HomeMy WebLinkAboutC2017-457 - 10/10/2017 - NA CITY OF CORPUS CHRISTI
CONTRACT FOR PROFESSIONAL SERVICES
CLAIMS ANALYSIS FOR PROJECT E12097/E12098 McARDLE ROAD IMPROVEMENTS
(ENNIS JOSLIN TO WHITAKER DRIVE)
The City of Corpus Christi, a Texas home rule municipal corporation, P.O. Box 9277, Corpus Christi,
Nueces County, Texas 78469-9277 (City) acting through its duly authorized City Manager or Designee
(Director) and Spire Consulting Group, LLC, 114 West 7'h Street, Austin, Travis County, Texas 78701,
(Consultant), hereby agree as follows:
TABLE OF CONTENTS
ARTICLE NO, TITLE PAGE
ARTICLE I - SCOPE OF SERVICES 2
ARTICLE II - COMPENSATION 2
ARTICLE III -TIME AND PERIOD OF SERVICE 3
ARTICLE IV- INSURANCE REQUIREMENTS 3
ARTICLE V- INDEMNIFICATION 3
ARTICLE VI -TERMINATION OF AGREEMENT 4
ARTICLE VII - RIGHT OF REVIEW AND AUDIT 5
ARTICLE VIII - MISCELLANEOUS PROVISIONS 5
EXHIBITS
2017-457
10/10/17
Page 1 Rev.06/17
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Spire Consulting Group LLC
INDEXED
ARTICLE I— SCOPE OF SERVICES
1.1 The Consultant shall provide to Engineering Services its Scope of Services,to be incorporated herein and
attached to this Agreement as Exhibit A. The Scope of Services shall include all associated services required for
Consultant to provide such Services, pursuant to this Agreement,and any and all Services that would normally be
required by law or common due diligence in accordance with the standard of care defined in Article VIII of this
Agreement. The approved Scope of Services defines the services to be performed by Consultant under this
Agreement.
1.2 Consultant shall provide labor,equipment and transportation necessary to complete all services agreed to
hereunder in a timely manner throughout the term of the Agreement. Persons retained by Consultant to perform
work pursuant to this Agreement shall be employees or subconsultants of Consultant.
1.3 Consultant shall not begin work on any phase/task authorized under this Agreement until they are notified in
writing to proceed. If the scope of the Project changes, either Consultant or City may request a review of the
changes with an appropriate adjustment in compensation.
1.5 The Consultant agrees to complete the Scope of Services in accordance with the approved project
schedule and budget as defined in Exhibit A, including completing the work in phases defined therein.
ARTICLE II—COMPENSATION
2.1 The Compensation for a Phase 1 Claims Analysis included in this Agreement and in the Scope of Services
for this Agreement shall not exceed $45,000.
2.2 The Consultant's fee will be on a lump sum or time and materials(T&M)basis as detailed in Exhibit A and
will be full and total compensation for all services and for all expenses incurred in performing these services.
2.3 The Director of Engineering Services may request the Consultant to undertake additional services or tasks
provided that no increase in fee is required. Services or tasks requiring an increase of fee will be mutually agreed
and evidenced in writing as an amendment to this contract. Consultant shall notify the City within three(3)days of
notice if tasks requested requires an additional fee.
2.4 Each invoice will include the Consultant's estimate of the proportion of the contracted services completed at
the time of billing. For work performed on a T&M Basis, the invoice shall include documentation that shows who
worked on the Project, the number of hours that each individual worked, the applicable rates from the Rate
Schedule and any reimbursable expenses associated with the work. City will make prompt monthly payments in
response to Consultant's monthly invoices.
2.5 Principals may only bill at the agreed hourly rate for Principals (as defined in the Rate Schedule) when
acting in that capacity. Principals acting in the capacity of staff must bill at applicable staff rates.
2.6 Consultant certifies that title to all services covered by a Payment Request shall pass to City no later than
the time of payment. Consultant further certifies that, upon submittal of a Payment Request,all services for which
Payment Requests have been previously issued and payments received from City shall,to the best of Consultants
knowledge, information and belief, be free and clear of liens,claims,security interests or encumbrances in favor of
Consultant or other persons or entities making a claim by reason of having provided labor or services relating to
this Agreement. CONSULTANT SHALL INDEMNIFY AND HOLD CITY HARMLESS FROM ANY LIENS,
CLAIMS,SECURITY INTERESTS OR ENCUMBRANCES FILED BY ANYONE CLAIMING BY,THROUGH OR
UNDER THE ITEMS COVERED BY PAYMENTS MADE BY CITY TO CONSULTANT.
