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Item 4C MemoCITY OF SOUTHLAKI MEMORANDUM (October 20, 2015) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Director of Public Works Item 4C Subject: Authorize expenditures with Accessology Too, LLC. in an amount not to exceed $53,950 Action Requested: Authorize expenditures with Accessology Too, LLC, in an amount not to exceed $53,950. Background Information: The Americans with Disabilities Act (ADA) of 1990 is a comprehensive piece of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life. Title II of that Act specifically requires that state and local governments ensure that individuals with disabilities are not excluded from programs, activities or other services offered. In order to meet these requirements and to examine the ADA compliance within the City, a four (4) phase evaluation process will be conducted over the next 3 years to assess City buildings, sidewalks/intersections, parks and internal programs. Phase I of the ADA Transition Plan Development project, which evaluated accessibility for 13 City owned buildings, was complete in FY 15. As part of the FY 2016 budget, City Council authorized $60,000 to begin Phase 11 of the evaluation of 8.1 miles of City sidewalks, two (2) signalized intersections and all unsignalized intersections in the City. The sidewalks and two (2) signalized intersections will be identified prior to, and confirmed at the kickoff meeting for Phase 11. The consultant will assist us in this identification process to ensure we are using our shared resources effectively and efficiently. Financial Considerations: Funding for Phase I of the ADA Transition Plan Development was authorized by the City Manager in FY 15 in an amount of $40,000. Item 4C Phase II funding was increased to $60,000 due to the engineering analysis needs required by the consultant to evaluate 8.1 miles of sidewalks and the two (2) signalized intersections. Strategic Link: Ensuring that the City's internal programs, building facilities, parks, sidewalks and intersections are ADA compliant links to the City's strategy map in multiple areas: infrastructure, safety & security, and quality development. The specific corporate objectives that are met by this approval include: achieving the highest standards of safety and security; collaborate with select partners to implement service solutions; and invest to provide and maintain high quality public assets. Citizen Input/ Board Review: N/A Legal Review: Yes Alternatives: The City Council may approve or deny this request. Supporting Documents: Professional Services Agreement Phase II: Scope, Services and Fees Staff Recommendation: Authorize expenditures with Accessology Too, LLC, in an amount not to exceed $53,950. Staff Contact: Robert H. Price, P.E., Public Works Director Blake Williams, Assistant to the Director AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made this 13th day of October , 2015 by and between the City of Southlake, Texas (hereinafter referred to as "CITY"), and Accessology Too, LLC. (hereinafter referred to as "CONSULTANT"). WHEREAS, CITY contemplates the need to perform an Americans with Disability (ADA) Assessment and Transition Plan development document project is to be known as the ADA Transition Plan - PHASE II and hereinafter referred to as the "Project". WHEREAS, CONSULTANT is qualified, able, and desirous of performing the necessary work upon which the Project is based and is willing and able to work with CITY staff to organize and coordinate the professional services necessary to complete the Project. NOW, THEREFORE, CITY engages CONSULTANT to perform, and CONSULTANT agrees to perform, the consulting work for the Project, as more fully described herein below, and CITY agrees to pay as compensation, and CONSULTANT agrees to accept as compensation, the payments on the dates and in the amounts herein specified, all in accordance with the terms more fully set out below and as provided in Attachment A which is attached hereto and incorporated by reference as if fully set forth herein. I. ARTICLE PROFESSIONAL SERVICES A. Scope of Work CONSULTANT will provide the supervision, direction, personnel and equipment to perform the consulting services outlined in PHASE II of Attachment A in accordance with the terms set forth in this Agreement and in the scope of PHASE II of Attachment A. B. Definitions Services refer to the professional services performed by CONSULTANT pursuant to this Agreement. C. Changes CITY, without invalidating the Agreement, may order changes within the general scope of the work required by the Agreement by altering, adding to and/or deducting from the work to be performed. If any change causes an increase or decrease in CONSULTANT's cost of, or the time required for, the performance of any part of the Services under the Agreement, an equitable adjustment will be made by mutual Page I agreement and this Agreement shall be modified in writing accordingly. D. Coordination with Owner The CITY shall make