invoices must be submitted on the Contractor's own invoice form and
must be prepared to show:
a. The date;
b. Name and address of the Consignee;
c. Item/reference number, deliverable and/or description of work;
d. PO number; the amount invoiced and remaining contract balance.
2. Time sheets are provided to support the time being claimed.
D. The CITY shall make payments to the CONSULTANT within thirty (30) days
after receipt and approval of a detailed invoice.
All products and deliverables resulting from Services performed and
covered by payments made shall, at the time of payment, become the sole
property of City, but this provision shall not be construed as:
a. Relieving the Consultant from the sole responsibility for all
products and deliverables upon which payments have been made
or the re-accomplishment of any inaccurate work.
-3-
SECTION IV -THE CITY'S RESPONSIBILITIES
A. The CITY shall designate a project manager during the term of this CONTRACT. The
project manager has the authority to administer this CONTRACT and shall monitor
compliance with all terms and conditions stated herein. All requests for information from
or a decision by the CITY on any aspect of the work shall be directed to the project
manager.
B. The CITY shall review submittals by the CONSULTANT and provide prompt response
to questions and rendering of decisions pertaining thereto, to minimize delay in the
progress of the CONSULTANT'S work. The CITY will keep the CONSULTANT
advised concerning the progress of the CITY'S review of the work. The CONSULTANT
agrees that the CITY'S inspection, review, acceptance or approval of CONSULTANT'S
work shall not relieve CONSULTANT'S responsibility for errors or omissions of the
CONSULTANT or its sub-consultant(s) or in any way affect the CONSUTANT's status
as an independent contractor of the CITY.
SECTION V -TERMINATION
A. The CITY, at its sole discretion, may terminate this CONTRACT for any reason -- with
or without cause -- by delivering written notice to CONSULTANT personally or by
certified mail at 1600 Hwy. 6, Suite 250, Sugar Land, Texas 77478 Immediately after
receiving such written notice, the CONSULTANT shall discontinue providing the
services under this CONTRACT.
B. If this CONTRACT is terminated, CONSULTANT shall deliver to the CITY all
drawings, special provisions, field survey notes, reports, estimates and any and all other
documents or work product generated by the CONSULTANT under the CONTRACT,
entirely or partially completed, together with all unused materials supplied by the CITY
on or before the 15`h day following termination of the CONTRACT.
C. In the event of such termination, the CONSULTANT shall be paid for services performed
prior to receipt of the written notice of termination. The CITY shall make final payment
within sixty (60) days after the CONSULTANT has delivered to the CITY a detailed
invoice for services rendered and the documents or work product generated by [he
CONSULTANT under the CONTRACT.
D. If the remuneration scheduled under this contract is based upon a fixed fee or definitely
ascertainable sum, the portion of such sum payable shall be proportionate to the
percentage of services completed by the CONSULTANT based upon the scope of work.
E. In the event this CONTRACT is terminated, the CITY shall have the option of
completing the work, or entering into a CONTRACT with another party for the
completion of the work.
-4-
F. If the CITY terminates this CONTRACT for cause and/or if the CONTRACTOR
breaches any provision of this CONTRACT, then the CITY shall have all rights and
remedies in law and/or equity against CONSULTANT. Venue for any action or dispute
arising out of or relating to this CONTRACT shall be in Brazoria County, Texas. The
laws of the State of Texas shall govern the terms of this CONTRACT. The prevailing
party in the action shall be entitled to recover its actual damages with interest, attorney's
fees, costs and expenses incurred in connection with the dispute and/or action.
CONSULTANT and CITY desire an expeditious means to resolve any disputes that may
arise between under [his CONTRACT. To accomplish this, the parties agree to
mediation as follows: If a dispute arises out of or relates to this CONTRACT, or the
breach thereof, and if the dispute cannot be settled through negotiation, then the parties
agree first to try in good faith, and before pursuing any legal remedies, to settle the
dispute by mediation of a third party who will be selected by agreement of the parties.
SECTION VI -ENTIRE AGREEMENT
This CONTRACT represents the entire agreement between the CITY and the CONSULTANT and
supersedes all prior negotiations, representations, or contracts, either written or oral. This CONTRACT
may be amended only by written instrument signed by both parties.