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2.7 The final payment due hereunder shall not be paid until all reports, data and documents have been
submitted, received, accepted and approved by City. Final billing shall indicate "Final Bill — no additional
compensation is due to Consultant."
2.8 City may withhold compensation to such extent as may be necessary,in City's opinion,to protect City from
damage or loss for which Consultant is responsible. When the reasons for withholding are removed or remedied
by Consultant, compensation of the amount withheld shall be made within 30 days. City shall not be deemed in
default by reason of withholding compensation as provided under this Agreement.
2.9 All funding obligations of the City under this Agreement are subject to the appropriation of funds in its
annual budget. The City may direct the Consultant to suspend work pending receipt and appropriation of funds.
The right to suspend work under this provision does not relieve the City of its obligation to make payments in
accordance with this Agreement for services provided up to the date of suspension.
ARTICLE III —TIME AND PERIOD OF SERVICE
3.1 This Agreement shall be effective upon the signature of the City Manager or designee(Effective Date)and
continue until all services are complete.
3.2 The Consultant agrees to begin work on those authorized Services for this contract upon receipt of the
Notice to Proceed from the Director of Engineering Services. Work will not begin on any phase or any Additional
Services until requested in writing by the Consultant and written authorization is provided by the Director of
Engineering Services.
3.3 Time is of the essence for this Agreement. Consultant shall perform and complete its obligations under this
Agreement in a prompt and continuous manner. The Consultant and City are aware that many factors may affect
the Consultants ability to complete the services to be provided under this agreement. The Consultant must notify
the City within ten business days of becoming aware of a factor that may affect the Consultants ability to complete
the services hereunder.
ARTICLE IV— INSURANCE REQUIREMENTS
4.1 Consultant must not commence work under this Agreement until all insurance required has been obtained
and such insurance has been approved by the City. Consultant must not allow any subcontractor to commence
work until all similar insurance required of any subcontractor has been obtained.
4.2 Insurance Requirements are shown in EXHIBIT B.
ARTICLE V— INDEMNIFICATION
Consultant shall fully indemnify and hold harmless the City of Corpus Christi and its officials,
officers,agents,employees,excluding the engineer or architect or that person's agent,employee
or subconsultant,over which the City exercises control("Indemnitee")from and against any and
all claims,damages,liabilities or costs, including reasonable attorney fees and court costs,to the
extent that the damage is caused by or results from an act of negligence, intentional tort,
intellectual property infringement or failure to pay a subcontractor or supplier committed by
Consultant or its agent, Consultant under contract or another entity over which Consultant
exercises control while in the exercise of rights or performance of the duties under this
agreement.This indemnification does not apply to any liability resulting from the negligent acts or
omissions of the City or its employees, to the extent of such negligence.
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Consultant shall defend Indemnitee, with counsel satisfactory to the City Attorney, from and
against any and all claims, damages, liabilities or costs, including reasonable attorney fees and
court costs, if the claim is not based wholly or partly on the negligence of, fault of or breach of
contract by Indemnitee. If a claim is based wholly or partly on the negligence of, fault of or
breach of contract by Indemnitee,the Consultant shall reimburse the City's reasonable attorney's
fees in proportion to the Consultant's liability.
Consultant must advise City in writing within 24 hours of any claim or demand against City or
Consultant known to Consultant related to or arising out of Consultant's activities under this
Agreement.
ARTICLE VI —TERMINATION OF AGREEMENT
6.1 By Consultant:
6.1.1 The City reserves the right to suspend this Agreement at the end of any phase for the convenience
of the City by issuing a written and signed Notice of Suspension. The Consultant may terminate this
Agreement for convenience in the event such suspension extends for a period beyond 120 calendar days
by delivering a Notice of Termination to the City.
6.1.2 The Consultant must follow the Termination Procedure outlined in this Agreement.
6.2 By City,
6.2.1 The City may terminate this agreement for convenience upon seven days written notice to the
Consultant at the address of record.