available to CONSULTANT for use in performing Services hereunder all existing plans, maps, field notes, statistics, computations and other data in the CITY's possession relative to existing facilities and to the Project. E. Site and Local Conditions CONSULTANT has the right to examine the site in order to become acquainted with local conditions and accepts conditions at the site unless otherwise noted in writing to the CITY. Any coordination or scheduling of work by CITY shall not relieve CONSULTANT from its responsibilities specified hereunder. Necessary arrangement for access to any site by CONSULTANT's employees will be made with CITY. P. Assignment and Subcontractors/Third Party Rights The rights and obligations covered herein are personal to each party hereto and not to any third party and for this reason neither this Agreement nor any contract hereunder shall be assigned be either party in whole or in part; nor shall CONSULTANT subcontract any of its obligations under this Agreement without prior written consent of CITY. Notwithstanding, nothing in this section shall be construed to prohibit CONSULTANT from supplementing its work force with individual, independent contractors who work for CONSULTANT as CONSULTANT's agents, on an occasional basis, as needed from time to time, under the supervision and control of CONSULTANT, provided that CONSULTANT does not attempt to avoid or assign responsibility for any of CONSULTANT's duties under this Agreement. The occasional use of such individual, independent contractors by CONSULTANT shall not require City's prior approval. G. Independent Contractor CONSULTANT covenants and agrees that it will perform the work hereunder as an independent contractor, and not as an officer, agent, servant, or employee of CITY; that CONSULTANT shall have exclusive control of and exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors, and consultants; that the doctrine of respondent superior shall not apply as between CITY and CONSULTANT, its officers, agents, employees, contractors, subcontractors, and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between CITY and CONSULTANT, H. Disclosure Page 2 By signature of this contract, CONSULTANT warrants to CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interests, direct or indirect, in property abutting the proposed Project and business relations with abutting property owners. CONSULTANT further warrants that it will make disclosure in writing of any conflicts of interest that develop subsequent to the signing of this contract and prior to final payment under the contract. Finally, consultant warrants that it has submitted to the City a completed Conflicts of Interest Questionnaire as required by Chapter 176 of the Texas Local Government Code. I. Approval by CITY Approval by CITY of this Agreement shall not constitute or be deemed to be a release of the responsibility and liability of CONSULTANT, its officers, agents, employees, and subcontractors for the accuracy and competency of the Services performed under this Agreement, including but not limited to any consulting documents or reports. Such approval shall not be deemed to be a waiver or an assumption of such responsibility and liability by CITY for any negligent act, error, or omission in the performance of CONSTULTANT'S professional services or in the conduct or preparation of the assessment report or other documents by CONSULTANT its officers, agents, employees and subcontractors, it being the intent of the parties that approval by CITY signifies the CITY's approval of only the general design concept of the Improvements to be constructed. J. Indemnification CONSULTANT SHALL AND DOES HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM ANY AND ALL DAMAGES, LOSS OR LIABILITY OF ANY KIND WHATSOEVER, BY REASON OF DEATH OR INJURY TO PROPERTY OR PERSON CAUSED BY ANY OMISSION OR NEGLIGENT ACT OF CONSULTANT, ITS OFFICERS, AGENTS, EMPLOYEES, INVITEES, OR OTHER PERSONS FOR WHOM IT IS LEGALLY LIABLE, WITH REGARD TO THE PERFORMANCE OF THIS CONTRACT, AND CONSULTANT WILL, AT ITS COST AND EXPENSE, DEFEND, PAY ON BEHALF OF, AND PROTECT CITY AND ITS OFFICERS, AGENTS, AND EMPLOYEES AGAINST ANY AND ALL SUCH CLAIMS AND DEMANDS. TO THE EXTENT PERMITTED BY LAW, CITY SHALL AND DOES HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS CONSULTANT, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM ANY AND ALL DAMAGES, LOSS OR LIABILITY OF ANY KIND WHATSOEVER, BY REASON OF DEATH OR INJURY TO PROPERTY OR PERSON CAUSED BY ANY OMISSION OR NEGLIGENT ACT OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES, INVITEES, OR OTHER PERSONS FOR WHOM IT IS LEGALLY LIABLE, WITH REGARD TO THE PERFORMANCE OF THIS CONTRACT, AND CITY WILL, AT ITS COST AND EXPENSE, DEFEND, PAY ON Page 3 BEHALF OF, AND PROTECT CONSULTANT AND ITS OFFICERS, AGENTS, AND EMPLOYEES AGAINST ANY AND ALL SUCH CLAIMS AND DEMANDS. K. No Third Party Beneficiary For purposes of this Agreement, including its intended operation and effect, the parties specifically