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Item 4H CITY OF SOUTH LAKE Item 4H MEMORANDUM (June 6, 2017) To: Shana Yelverton, City Manager From: Rob Cohen, Director of Public Works Subject: Approve Engineering Services Agreement with Halff Associates, Inc. for repairs to the Patterson's Pond spillway in an amount not to exceed $52,625. Action Requested: Approve Engineering Services Agreement with Halff Associates, Inc. for repairs to the Patterson's Pond spillway in an amount not to exceed $52,625. Background Information: The original intent of the project was to make necessary repairs/modifications to an existing retaining wall on the back side of lots on Patterson Way, backing up to the subdivision's retention/detention pond. This wall was being undermined by the drainage from the recently installed storm facilities which were part of the N. Kimball Avenue project. This wall was originally believed to be within the FEMA flood plain and the responsibility of the City to maintain. Prior to the N. Kimball Avenue project being completed, it was determined that the wall was constructed near the boundary of the flood plain but was in fact located on private property. Staff determined that the erosion issue needed to be addressed at once and directed the contractor to stabilize this area with the installation of additional armor along the bank below above referenced retaining wall as well as the outfall leading to the pond. These modifications have resolved the threat to the integrity of the retaining wall. Soon after the installation of these stabilization measures it was discovered that major erosion was occurring near and around the spillway on the east end of the retention/detention pond. The receiving stream bed for this pond has also experienced significant erosion in recent years. The City has an 8" sanitary sewer line that crosses immediately downstream of the spillway which could ultimately be compromised if the erosion is not addressed. Furthermore, the City's Shady Lane lift station is located less than Item 4H 300 feet downstream of the pond which could potentially be damaged if the spillway structure were to fail. The spillway structure is located within a drainage easement, and these repairs require heavy machinery. Therefore these repairs are the responsibility of the City by ordinance. Financial Considerations: $400,000 was budgeted in the Storm Water Utility System portion of the FY 2017 CIP budget. Strategic Link: The repairs to the Patterson's Pond spillway link to the City's strategy map relative to focus areas of Safety & Security and Infrastructure. The specific corporate objectives that are met by this construction project are to achieve the highest standards of safety & security and invest to provide & maintain high quality public assets. The critical business outcome is to engage in thoughtful planning to ensure continued high quality development that is integrated well into the current built environment. Citizen Input/ Board Review: N/A Legal Review: This is the standard Engineering Services Agreement that has been previously reviewed by the City Attorney. Alternatives: The Council may approve the Engineering Services Agreement or deny it. Supporting Documents: Location Map Engineering Services Agreement Staff Recommendation: Approve Engineering Services Agreement with Halff Associates, Inc. for repairs to the Patterson's Pond spillway in an amount not to exceed $52,625. Staff Contact: Rob Cohen, Director of Public Works Kyle D. Hogue, P.E., Deputy Director/City Engineer Page 2 of 2 AGREEMENT FOR ENGINEERING SERVICES THIS AGREEMENT is made this day of 2014 by and between the City of Southlake, Texas (hereinafter referred to as "CITY"), and Halff Associates, Inc. (hereinafter referred to as "ENGINEER"). WHEREAS, CITY contemplates the need to make repairs to the Patterson's Pond retention/detention pond spillway structure. This project is to be known as the Patterson's Pond Spillway Repair project and hereinafter referred to as the "Project". WHEREAS, ENGINEER is qualified, able, and desirous of performing the necessary engineering 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 ENGINEER to perform, and ENGINEER agrees to perform, the engineering work for the Project, as more fully described herein below, and CITY agrees to pay as compensation, and ENGINEER 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 ENGINEERING SERVICES A. Scope of Work ENGINEER will provide the supervision, direction, personnel and equipment to perform the engineering Services outlined in Attachment A in accordance with the terms set forth in this Agreement and in Attachment A. B. Definitions Services refer to the professional services performed by ENGINEER 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 ENGINEER'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 agreement and this Agreement shall be modified in writing accordingly. Page 1 D. Coordination with Owner The CITY shall make available to ENGINEER 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 ENGINEER 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 ENGINEER from its responsibilities specified hereunder. Necessary arrangement for access to any site by ENGINEER's employees will be made with CITY. F. 