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Res 07-56 Authorizing an Agreement with Pate EngineersTOWN OF WESTLAKE RESOLUTION NO. 07-56 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING AN AGREEMENT WITH PATE ENGINEERS TO PROVIDE ENGINEERING SERVICES FOR THE DESIGN AND LAYOUT OF THE SOUTH PARKING LOT EXTENSION, RELOCATION OF UTILITY LINES AND SITE DRAINAGE AND GRADING DESIGN FOR THE PROPOSED WESTLAKE PERFORMING ARTS AND SCIENCE CENTER. WHEREAS, this agreement with Pate Engineers is necessary to maintain the project timeline and will include civil engineering services as described relating to the proposed Westlake Performing Arts & Science Center; and WHEREAS, the Board of Aldermen finds that the funding necessary for this contract is included in the adopted FY 2006-07 budget; and WHEREAS, the Board of Aldermen finds that the passage of this Resolution is in the best interest of the citizens of Westlake and the staff, students and families of Westlake Academy. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: The above findings are hereby found to be true and correct and are incorporated herein in the entirety. SECTION 2: The Board of Aldermen of the Town of Westlake, Texas, hereby approves the contract with Pate Engineers, regarding the engineering services relating to the Westlake Performing Arts & Science Center, attached as Exhibit "A", and further authorizes the Town Manager to execute the agreement on behalf of the Town of Westlake, Texas. PASSED AND APPROVED ON THIS 27' DAY OF AUGUST 2007. ATTEST:, 4Scott Bradley, Mayor fj�--�A Ki Sutter, TRMC, Town Secretary Trent O. Petty, Town ager CONTRACT FOR PROFESSIONAL SERVICES THIS CONTRACT is entered into on Auizust 2007 by and between the Town of Westlake ("TOWN") and Pate Engineers, Inc. ("CONSULTANT"). The TOWN engages the CONSULTANT to perform Professional Engineering Services on the Performing Arts and Science Center at the Civic Center. SECTION I - SERVICES OF THE CONSULTANT The CONSULTANT shall perform the following professional services to TOWN 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 provide engineering services in connection with the Performing Arts and Science Center at the Civic Center. See Exhibit A, attached, for a detailed SCOPE OF WORK. B. The CONSULTANT shall submit all final construction documents in both hard copy and electronic format. Plans shall be AutoCAD compatible and all other documents shall be Microsoft Office compatible. The software version used shall be compatible to current TOWN standards. Other support documents, for example, structural calculations, drainage reports and geotechnical reports, shall be submitted in hard copy only. All Record Drawings electronic files shall be submitted to the TOWN in TIF format. ELECTRONIC MEDIA DISCLAIMER The information contained in the signed and sealed documents are the "Instruments of Service" and should be deemed to be correct and superior to any electronic information provided to "TOWN". "CONSULTANT" is furnishing this electronic information as a convenience to "TOWN" and it is a component of the instruments of service for this project. It is intended only for the "TOWN'S" benefit on the specific project and for a specific use. There is no representation of the suitability of the electronic information for other purposes or of the durability of the information or the medium in or on which the information is furnished. "TOWN" agrees to indemnify and hold harmless "CONSULTANT" for any and all claims, damages, costs or suits arising out of any action taken against "CONSULTANT" as a result of changes made to the instruments of service without the prior knowledge and approval of "CONSULTANT". Transfer of the information does not transfer any license to use the underlying software or extinguish the rights of the transferor to reuse the information in the general course of a professional practice. DALLAS • 8150 8rookr ver Drive, Suite S-700 • Dallas, Texas 75247 • T. 214.357.2981 R 214.357.2485 Tall free: 866.533.PATE (7283) www.pateeng.corn C. 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 TOWN upon request, shall become subject to the Open Records Laws of this State. D. 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 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 TOWN 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 TOWN 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 TOWN and only after the TOWN has been provided with written notice of such Change in Coverage, such notice to be sent to the TOWN either by hand delivery to the TOWN Manager or by certified mail, return receipt requested, and received by the TOWN 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 TOWN 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. E. The CONSULTANT shall indemnify and hold the TOWN, its officers, agents, and employees, harmless from any claim, loss, damage, suit, and liability for which CONSULTANT is legally liable, including reasonable expenses of litigation, court costs, and attorney's fees, for injury to or death of any person, for DALLAS • 8150 Brookriver Drive, Suite 5-700 • Dallas, Texas 75247 • T: 214.357.2981 F: 214.357.2985 Toll Free: 866.533.PATE (7283) www,pateang.com 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. F. 