agree and contract that: (1) this Agreement only affects matte rsldisputes between the parties to this Agreement, and is in no way intended by the parties to benefit or otherwise affect any third person or entity (except the indemnitees identified or described in Article I, Section J., above), notwithstanding the fact that such third person or entities may be in a contractual relationship with CITY and CONSULTANT, or both; and (2) the terms of this Agreement are not intended to release, either by contract or operation of law, any third person or entity from obligations they owe to either CITY or CONSULTANT. L. Successors and Assigns CITY and CONSULTANT each bind themselves and their successors, executors, administrators and assigns to the other party to this Agreement and to the successors, executors, administrators and assigns of such other party with respect to all covenants of this Agreement. Neither CITY nor CONSULTANT shall assign or transfer its interest in this Agreement without prior written consent of the other. IL ARTICLE CITY'S RESPONSIBILITIES CITY will: 1. Provide full information as to CITY's requirements for the Project; 2. Assist CONSULTANT by placing at CONSULTANT's disposal all information in CITY's control or knowledge which is pertinent to the Project. 3. Examine all work presented by CONSULTANT and respond within reasonable time and in writing to the material submitted by CONSULTANT; 4. Give prompt written notice to CONSULTANT whenever CITY observes or otherwise becomes aware of any defect in CONSULTANT's work. 5. Designate in writing a person to act as its representative with respect to this Agreement, such person having complete authority to transmit instructions, receive information, and make or interpret the CITY's decisions; 6. Provide all information and criteria as to the CITY's requirements, Page 4 objectives, and expectations for the Project including all numerical criteria that are to be met and all standards of development, design, or construction. 7. Provide to the CONSULTANT all previous studies, plans, or other documents pertaining to the Project and all new data reasonably necessary in the CONSULTANT's opinion, upon which the CONSULTANT may rely; and 8. Arrange for access to the site and other private or public property as required for the CONSULTANT to provide its services. III. ARTICLE COMPENSATION FOR PROFESSIONAL SERVICES The CITY shall compensate CONSULTANT for services rendered under this Agreement, in accordance with the following: For the completion of the work contemplated in Article 1, the CONSULTANT shall be paid on a monthly basis for services rendered, provided that the total paid to CONSULTANT for all services under this Agreement shall not to exceed $53,950 for tasks related to PHASE II, as outlined in the proposal attached hereto as EXHIBIT A. Final payment will be made upon the delivery of the full Draft Self -Evaluation and Transition Plan. IV. ARTICLE TIMES OF BILLING AND PAYMENT The CONSULTANT shall bill CITY monthly for any services incurred in accordance with the work performed, subject to the limits set out in Article Ill. Payment shall be due upon receipt by CITY of a properly prepared and correct invoice from CONSULTANT. CONSULTANT's invoices shall be accompanied by such records or other written proof as CITY deems necessary to verify the billings. Invoices shall be mailed to the City Finance Department's office at 1400 Main Street, Suite 440 Southlake, Texas 76092. If CITY fails to make payment due CONSULTANT within thirty (30) days of the day when payment for services and expenses is due under the terms of this Agreement, CONSULTANT shall be entitled to interest on such unpaid sums at the rate provided in Chapter 2251 of the Texas Government Code. Page 5 V. ARTICLE STANDARD OF CARE In performing its professional services, the CONSULTANT will use that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided, and in accordance with any applicable governmental laws, regulations and ordinances.. VI. ARTICLE PERIOD OF SERVICE This Agreement shall be effective upon execution by CITY and CONSULTANT, and shall remain in force until work is completed on the Project or until terminated under the provisions hereinafter provided in Article Vlll. VII. ARTICLE TERMINATION The CITY may terminate this Agreement at any time for convenience, with or without cause by giving written notice to the CONSULTANT. Such termination may be made effective on such future date as agreed by the parties, but absent such agreement shall be immediate. Upon receipt of such notice the CONSULTANT shall immediately discontinue all services and work and the placing of all orders or the entering into contracts for supplies, assistance, facilities, and materials in connection with the performance of this Agreement and shall proceed to cancel promptly all existing contracts insofar as they are chargeable to this Agreement. The CONSULTANT, upon termination, shall be paid for all services rendered through the date of