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 by either party in whole or in part; nor shall ENGINEER subcontract any of its obligations under this Agreement without the prior written consent of CITY. G. Independent Contractor ENGINEER 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 ENGINEER 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 ENGINEER, its officers, agents, employees, contractors, subcontractors, and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between CITY and ENGINEER. H. Disclosure By signature of this contract, ENGINEER 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. ENGINEER 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, Engineer 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 Page 2 Approval by CITY of this Agreement shall not constitute or be deemed to be a release of the responsibility and liability of ENGINEER, its officers, agents, employees, and subcontractors for the accuracy and competency of the Services performed under this Agreement, including but not limited to surveys, designs, working drawings and specifications and other engineering documents. 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 ENGINEER's professional services or in the conduct or preparation of the subsurface investigations, surveys, designs, working drawings and specifications or other engineering documents by ENGINEER, 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 ENGINEER 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 ENGINEER, ITS OFFICERS, AGENTS, EMPLOYEES, INVITEES, OR OTHER PERSONS FOR WHOM IT IS LEGALLY LIABLE, WITH REGARD TO THE PERFORMANCE OF THIS CONTRACT, AND ENGINEER 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. THE PROVISIONS OF THIS SECTION ARE SUBJECT TO THE LIMITATIONS OF TEXAS LOCAL GOVERNMENT CODE SECTION 271 .904 AND SHALL BE CONSTRUED TO THAT EFFECT. 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 matters/disputes 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 ENGINEER, 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 ENGINEER. L. Successors and Assigns CITY and ENGINEER each bind themselves and their successors, executors, Page 3 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 ENGINEER shall assign or transfer its interest in this Agreement without prior written consent of the other. II. ARTICLE CITY'S RESPONSIBILITIES CITY will: 1. Provide full information as to CITY's requirements for the Project; 2. Assist ENGINEER by placing at ENGINEER's disposal all information in CITY's control or knowledge which is pertinent to the Project, including executed right-of-way easements and final field survey data; 3. Examine all work presented by ENGINEER and respond within reasonable time and in writing to the material submitted by ENGINEER; 4. Pay all costs incident to advertising for obtaining bids or proposals from Contractors; 5. Give prompt written notice to ENGINEER whenever CITY observes or otherwise becomes aware of any defect in ENGINEER's work or in Contractor's work; 6. 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; 7. Provide all information and criteria as to the CITY's requirements, objectives, and expectations for the Project including all numerical criteria that are to be met and all standards of development, design, or construction. 8. Provide to the ENGINEER all previous studies, plans, or other documents pertaining to the Project and all new data reasonably necessary in the ENGINEER's opinion, such as site survey and engineering data, environmental impact assessments or statements, zoning or other land use regulations, etc., upon all of which the ENGINEER may rely; and 9. Arrange for access to the site and other private or public property as required for the ENGINEER to provide its services. 10. Provide any other information or assistance as outlined in Attachment B hereto. Page 4 III. ARTICLE COMPENSATION FOR ENGINEERING SERVICES The CITY shall compensate ENGINEER for services rendered under this Agreement, in accordance with the following: For the completion of the work contemplated in Article I, the ENGINEER shall be paid on a lump sum basis in an amount not to exceed $52,625 for Surveying and Engineering Services, Permitting, and Construction Services (as outlined in the attached proposal) as billed monthly by ENGINEER. IV. ARTICLE TIMES OF BILLING AND PAYMENT The ENGINEER shall bill CITY monthly for any services and expenses incurred in accordance with the work performed subject to the limits set out in Article III. Payment shall be due within thirty (30) days of receipt by CITY of a properly prepared and correct invoice from ENGINEER. ENGINEER's invoices shall be accompanied by such records or other written proof as CITY deems necessary to verify the billings. Invoices shall be made to City Finance Department's