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 TOWN. SECTION II - PERIOD OF SERVICE This CONTRACT will be binding upon execution and end after two years from the date of execution. SECTION III - CONSULTANT'S COMPENSATION A. The method of payment for this CONTRACT is lump sum. Total compensation for the services performed shall be $36,400.00. B. The TOWN shall pay the CONSULTANT in installments based upon detailed invoices submitted by the CONSULTANT C. The TOWN shall make payments to the CONSULTANT within thirty (30) days after receipt and approval of a detailed invoice. Invoices shall be submitted on a monthly basis. SECTION IV - THE TOWN'S RESPONSIBILITIES A. The TOWN 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 TOWN on any aspect of the work shall be directed to the project manager. B. The TOWN 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 TOWN will keep the CONSULTANT advised concerning the progress of the TOWN'S review of the work. The CONSULTANT agrees that the TOWN'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 CONSULTANT's status as an independent contractor of the TOWN. DALLAS • 8150 8rookriver Drive, Suite 5-700 • Dallas, Texas 75247 • T: 214.357.2981 F: 214.357.2985 Toq Free: 866.533.PATE [7283] www.pateeng.com SECTION V - TERMINATION A. The TOWN, 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 5150 Brookriver Drive, Suite S-700 Dallas, Texas 75247. 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 TOWN 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 TOWN on or before the 15th 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 TOWN shall make final payment within sixty (60) days after the CONSULTANT has delivered to the TOWN a detailed invoice for services rendered and the documents or work product generated by the 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 TOWN shall have the option of completing the work, or entering into a CONTRACT with another party for the completion of the work. F. If the TOWN terminates this CONTRACT for cause and/or if the CONSULTANT breaches any provision of this CONTRACT, then the TOWN 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 Tarrant 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 TOWN desire an expeditious means to resolve any disputes that may arise between under this 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. DALLAS • 8150 Brookriver Drive, Suite S-700 • Dallas, Texas 75247 - T: 214.357.2981 F: 214.357.2985 Tall Free: 866.533.PATE (7283) www.pateeng.com SECTION VI — ENTIRE AGREEMENT This CONTRACT represents the entire agreement between the TOWN 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 TOWN 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 day of Y , 2007. C TOWN OF WESTL A :, TEXAS CONSULTANT v',c e prest 8en-t' -5- DALLAS - 8150 Brookriver Drive. Suite S-700 - Dallas. Texas 75247 - T: 214.357.2981 F: 214.357.2985 Toll Free: 866.533.PATE (7283) www.pateeng.com CONTRACT FOR PROFESSIONAL SERVICES THIS CONTRACT is entered into on August �-, 2007 by and between the Town of Westlake ("TOWN") and Pate Engineers. Inc. ("CONSULTANT"). The TOWN engages the CONSULTANT to perform Professional Engineering Services on the Performing Arts and Science Center at the Civic Center. SECTION I - SERVICES OF THE CONSULTANT The CONSULTANT shall perform the following professional services to TOWN 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. provide engineering services in connection with the Performing Arts and Science Center at the Civic Center. See Exhibit A, attached, for a detailed SCOPE OF WORK. B. The CONSULTANT shall submit all final construction documents in both hard copy and electronic format. Plans shall be AutoCAD compatible and all other documents shall be Microsoft Office compatible. The software version used shall be compatible to current TOWN standards. Other support documents, for example, structural calculations, drainage reports and geotechnical reports, shall be submitted in hard copy only. All Record Drawings electronic files shall be submitted to the TOWN in TIF format. ELECTRONIC MEDIA DISCLAIMER The information contained in the signed and sealed documents are the "Instruments of Service" and should be deemed to be correct and superior to any electronic information provided to "TOWN". "CONSULTANT" is furnishing this electronic information as a convenience to "TOWN" and it is a component of the instruments of service for this project. It is intended only for the "TOWN'S" benefit on the specific project and for a specific use. There is no representation of the suitability of the electronic information for other purposes or of the durability of the information or the medium in or on which the information is furnished. "TOWN" agrees to indemnify and hold harmless "CONSULTANT" for any and all claims, damages, costs or suits arising out of any action taken against "CONSULTANT" as a result of changes made to the instruments of service without the prior knowledge and approval of "CONSULTANT". Transfer of the information does not transfer any license to use the underlying software or extinguish the rights of the transferor to reuse the information in the general course of a professional practice. DALLAS • 8150 BrooMver Drive, Suite S-700 • Dallas, Texas 75247 • T: 214.357.2981 F: 214.357.2985 Toll free: 866.533.PATE (7283) www.poteeng.com C. 