Loading...
11 - Addendum to Professional Services Agreement with Hayter EngineeringItem No. 11 TO: Mayor, Mayor Pro -Tem & City Council FROM: Grayson Path, City Manager SUBJECT: Addendum to Professional Services Agreement with Hayter Engineering, Inc. DATE: May 23, 2022 BACKGROUND: Since October, 2020, the city has contracted with Hayter Engineering ("Hayter") for professional engineering services. Chris Donnan, of Hayter, has been providing almost all of the professional engineering services which would have been provided by a staff city engineer. To date, Mr. Donnan's services have been exemplary. The existing agreement between the city and Hayter provides that it may be terminated by either party with thirty days' notice. Mr. Donnan has made us aware that his need to devote so much time to his work with the city has made it difficult to plan out other work, a situation that is exacerbated by the short termination notice provision. Hayter has asked for a six month termination provision so that once the city has hired a full-time engineer, Hayter has enough time to accept and plan for future work. Hayter has also asked that the city pay a monthly retainer of $6,000.00 against which it will bill Mr. Dorman's work. Hayter's monthly billings have been in excess of $6,000.00 to date. Staff believes that both of these requests are both customary and reasonable. STATUS OF ISSUE: Attached is an Addendum to the professional services agreement which provides for 180 days' notice of termination by either party, or earlier should both parties agree in writing. The Addendum also provides for a $6,000.00 month retainer. Mr. Donnan's services will be billed against that retainer, and in the event that he doesn't bill for at least that amount in any given month, what remains of the retainer after billing will roll over into the next month. The city will never pay for services not rendered. BUDGET: Approval of the Addendum will not impact the budget. The city will pay for engineering services just as it did under the original agreement. RECOMMENDATION: Approve a resolution approving an Addendum to the Hayter Engineering, Inc. professional services agreement. RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS APPROVING A CONTRACT ADDENDUM WITH HAYTER ENGINEERING, INC. ("HAYTER") FOR SERVICES PROVIDED AS ACTING CITY ENGINEER; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT ADDENDUM; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the parties wish to amend said contract to provide for a 180 day termination clause and to provide for payment of a monthly retainer; and WHEREAS, the City Council finds that the Addendum to Professional Services Agreement attached hereto as Exhibit A and incorporated herein by reference is in the best interest of the city and its residents; and WHEREAS, the City Council hereby authorizes the City Manager to execute the Contract Addendum; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, THAT: Section 1. The findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That the Contract Addendum to Professional Service Agreement is hereby approved as set forth herein as Exhibit A. Section 3. That the City Manager is hereby authorized to execute the Contract Addendum. Section 4. This resolution shall be effective immediately upon passage. DULY PASSED AND APPROVED this 23rd day of May, 2022. Paula Portugal, Mayor ATTEST: Janice Ellis, City Clerk APPROVED AS TO FORM: Stephanie H. Harris, City Attorney • - •inc. k naf " • - • - • - •,• -- Exhibit- •heretoandincorporated by l; herein) dated October 20, 2020 whereby Hayter provides the City with municipal engineering services on an as needed basis. A. Terms and Conditions Section 2, "Termination," shall be amended to read as # • 2. Termination: This Agreement may be terminated by either party upon one hundred eighty (180) days written notice, or upon shorter notice by written agreement of the parties. B. Terms and Conditions shall be amended • include a new •' ATTEST Janice Ellis City Clerk APPROVED AS TO FORM: Stephanie H. Harris City Attorney CITY OF PARIS Grayson Path, City Manager Date Signed: HAYTER ENGINEERING, INC. In .o Michael J. 06nnan, P.E./President r� �, 1 Date Signed: "� ", ��� THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Grayson Path, City Manager of the CITY OF PARIS, a Texas municipal corporation, known to me to be the person who's name is subscribed to the foregoing instrument, and acknowledged to me that he has executed the same on the