6.2.2 The City may terminate this agreement for cause upon ten days written notice to the Consultant. If
Consultant begins,within three days of receipt of such notice,to correct its failure and proceeds to diligently
cure such failure within the ten days, the agreement will not terminate. If the Consultant again fails to
perform under this agreement,the City may terminate the agreement for cause upon seven days written
notice to the Consultant with no additional cure period. If the City terminates for cause, the City may reject
any and all proposals submitted by Consultant for up to two years.
6.3 Termination Procedure
6.3.1 Upon receipt of a Notice of Termination and prior to the effective date of termination, unless the
notice otherwise directs or Consultant takes action to cure a failure to perform under the cure period,
Consultant shall immediately begin the phase-out and discontinuance of all services in connection with the
performance of this Agreement. Within 30 calendar days after receipt of the Notice of Termination, unless
Consultant has successfully cured a failure to perform, Consultant shall submit a statement showing in
detail the services performed under this Agreement prior to the effective date of termination. City retains
the option to grant an extension to the time period for submittal of such statement.
6.3.2 Consultant shall submit all completed and/or partially completed work under this Agreement.
6.3.3 Upon receipt of documents described in the Termination Procedure and absent any reason why City
may be compelled to withhold fees, Consultant will be compensated for its services based upon a Time&
Materials calculation or Consultant and City's estimate of the proportion of the total services actually
completed at the time of termination. There will be no compensation for anticipated profits on services not
completed.
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6.3.4 Consultant acknowledges that City is a public entity and has a duty to document the expenditure of
public funds. The failure of Consultant to comply with the submittal of the statement and documents, as
required above, shall constitute a waiver by Consultant of any and all rights or claims to payment for
services performed under this Agreement.
ARTICLE VII — RIGHT OF REVIEW AND AUDIT
7.1 Consultant grants City, or its designees, the right to audit, examine or inspect, at City's election, all of
Consultant's records relating to the performance of the Work under this Agreement, during the term of this
Agreement and retention period herein. The audit, examination or inspection may be performed by a City
designee,which may include its internal auditors or an outside representative engaged by City. Consultant agrees
to retain its records for a minimum of four (4) years following termination of the Agreement, unless there is an
ongoing dispute under this Agreement,then such retention period shall extend until final resolution of the dispute.
7,2 Consultant's records include any and all information, materials and data of every kind and character
generated as a result of and relevant to the Work under this Agreement(Consultant's Records). Examples include
billings, books. general ledger, cost ledgers, invoices, production sheets, documents, correspondence, meeting
notes, subscriptions, agreements, purchase orders, leases, contracts, commitments, arrangements, notes,daily
diaries,reports,drawings,receipts,vouchers,memoranda,time sheets,payroll records,policies, procedures,and
any and all other agreements, sources of information and matters that may,in City's and Consultant's reasonable
judgment, have any bearing on or pertain to any matters, rights, duties or obligations under or covered by any
Agreement Documents,
7.3 City agrees that it shall exercise the right to audit, examine or inspect Consultant's Records only during
Consultant's regular business hours. Consultant agrees to allow City's designee access to all of Consultant's
Records,Consultants facilities and Consultants current employees,deemed necessary by City or its designee(s),
to perform such audit, inspection or examination. Consultant also agrees to provide adequate and appropriate
work space necessary to City or its designees to conduct such audits, inspections or examinations.
ARTICLE VIII — MISCELLANEOUS PROVISIONS
8.1 Assignability. Neither party will assign, transfer or delegate any of its obligations or duties under this
Agreement contract to any other person and/or party without the prior written consent of the other party,except for
routine duties delegated to personnel of the Consultant staff. This includes subcontracts entered into for services
under this Agreement. If the Consultant is a partnership or joint venture,then in the event of the termination of the
partnership or joint venture,this contract will inure to the individual benefit of such partner or partners as the City
may designate. No part of the Consultant fee may be assigned in advance of receipt by the Consultant without
written consent of the City.
The City will not pay the fees of expert or technical assistance and consultants unless such employment,including
the rate of compensation, has been approved in writing by the City.
8.2 Ownership of Documents. Consultant agrees that upon payment, City shall exclusively own any and all
information in whatsoever form and character produced and/or maintained in accordance with,pursuant to or as a
result of this Agreement, including contract documents(plans and specifications), drawings and submittal data.