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 TOWN upon request, shall become subject to the Open Records Laws of this State. D. 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 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 TOWN 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 TOWN 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 TOWN and only after the TOWN has been provided with written notice of such Change in Coverage, such notice to be sent to the TOWN either by hand delivery to the TOWN Manager or by certified mail, return receipt requested, and received by the TOWN 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 TOWN 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. E. The CONSULTANT shall indemnify and hold the TOWN, its officers, agents, and employees, harmless from any claim, loss, damage, suit, and liability for which CONSULTANT is legally liable, including reasonable expenses of litigation, court costs, and attorney's fees, for injury to or death of any person, for DALLAS - 8150 Brookrver Drive, Suite S-700 - Dallas, Texas 75247 - T. 214.357.2981 F: 214.357.2985 Toll Free: 866.533.PATE (7283) www.pateengi.com 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. F. 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 TOWN.. SECTION II - PERIOD OF SERVICE This CONTRACT will be binding upon execution and end after two years from the date of execution. SECTION III - CONSULTANT'S COMPENSATION A. The method of payment for this CONTRACT is lump sum. Total compensation for the services performed shall be $36,400._-00. B. The TOWN shall pay the CONSULTANT in installments based upon detailed invoices submitted by the CONSULTANT C. The TOWN shall make payments to the CONSULTANT within thirty (30) days after receipt and approval of a detailed invoice. Invoices shall be submitted on a monthly basis. SECTION IV - THE TOWN'S RESPONSIBILITIES A. The TOWN 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 TOWN on any aspect of the work shall be directed to the project manager. B. The TOWN 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 TOWN will keep the CONSULTANT advised concerning the progress of the TOWN'S review of the work. The CONSULTANT agrees that the TOWN'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 -consultants) or in any way affect the CONSULTANT's status as an. independent contractor of the TOWN. DALLAS • 8150 Brookriver Drive. Suite S-700 • Dallas, Texas 75247 • T: 214.357.2981 F: 214.357.2985 Toll Free: 866.533.PATE (7283) www.pateeng.com SECTION V - TERMINATION A. The TOWN, 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 8150 Brookriver Drive, Suite S-700 Dallas, Texas 75247. 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 TOWN 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 TOWN on or before the 15th 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 TOWN shall make final payment within sixty (60) days after the CONSULTANT has delivered to the TOWN a detailed invoice for services rendered and the documents or work product generated by the 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 TOWN shall have the option of completing the work, or entering into a CONTRACT with another party for the completion of the work. F. If the TOWN terminates this CONTRACT for cause and/or if the CONSULTANT breaches any provision of this CONTRACT, then the TOWN 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 Tarrant 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 eQnnection with the dispute and/or action. CONSULTANT and TOWN desire an expeditious means to resolve any disputes that may arise between under this 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. DALLAS • 8150 &roodver Drive, Suit: S-700 • Dallas, Texcs 75247 - T: 214,357.2981 F: 214.357.2985 Toll Free: 866.533.PATE [7283] www.pateeng.corn SECTION VI — ENTIRE AGREEMENT This CONTRACT represents the entire agreement between the TOWN 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 TOWN 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 TOWN OF WESTLAIE, TEXAS CONSULTANT -- ice r+ day of , 2007. -5- DALLAS - 8150 Brookriver Drive, Suite S-700 - Dallas, Texas 75247 - T: 214.357,2981 F: 214.357.2485 Toll Free: 866.533.PATE (7283) www.pateeng.com