office at 1400 Main Street, Suite 440, Southlake, Texas 76092. If CITY fails to make payment due ENGINEER within thirty (30) days of the day when payment for services and expenses is due under the terms of this Agreement, ENGINEER shall be entitled to interest on such unpaid sums at the rate provided in Chapter 2251 of the Texas Government Code. V. ARTICLE ADDITIONAL ENGINEERING SERVICES In addition to performing the engineering services set out in Article I, hereof, ENGINEER agrees to perform additional services as requested by CITY from time to time and CITY agrees to compensate ENGINEER for such services in accordance with ENGINEER's standard hourly fee and expenses for actual time expended and actual out-of-pocket sums expended, such services to be one or more of the following: 1 . Make or prepare detailed description of sites, maps, or drawings related thereto and outside the scope of the Project; 2. Appearances before courts or boards on matters of litigation or hearings Page 5 related to the Project; 3. Preparation of environmental impact assessments or statements for any governmental agency; 4. Miscellaneous engineering work for CITY not related to the Project; 5. To provide resident project construction inspection, unless such inspection is not required, in writing, by the CITY; 6. Other services agreed to by the parties in writing and incorporated herein. VI. ARTICLE STANDARD OF CARE In performing its professional services, the ENGINEER 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. VII. ARTICLE PERIOD OF SERVICE This Agreement shall be effective upon execution by CITY and ENGINEER, and shall remain in force until work is completed on the Project or until terminated under the provisions hereinafter provided in Article VIII. VIII. ARTICLE TERMINATION The CITY may terminate this Agreement at any time for convenience, with or without cause by giving written notice to the ENGINEER. 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 ENGINEER 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 ENGINEER, upon termination, shall be paid for all services rendered through the date of termination together with any additional reimbursable expense then due. IX. ARTICLE Page 6 OWNERSHIP OF DOCUMENTS 1. 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 ENGINEER shall be at CITY's sole risk. X. ARTICLE INSURANCE ENGINEER shall carry and maintain at all times relevant hereto, at ENGINEER's expense, insurance of the type and of minimum coverage limits as follows: 1. Workers Compensation - Statutory Employer's Liability - Limits as required by the State of Texas. 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 - $1,000,000 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 ENGINEER, with or without CITY's consent, provides or renders services under this Agreement, ENGINEER shall ensure that the subcontractor's services are covered by the same insurance limits as set forth above. ENGINEER 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 construction project and shall not be canceled without prior written notice to CITY. In this connection, upon the signing and return of this Agreement by ENGINEER, a Certificate of Insurance shall be furnished to CITY as Page 7 evidence that the insurance coverage required herein has been obtained by ENGINEER, 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. ENGINEER shall notify CITY within ten (10) days of any modification or alteration in such Professional Liability (Errors and Omissions) Insurance. XI. ARTICLE AUTHORIZATION, PROGRESS AND COMPLETION CITY and ENGINEER agree that the Project is planned to be completed by March 2017. ENGINEER shall employ manpower and other resources, and use professional skill and diligence to meet the schedule; however, ENGINEER shall not be responsible for schedule delays resulting from conditions beyond its control. By mutual agreement, CITY and ENGINEER may modify the Project schedule during the course of the Project and if such modifications affect ENGINEER's compensation, it shall be modified accordingly, subject to CITY's approval. It is understood that this Agreement contemplates full and complete engineering services for this Project, including any and all Services necessary to complete the work. For additional Engineering 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 ENGINEER. XII. 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 Page 8 If to ENGINEER: Benjamin Pylant Water Resources Team Leader Halff Associates, Inc. 4000 Fossil Creek Boulevard Fort Worth, Texas 76137-2720 Phone: (817) 847-1422 Fax: (817) 232-9784 All notice shall be effective upon the date of receipt. XIII. 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. XIV. 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: Laura Hill, Mayor ATTEST: By: City Secretary Page 9 ENGINEER: HALLF ASSOCIATES, INC. By: Benjamin Pylant, Water Resources Team Leader 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 day of A.D. (SEAL) Notary Public, State of Texas Notary's Name Printed Page 10