Consultant may make a copy for its files. Any reuse by the City,without specific written verification or adaptation
by Consultant, shall be a City's sole risk and without liability or legal exposure to Consultant. The City agrees that
any modification of the plans will be evidenced on the plans and be signed and sealed by a licensed professional
prior to re-use of modified plans.
8.3 Confidentiality. All communications between the parties,either oral or written,as well as any materials or
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information developed or received pursuant to this Agreement are confidential as the work product of a consulting
expert.
8.4 Standard of Care. Services provided by Consultant under this Agreement shall be performed with the
professional skill and care ordinarily provided by competent licensed professionals practicing in the same or similar
locality and under the same or similar circumstances.
8.5 Entire Agreement. This Agreement represents the entire and integrated Agreement between City and
Consultant and supersedes all prior negotiations, representations or agreements, either oral or written. This
Agreement may be amended only by written instrument signed by both the City and Consultant.
8.6 Disclosure of Interest. Consultant agrees to comply with City of Corpus Christi Ordinance No. 17112 and
complete the Disclosure of Interests form, attached as Exhibit C.
8.7 Certificate of Interested Parties. If the contract is amended such that the amended contract value exceeds
$50,000, Consultant agrees to comply with Texas Government Code section 2252.908 and complete Form 1295
Certificate of Interested Parties as part of this agreement. Form 1295 requires disclosure of"interested parties"
with respect to entities that enter contracts with cities that exceed $50,000. These interested parties include:
(1) persons with a "controlling interest" in the entity,which includes:
a. an ownership interest or participating interest in a business entity by virtue of units,percentage,shares,
stock or otherwise that exceeds 10 percent;
b. membership on the board of directors or other governing body of a business entity of which the board
or other governing body is composed of not more than 10 members; or
c. service as an officer of a business entity that has four or fewer officers, or service as one of the four
officers most highly compensated by a business entity that has more than four officers, or
(2) a person who actively participates in facilitating a contract or negotiating the terms of a contract with a
governmental entity or state agency, including a broker, intermediary,adviser or attorney for the business
entity.
Form 1295 must be electronically filed with the Texas Ethics Commission at
https;l/www.ethics.state.tx.uslwhatsnew/elf_info_form1295.htm. The form must then be printed, signed,
notarized and filed with the City. For more information, please review the Texas Ethics Commission Rules at
https://www.ethics.state.tx.us/legal/ch46.html.
8.8 Conflict of Interest. Consultant agrees, in compliance with Chapter 176 of the Texas Local Government
Code, to complete and file Form CIO with the City Secretary's Office. For more information and to determine if
you need to file a Form CIO, please review the information on the City Secretary's website at
http://www.cctexascom/government/city-secretary/co nflict-disclosu re/index.
8.9 Controlling Law. This Agreement is governed by the laws of the State of Texas without regard to its
conflicts of laws. Venue for legal proceedings lies exclusively in Nueces County,Texas. Cases must be filed and
tried in Nueces County and cannot be removed from Nueces County.
8.10 Severability. If, for any reason, any one or more Articles and/or paragraphs of this Agreement are held
invalid or unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the remaining
Articles and/or paragraphs of this Agreement but shall be confined in its effect to the specific Article, sentences,
clauses or parts of this Agreement held invalid or unenforceable, and the invalidity or unenforceability of any
Article,sentence,clause or parts of this Agreement,in any one or more instance,shall not affect or prejudice in any
way the validity of this Agreement in any other instance.
8.11 Conflict Resolution Between Documents. Consultant hereby agrees and acknowledges if anything
contained in the Consultant-prepared Exhibit A, Consultant's Scope of Services, or contained in any other
document prepared by Consultant and included herein, is in conflict with Articles 1-VIII of this Agreement(Articles),
the Articles shall take precedence and control to resolve said conflict.
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CITY OF CORPUS CHRISTI Spire Consulting Group, LLC
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Margie C. Rose Date y
City Manager Norwood Tower
114 W 781 St, Ste 1300
Austin, TX 78701
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^.ssistant City Manager
2017.09.05
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Assistant City Attorney Date
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Executive Director o Public Works
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EXHIBIT A
SCOPE OF SERVICES
Spire Consulting Group, LLC (Spire) is pleased to submit its proposal to the City of Corpus Christi
(City) to provide professional litigation support services (Services) for the McArdle Road
Improvements, Ennis Joslin to Whitaker Drive project (Project). Accordingly, Spire agrees to provide
Services for the City upon receipt of an executed agreement and notice to proceed.