City's behalf. GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE DAY OF .2022. Notary Public Lamar County, Texas My commission expires THE STATE OF TEXAS § COUNTY OF LAMAR § This instrument was acknowledged before me on this day, by Michael J. Donnan, P.E., President of Hayter Engineering, Inc., a Texas corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he executed the same on behalf of Hayter Engineering, Inc. GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE DAY OF 0`1 ( 20 i.. r Notary Public Lamar County, Texas My commission expires I i - /"k 0`01 ''�. STEPHANIE CALDWELL Notary Public, State of Texas : 'r Comm. Expires 11+142023 Notary IO 180111797 PROFESSIONAL SERVICES AGREEMENT Date: October 20, 2020 Client: City of Paris B- Ji6ox 0-037 Paris,TX 75461 .... ...... . ...... . ..... Telephone: 903.784.9202 Email: gpaffi@paristexas.gov Project Name/Location: Ci!y,of Paris_—Municiq; alEnpineerinp Services Scope/Intent and Extent of Services: Provide Munich al Engjqeqripg Srvi ,as requested, in writer- ....Services shall be 9 _s_sh 11 he 9 an as needed basis for a-L)priod of time to be ermined by the UN-, Fee Arrangement: * Hourly _ * Lump Sum: Retainer Amount: NIA C Hourly, Not To Exceed$ E) Other Information To Be Provided By Client: As available for each assivnment. .......... Special Terms, Deadlines, Comments, Etc.: I I N/A Offered By: HAYTER ENGINEERING, INC. ENGINEER Signature u,, Date Michael J. Donnan, P.EJPresident Printed Name/Tule Accepted By: CITY OF PARIS CLIENT Signature Date Gray son Path/Citv Mam= Printed Name�7'itle The Terms and Conditions on the following page ofthis form are a part of this Agreement Terms and Conditions I. Information,Su jjjlj�qd 111-- —.1.1111111 1 __%J)MpF4: The ENGINEER shall be entitled to rely upon and use all such information and services provided by CLIENT oothers i ti r designated by CLIENT in performing the ENGINEER'S services under this Agreement, without further verification by the ENGINEER. CLIENT shall ensure access for the ENGINEER to properties as necessary for performance of the ENGINEER'S work; provide legal counsel, accountants, insurance consultants, financial advisors or other similar specialists as required for the project, and provide all criteria and full information as to CLIENTS requirements for the project. 2. Igminati :This Agreement may be terminated by either party upon ten (10) days written notice. 3. Payment: ENGINEER may bill for services tendered monthly. All invoices are payabic by CLIENT within 30 days. Hourly rateinvoices shall include reimbursable expenses and labor charges. ENGINEER'S subconsultants shall be billed at ENGINEER'S cost plus a service charge equal to 5% of the subconsultants invoice amount. 4. Reuse of Documents: All documents prepared by the ENGINEER are for this project only - they are not intended to be suitable for reuse on extensions of the Project. or on any other project. Any reuse without written verification Or adaptation by the ENGINEER for the specific purpose intended will be at CLIENT'S sole risk and without liability to the ENGINEER. 5. Notices: Any notices to be given by either party to the other may be affected by personal delivery in writing or by registered or certified mail. 6, Entire Avreemcint: This instrument contains the sole and entire agreement between the parties relating to the right herein granted and the obligation herein assumed. 7. Texas Law to Apply: This Agreement shall be construed under and in accordance with the laws of the State of Texas and will be performable in Lamar County. 8. Legal Construction: If any one or more of the provisions contained in this Agreement shall for any reasons be held to be invalid, illegal or unenforceable in any respect. such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 9. Warran1y: The ENGINEER intends to render its services under this Agreement in accordance with generally accepted professional practices for the intended use of the project and makes no warranty, either expressed or implied. Specifically, in this regard, the ENGINEER will endeavor to advise the CLIENT as construction, if any, progresses, but does not in any manner guarantee the performance of the construction contractors, nor is the ENGINEER liable in any manner for constmetion site safety or the means or methods employed by construction contractors in carrying out the work. 10. Indemnification: The CLIENT shall. to the fullest extent permitted by law, indemnify and hold harmless the ENGMEER, its officers.. directors, Indemnification: . ...... ... ........ employees, agents and subconsultants from and against all damage, liability and cost, including reasonable attorney's fees and defense costs. arising out of or in any way connected with the performance by any of the parties above named of the services under this Agreement, excepting only those damages, liabilities or costs attributable to the sale negligence or willful misconduct of the ENGINEER. 11. Opinion of Probable Construction Cost. Any opinion of the probable construction or project cost prepared by the ENGINEER represents the .judgement of a design professional and is supplied for the general guidance of the CLIENT. Since the ENGINEER has no control over the cost of labor and material, or over competitive bidding or over market conditions, the ENGINEER does not imply nor guarantee the accuracy of such opinions as compared to contractor bids or actual project costs to the CLIENT. 12. Limitation of Liabilln�: In recognition of the relative risks, rewards and benefits of the project to both CLIENT and the ENGINEER, the 11T96 have been —allocated such that the CLIENT agrees that, to the fullest extent permitted by law, the ENGINEER'S total liability to the CLIENT for any and all injuries, claims, losses, expenses, damages or claim expenses arising out of this Agreement from any cause or causes, shall not exceed 5100,000.00. Such causes include, but are not limited to, the ENGINEER'S negligence, errors, omissions, strict liability, breach of contract or breach of warranty. 13. Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for sets or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment foracts or failures to art occurring after Substantial Completion. In no event shall such statues of limitations commence to nin any later than the date when the ENGINEER'S services are substantially completed. 14. Notwithstanding any other provision of this Agreement. and to the fullest extent permitted by law, neither the OWNER nor the Consultant, their respective officers. directors, partners, employces. contractors or subconsultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to the Project or to this Agreement. This mutual waiver of consequential damages shall include, but is not limited to. loss of use, loss of profit, loss of business, loss of income, loss or reputation or any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of strict or implied warranty. Both the OWNER and Consultant shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others Involved in this project. 15. Reference Comin tinicatio1gs: The Consultant may be required to render opinions about the performance or qualifications of others engaged or being considered for engagement by the Client. Those about whom opinions are rendered may, consequently, initiate claims against the Consultant. To help create an atmosphere in which the Consultant may freely report or express such opinions candidly in the interest of the Client, the Client agrees to Indemnify and hold harmless the Consultant against all damages. liabilities or costs, including reasonable attorneys' fees arising from the rendering of such confidential opinions and reports by the Consultant to the Client. 16. The OWNER shall provide prompt written notice to the ENGINEER if the OWNER becomes aware of any fault or defect in the Project, including any errors: omissions or inconsistencies in the ENGINEER'S Instruments of Service. 17. In an effort to resolve any conflicts that arise during the design and construction of the Project or following the completion of the Project, the Client and the Consultant agree that a] I disputes between them arising out of or relating to this Agreement or the Project shall be submitted to nonbinding mediation. EXHIBIT A Schedule of Per Diem Rates January 17, 2022 Personnel Hourly Rates Principal 190.00 Project Manager 160.00 Project Engineer 140.00 Design Engineer II 130.00 Design Engineer 1 115.00 Senior CAD/Survey Technician 100.00 CAD Technician II 75.00 CAD Technician I 65.00 Senior Administrative Assistant 90.00 Administrative Assistant 75.00 On -Site Observer 90.00 Surveyor 150.00 Survey Technician II 65.00 Survey Technician I 50.00 Survey Crew - 2 Man Party 115.00 Survey Crew - 3 Man Party 190.00 Survey Crew —1 Man GPS 105.00 The schedule of per diem rates may be changed by the ENGINEER at his sole discretion. Time billed for per diem rate services shall be in minimum increments of `/d hour.