termination together with any additional reimbursable expense then due. VIII. ARTICLE OWNERSHIP OF DOCUMENTS All completed or partially completed reports prepared under this Agreement, including the original drawings in both paper and electronic formats, shall become the property of CITY if this Agreement is terminated. Upon completion and payment of the contract, the final design, drawings, specifications and documents in both paper and electronic formats shall be owned by CITY. 2. Reuse, change or alteration by CITY or others acting by or on behalf of CITY of such documents without the permission of CONSULTANT shall Page 6 be at CITY's sole risk. IX. ARTICLE INSURANCE CONSULTANT shall carry and maintain at all times relevant hereto, at CONSULTANT's expense, insurance of the type and of minimum coverage limits as follows: Workers Compensation - Statutory Employer's Liability - Limits as required by the State of Texas or Waiver of Liability Form. 2. Comprehensive General Liability, Bodily Injury and Property Damage including contractual liability in a combined single limit _ $500,000 per occurrence. 3. Comprehensive Automotive Liability, Bodily Injury and Property Damage in a combined single limit - $9,000,000 per accident. Certificates of insurance for the above coverage in a form acceptable to CITY, evidencing the coverage required above, shall be provided to CITY within ten (10) business days after execution of this Agreement and prior to issuing Notice to Proceed. Such certificates shall provide that the insurer will give CITY not less than ten (10) days notice of any material changes in or cancellation of coverage. In the event any subcontractor of CONSULTANT, with or without CITY's consent, provides or renders services under this Agreement, CONSULTANT shall ensure that the subcontractor's services are covered by the same insurance limits as set forth above. CONSULTANT shall not commence work under this Agreement until it has obtained Professional Liability (Errors and Omissions) Insurance as required hereunder and such insurance coverage has been approved by CITY. Such insurance shall be in the minimum amount of $1,000,000 and shall include coverage of Contractually Assumed Liability. The insurance coverage prescribed herein shall be maintained until one (1) year after CITY's acceptance of the project and shall not be canceled without prior written notice to CITY. In this connection, upon the signing and return of this Agreement by CONSULTANT, a Certificate of Insurance shall be furnished to CITY as evidence that the insurance coverage required herein has been obtained by CONSULTANT, and such certificate shall contain the provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to CITY. CONSULTANT shall notify CITY within ten (10) days of any modification or alteration in such Professional Liability (Errors and Omissions) Insurance. Page 7 AUTHORIZATION, PROGRESS AND COMPLETION CITY and CONSULTANT agree that the Project is planned to be completed by September 30, 2016. CONSULTANT shall employ manpower and other resources, and use professional skill and diligence to meet the schedule; however, CONSULTANT shall not be responsible for schedule delays resulting from conditions beyond its control. By mutual agreement, CITY and CONSULTANT may modify the Project schedule during the course of the Project and if such modifications affect CONSULTANT`s compensation, it shall be modified accordingly, subject to CITY`s approval. It is understood that this Agreement contemplates full and complete services for this Project, including any and all Services necessary to complete the work. For additional Consulting Services, the authorization by CITY shall be in writing and shall include the definition of the services to be provided, the schedule for commencing and completing the services, and the basis for compensation as agreed upon by CITY and CONSULTANT. XL ARTICLE NOTICE Any notice required under this Agreement will be in writing and given either personally, by registered or certified mail, return receipt requested, or by a nationally recognized overnight courier service, addressed to the parties as follows: If to CITY: Shana Yelverton City Manager City of Southlake 1400 Main Street, Suite 460 Southlake, Texas 76092 Phone: (817)-748-8400 Fax: (817)-748-8010 If to CONSULTANT: Kristi Avalos President/CEO Accessology Too, LLC. 301 W. Louisiana St. McKinney, Texas 75069 Phone: (972) 434 0068 Fax: (972) 874 9851 Page 8 All notices shall be effective upon the date of receipt. XII, ARTICLE SEVERABILITY In the event that any provision of this Agreement shall be found to be void or unenforceable, such finding shall not be construed to render any other provisions of this Agreement either void or unenforceable. All provisions, which are void or unenforceable, shall not substantially affect the rights or obligations granted to or undertaken by either party. XIII. ARTICLE VENUE -LAW Venue of any suit or cause of action under this Agreement shall lie exclusively in Tarrant