SECTION VII -COVENANT AGAINST CONTINGENT FEES
The CONSULTANT affirms that he has not employed or retained any company or person, other than a
bona fide employee working for the CONSULTANT to solicit or secure this CONTRACT, and that he
has not paid or agreed to pay any company or person, other than a bona fide employee, any fee,
commission, percentage brokerage fee, gift, or any other consideration, contingent upon or resulting from
the award or making of the CONTRACT. For breach or violation of this clause, the CITY may terminate
this CONTRACT without liability, and in its discretion, may deduct from the CONTRACT price or
consideration, or otherwise recover, the full amount of such fee, commission, percentage brokerage fee,
gift, or contingent fee that has been paid.
SECTION VIII- SUCCESSORS AND ASSIGNS
This CONTRACT shall not be assignable except upon the written consent of the parties hereto
The parties have executed this CONTRACT this 28th day of July , 2008.
CIT PEARLAND,TEXAS
Bill Eisen, City Manager 7/28/08
CONSUL ANT
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Exhibd "B"
R2008-103
ROW Svcs. DR0602
Cowart Creek Diversion
Texas Land Professionals, Inc.
1600 Highway 6 • Suite 250 ~ Sugar Land, Texas 77478
RIGHT OF WAY AND ACQUISITION SERVICES PROPOSAL
July 15, 2008
Mr. Anthony Vu
City of Pearland
3519 Liberty Drive
Pearland, TX 77518
Re: Proposal for the Fee Simple Acquisition of 18 Pazcels of Land as related to the Cowart's
Creek Diversion (East/West) Project
Dear Mr. Vu:
Below you will find a proposal for the right of way work for the fee simple acquisition of 18 pazcels
of land for the Cowart's Creek Diversion (East/West) Project:
Estimated Parcels Fee Per Parcel $ Total $
18 3,000.00 54,000.00
Total
$54,000.00
This proposal will not exceed the estimated $54,000.00 without prior consent from the City of
Pearland.
Scope of Services (see attached Exhibit "A")
This project will be billed on the City's Milestones schedule.
Per pazcel fee includes fees for mileage, copies/reproduction costs, meeting attendance, ect.
Thank you for allowing us the opportunity to submit this proposal for acquisition services and
please contact me at 281.207.0550 if I can answer any questions or be of further assistance.
Sincerely,
David Parkerson
Texas Land Professionals, Inc.
Toll Free: (800) 960-7414 Tel: (281) 207-0550 ~ Fax (281) 207-0551
EXHIBIT A
RIGHT OF WAY
SCOPE OF SERVICES
FOR
Cowart's Creek Diversion
(East/West)
DR0602
CTTY OF PEARLAND D-1 Revised 8/22/07
BASIC SERVICES: This Scope of Services covers the requirements for the
Consultant to famish qualified personnel to assist the City of Pearland (COP),
Texas on right of way related services. Services to be performed shall include,
but not be limited to, acquisition, negotiations, preparation of condemnation
packages, settlements/closing, and relocation. COP will contract separately with
appraisers, title companies, surveyors, environmental engineers, real estate and
condemnation attorneys and other professional services as needed. Consultant
will utilize the COP standard Acquisition schedule forms and documents.
Phase I: Proiect Administration
Project Kick-Off Meeting
1.1 Attend preliminary kick-off meeting with COP regarding the
Project to discuss project.
1.2 Consultants will collect, review and verify existing
information as well as other information provided by the COP
(and other) such as, but not limited to surveys, public and
private utilities, topographical maps, right of way (ROW)
acquisition/maps, record drawings, preliminary
plans/drawings, other plans/drawings; and be responsible for
any such information utilized in connection with services
performed.
1.3 Discuss project requirements and delineation of consultant
responsibilities.
1.4 Discuss individual parcels and their relations to the project
as a whole.
1.5 Provide a project plan of action and schedule to the COP
that outlines the scope as discussed.
2. Communication
2.1 Maintain can-ent status reports of all parcel and project
activities and provide monthly or as requested by COP.
2.2 Provide monthly summaries of project expenses including
amounts authorized, amounts paid and budget forecasting or
less frequent as required by COP.
