Item 9A - 9C - Engineering Services Agreement
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AGREEMENT FOR ENGINEERING SERVICES
THIS AGREEMENT is made this _____ day of __________________, 2023 by
and between the City of Southlake, Texas (hereinafter referred to as “CITY”), and Kimley-
Horn and Associates, Inc. (hereinafter referred to as “ENGINEER”).
WHEREAS, CITY contemplates the need to perform intersection study and impact
fee update. This project is to be known as the Citywide Intersection Analysis and Impact
Fee update 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 th e 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 t he
Agreement, an equitable adjustmen t will be made by mutual agreement and this
Agreement shall be modified in writing accordingly.
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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.
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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 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 LIABL E, 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 Agreem ent 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.
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L. Successors and Assigns
CITY and ENGINEER each bind themselves and their successors, executors,
administrators and assigns to the other party to this Agreem ent 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 fo r 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.
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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 the amount of $244,000 for Engineering Services and
optional lump sum in an amount not to exceed $5,500 (as outlined in the attached
proposal) with a total not to exceed cost ceiling of $249,500 as billed monthly by
ENGINEER. This contract only authorizes Task 1 as described in Attachment A. Task 2,
3, and 4 will need written noticed to proceed from the City to be authorized for billing.
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 (see Attachment A) 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
related to the Project;
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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 conv enience, 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.
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IX. ARTICLE
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
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ENGINEER, a Certificate of Insurance shall be furnished to CITY as 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 as
expeditious as possible. 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
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If to ENGINEER: Tom Grant, P.E., PTOE
Project Manager
Kimley-Horn and Associates, Inc.
2201 West Royal Ln., Suite 275
Irving, Texas 75063
Phone: (214) 420-5600
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: _________________________________
John Huffman, Mayor
ATTEST:
By: _________________________________
City Secretary
ENGINEER: Kimley-Horn and Associates, Inc.
By:
L. Nathan Ante, P.E., Senior Vice President
THE STATE OF TEXAS §
COUNTY OF DALLAS §
Before me on this day personally appeared
or proved to me on the oath of
(description of identity card or other document):
subscribed to the foregoing instrument and tl
5cni o r YLc e �resulevr+ of (c or n
L.. llia n Anfc known to
_ or through
to be the person whose name is
at he/she is the duly authorized
ands Rssoe4te5.Mnr . . and
acknowledged to me that he/she executed t e same for the purposes and consideration
therein expressed.
Given under my hand and seal of office this �c{day of 1'�t(� ,
A.D. QQ a
(SEAL)
Notary Public, State of Tex
TINA L KRAATZ
Notary Public, State of Texas j �� L (trCt0.'i Z
Comm. Expires 02-28.2024
Notary ID 132381938 Notary's Name Printed
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