Spire's services will be performed in phases. Phase 1 will generally consist of the following:
1. Project initiation
2. Review and analyze requested documents
3. Preliminary schedule delay analysis
4. Compare and analyze variance/deviations
5. Develop approach and methodology
6. Participate in a meeting with the City
The Phase 1 Claims Analysis will be performed between three and four weeks and at a fixed fee of
$45,000.
ANTHONY GONZALES
Managoo Prosipa
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Contract for Professional Services
Exhibit A
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EXHIBIT B
Insurance Requirements
General Consulting Contracts
1.1 Consultant must not commence work under this agreement until all required
insurance has been obtained and such insurance has been approved by the City.
Consultant must not allow any subcontractor to commence work until all similar insurance
required of any subcontractor has been obtained.
1.2 Consultant must furnish to the Director of Engineering Services with the signed
agreement a copy of Certificates of Insurance (COI)with applicable policy endorsements
showing the following minimum coverage by an insurance company(s) acceptable to the
City's Risk Manager. A waiver of subrogation is required on all applicable policies.
Endorsements must be provided with COI. Project name and or number must be
listed in Description Box of COI.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-written day notice of cancellation, Bodily Injury and Property Damage
required on all certificates or by Per occurrence - aggregate
applicable policy endorsements
PROFESSIONAL LIABILITY $1,000,000 Per Claim
(Errors and Omissions)
If claims made policy, retro date must be
prior to inception of agreement, have
extended reporting period provisions and
identify any limitations regarding who is
insured.
13 In the event of accidents of any kind related to this agreement, Consultant must
furnish the City with copies of all reports of any accidents within 10 days of the accident.
1.4 Consultant shall obtain and maintain in full force and effect for the duration of this
Contract, and any extension hereof, at Consultants sole expense, insurance coverage
written on an occurrence basis, by companies authorized and admitted to do business in
the State of Texas and with an A.M. Best's rating of no less than A- VII. Consultant is
required to provide City with renewal Certificates.
1.5 In the event of a change in insurance coverage, Consultant shall be required to
j
submit a copy of the replacement certificate of insurance to City at the address provided
below within 10 business days of said change. Consultant shall pay any costs resulting
from said changes. All notices under this Article shall be given to City at the following
address:
City of Corpus Christi
Attn: Engineering Services
P.O. Box 9277
Corpus Christi, TX 78469-9277
1.6 Consultant agrees that with respect to the above required insurance, all
insurance policies are to contain or be endorsed to contain the following required
provisions:
1.6.1 If the policy is cancelled, other than for nonpayment of premium, notice of
such cancellation will be provided at least 30 days in advance of the
cancellation effective date to the certificate holder.
1.6.2 If the policy is cancelled for nonpayment of premium, notice of such
cancellation will be provided within 10 days of the cancellation effective date
to the certificate holder.
1.7 Within five (5) calendar days of a suspension, cancellation or non-renewal of
coverage,Consultant shall notify City of such lapse in coverage and provide a replacement
Certificate of Insurance and applicable endorsements to City. City shall have the option to
suspend Consultants performance should there be a lapse in coverage at any time during
this contract. Failure to provide and to maintain the required insurance shall constitute a
material breach of this contract.
1.8 In addition to any other remedies the City may have upon Consultant's failure to
provide and maintain any insurance or policy endorsements to the extent and within the
time herein required, the City shall have the right to withhold any payment(s) if any, which
become due to Consultant hereunder until Consultant demonstrates compliance with the
requirements hereof.
1.9 Nothing herein contained shall be construed as limiting in any way the extent to
which Consultant may be held responsible for payments of damages to persons or property
resulting from Consultants or its subcontractor's performance of the work covered under
this agreement.
1.10 It is agreed that Consultant's insurance shall be deemed primary and non-
contributory with respect to any insurance or self-insurance carried by the City of Corpus
Christi for liability arising out of operations under this agreement.
1.11 It is understood and agreed that the insurance required is in addition to and separate
from any other obligation contained in this agreement.