2.3 Attend monthly progress meetings to discuss progress,
schedule, problems and resolutions or as requested by
COP.
CITY OF PEARLAND D-2 Revised S/22/07
3. File Management
3.1 Create individual parcel files per COP standards.
3.2 Maintain copies of all correspondence and contacts with
property owners.
3.3 Prepare invoices utilizing the COP standard payment
submission forms with supporting documentation.
3.4 Maintain records of all payments, amount, and date paid.
3.5 Furnish individual parcel files to COP in hard file and PDF
format.
Phase II: Land Acquisition
4. Title services
4.1 Review preliminary title commitment or preliminary title
search. Cost to preliminary title will be paid by COP and will
not be provided in the scope of work.
4.2 Analyze preliminary title report to determine potential title
problems, propose methods to cure title deficiencies.
5. Negotiations
5.1 Review all appraisal reports for each parcel to determine
consistency of values, supporting documentation related to
the conclusion reached.
5.2 Initial contact in the form of an informational letter to each
landowner describing the project and its impact upon the
landowner's property.
5.3 Follow up on initial contact with a phone call to schedule a
face-to-face meeting with the landowner.
5.4 Prepare the initial offer letter, instruments of conveyance and
any other documents required or requested by COP on
applicable COP fortes.
5.5 Meet in person and negotiate in "Good Faith" with the
landowner to work out and obtain in an agreement and
compensation that is beneficial to the owner and the COP.
5.6 Present the written offer in person where practical, and
deliver appraisal report.
5.7 Maintain follow up contacts and secure the necessary
instrument upon acceptance of the offer for closing
5.8 Respond to property owner inquiries verbally and in writing
in a timely fashion.
5.9 Prepare a negotiator contact report for each parcel per
contact.
CITY OF PEARLAND D-3 Revised 8/22/07
5.10 Advise property owner on the Administrative Settlement
process. Transmit to COP any written counter offer form
property owners including supporting documentation, along
with a recommendation from provider.
5.11 When "Good Faith" negotiations fail after at least two face-
to-face meetings and reasonable effort and correspondence
with the landowner, the consultant will provide evidence of
negotiations and correspondence and meet with the COP to
discuss further action.
5.12 When the prescribed date for an administrative offer passes
without response from the landowner the consultant will
prepare a condemnation file according to the COP direction
and in conjunction with the City Attorney's request.
5.13 Prepare final offer letter, documents of conveyance as
necessary.
5.14 Perform those duties required to secure agreements to allow
the project to commence forward.
5.15 Perform those duties required to coordinate the relocation of
persons, families, businesses, farm or nonprofit
organizations affected by the COP property acquisition.
Phase III: Closing
6. Closing Services -Settlement
6.1 Title services, title insurance commitments, policies, closing
and escrow services and update title commitments will be
provided by the Title Company selected by the COP.
6.2 Attend closing as needed and provide closing services to
support the Title Company.
6.3 Record all original instruments, when applicable,
immediately after closing at the respective County Clerk's
Office, except for donations which be forwarded to COP for
acceptance prior to closing.
6.4 Coordinate with Title Company to secure all documents to
transfer clear title to the COP.
6.5 Prepare TREC promulgated Unimproved Property Contract,
if required by the Title Company.
6.6 Furnish recording information and copies of recorded
documents to COP.
6.7 Assist the property owner in curing the title in order to
complete the transaction.
CITY OF PEARLAND D-4 Revised 8/22/07
7. Closing Services -Condemnation
7.1 Maintain a copy of the condemned parcel. In an event of a
judgmenUaward, consultant shall coordinate with City's right
of way coordinator to obtain copies of all executed post
hearing documents for the condemned parcel. (award, JAO,
deposit letter)
7.2 If a settlement is agreed upon by both parties prior to
condemnation, consultant shall coordinate with the City's
Attorney to complete all necessary procedures to close the
file.
7.3 Provide all closed parcel files including condemned parcels
to COP.
8. Additional Services
8.1 Any changes to any parcel, including but not limited to, plan
changes, splits of the parcel, re-appraisal, plat changes,
survey changes, or other changes will be billed at an hourly
rate not to exceed per parcel amount.
CITY OF PEARLAND D-5 Revised 8/22/07
Exhibit "C"
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