County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. IN WITNESS WHEREOF the parties have caused this Agreement to be executed in two equal originals on the date and year first above mentioned, CITY OF SOUTHLAKE: By: Date: Laura Hill, Mayor ATTEST: By: Date: Lori Payne, City Secretary Page 9 CONSULTANT: ACCESSOLOGY TOO, LLC. By: Date: /0- / 3 risti Avalos., President/CEO THE STATE OF TEXAS § COUNTY OF TARRANT § Before me on this day personally appeared known to me [or proved to me on the oath of or through (description of identity card or other document)] to be the person whose name is subscribed to the foregoing instrument and that he/she is the duly authorized of , and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this y J da of A.Dj p CCo (SEAL) Notary ublic, State of Texas Notary's Name Printed BE tfNQA CAROL TERRY 1f�Y �v 4 Notary Public, State of Texas My Cornmisslon Explres February 12, 2011 Page 10 CITY OF SOUTHLAKE, TX ADA TRANSITION PLAN Project Scope & Fee Proposal Inventory SOUTHLAKE TRANSITION PLAN PHASE TWO Pedestrian Access — sidewalks, intersections/curb ramps, pedestrian pathway: Public Rights of Way: 2 Signalized Intersections 16.1 linear miles of sidewalk All unsignalized intersections along the sidewalks evaluated will also be evaluated. Task 1— Proiect Management 1.1 The Consultant will maintain project records, budgets, and communications for the duration of this phase. 1.2 The Consultant will prepare a project schedule and update it on a monthly basis. 1.3 The Consultant will prepare monthly progress reports. 1.4 The Consultant anticipates bimonthly calls between the Consultant's Project Manager and the designated Client staff to review the status of tasks and to keep the schedule current. Task 2 — Self Evaluation: Signalized Intersections; Unsignalized Intersections; Arterial Sidewalks 2.1 The Consultant will meet with Client and City staffs to introduce the proposed project tasks schedule. The proposed method for prioritizing barrier removal projects identified during the self-evaluation task will be presented. The Consultant will coordinate with Client and City staffs to identify and obtain all necessary documents and materials to support the self-evaluation process. Task 3 —Transition Plan Development 3.1 Coordinate with Client staff in the development of a strategy for developing the Transition Plan, including a review of Client ordinances, design policies and design standards related to curb ramps and sidewalks. Identify issues which should be addressed to confirm that policies are nondiscriminatory to people with disabilities. 3.2 Develop the Evaluation Process_ Assist the Client in developing a process and format to evaluate the accessibility improvements to be identified in Phase 2, utilizing prioritization and 11 CITY OF SOUTHLAKE, TX ADA TRANSITION PLAN Project Scope & Fee Proposal Inventory evaluation criteria. Existing evaluation methodology will be analyzed and recommendations made for necessary improvements. 3.4 Recommend prioritization criteria for creating an implementation schedule for accessibility improvements. 3.5 Prioritize the accessibility improvements by facility type and severity, providing cost estimates for the recommended modifications. 3.6 Evaluate and make recommendations on exceptions or exemptions that may apply under the terms of the ADA. This may include exemptions related to structures of historic significance, alterations affecting the fundamental nature of a service, activity or program under financial and administrative burden, or structural changes. Task 4 — Documentation 4.1 Prepare a plan summary document that will serve as a resource guide for Client staff. 4.2 Fill in the Self -Evaluation and Transition Plan. 4.3 Final Self -Evaluation and Transition Plan Fallowing review by the Client and relevant community review by Draft Plan, the Consultant will incorporate comments and prepare the Final Plan for presentation. Task 5 — Meetings 5.1 Progress meetings. Up to two (2) monthly progress meetings with Client staff and the newly created ADA Liaison Committee. 5.2 Miscellaneous Meetings. Up to one (1) teleconference meetings with various project stakeholders 7 CITY OF SOUTHLAKE, TX ADA TRANSITION PLAN Project Scope & Fee Proposal Inventory Fee and Expenses (Phase 2) The Consultant will perform the services in Tasks 1— 7 (Phase 2) for lump sum fee of $53,950. All permitting, application, and similar project fees (if applicable) will be paid directly by the Client. TASK # DESCRIPTION FEE #1 Project Management (Phase 2) $4,600 #2 Self -Evaluation: Two (2) Signalized Intersections $4,300 Unsignalized Intersection $13,500 Sidewalks: 8 miles of sidewalk corridors $11,950 #3 Transition Plan Development (Phase 2) $7,200 #4 Documentation (Phase 2) $4,900 #5 Meetings $7,500 PHASE TWO PROJECT TOTAL $53,954 Tota I Fee $ 53,950 Lump sum fees will be invoiced monthly based upon the overall percentage of services performed. Payment will be due within 25 days of receipt of invoices. 8