HomeMy WebLinkAboutPR 20118: FREESE AND NICHOLS, INC. - CAPITAL IMPROVEMENT PLAN 4 City of
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INTEROFFICE MEMORANDUM
Date: February 16, 2018
To: The Honorable Mayor and City Council
Through: Harvey Robinson, City Manager
From: M. Jennifer Edwards, CIP Manager h)
RE: PR No. 20118: Freese and Nichols, Inc. —Capital Improvement Plan
Introduction:
The intent of this Agenda Item is to seek the City Council's approval for the City Manager to
approve an agreement between the City of Port Arthur and Freese and Nichols, Inc. to develop
a Capital Improvement Plan(CIP). It is recommended that City Council approve PR No.
20118.
Background:
The City of Port Arthur would like to develop a 20-year Capital Improvement Plan that would
include capital projects, equipment purchases, and major studies for the municipality through
the Houston-Galveston Area Council's (HGAC) Plan Source Project. HGAC has selected a
Request for Proposals for professional planning services for which Freese and Nichols, Inc.
qualifies.
Budget Impact:
Funds are available in the following Planning and Zoning account: 001-1051-517.54-00.
The budget impact will be $175,000.00. Planning and Zoning will shift start dates of a few
projects to the end of the year to accommodate release of funds for CIP.
Recommendation:
It is recommended that City Council approve the City Manager to enter into an agreement with
Freese and Nichols, Inc. for the development of a Capital Improvement Plan, as outlined
above, for fiscal year 2018.
"Remember,we are here to serve the Citizens of Port Arthur"
P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8188 X FAX 409.982.6743
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Finance Department
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INTEROFFICE MEMORANDUM
Date: 2/16/2018
To: Harvey Robinson, Interim City Manager
From: Andrew A. Vasquez, Finance Director
RE: Funding for Freese and Nichols—Development of Capital Improvement Plan
Introduction:
The use of a consultant to develop the City's Capital Improvement Plan is an unbudgeted item in fiscal year
2018 that is proposed to go before Council. If the City Manager and Council choose to move forward with the
use of a contractor,the City will have to give priority to this project and postpone start dates of existing
budgeted projects or completely defer them to the subsequent year.
Budget Impact:
The total budget should not be impacted if this project is given priority and substituted for other existing
projects. The departments that benefit from the implementation of this project are Planning, Public Works and
the Water and Sewer Fund. The preference would be to allocate the cost among the three departments.
Recommendation:
The category of this cost is Professional Services. In reviewing the budget, for professional services, across
the three departments above, there appears to be available budget in Planning Department budget. Public
Works has issued notices to proceed in the professional services area on work that may consume the majority
of the budget. The Water and Sewer Fund cannot support any additional cost and is in a cost savings mode.
It appears that the City's best option would require the Planning Department to postpone the Phase I Project
which is the updating and creating necessary land development codes and ordinances for the City of Port
Arthur(e.g. zoning ordinances, subdivision regulations, flood plain ordinance, landscaping ordinance, etc).
The Finance Department will work with the three departments to seek opportunities to transfer some of the
cost from Planning to Public Works, at a minimum, and Water and Sewer if possible.
PR No. 20118
2/13/2018MJE
Page 1 of 5
RESOLUTION
A RESOLUTION AUTHORIZING THE CITY TO ENTER INTO AN
AGREEMENT WITH FREESE AND NICHOLS, INC. OF TEXAS
THROUGH THE HOUSTON-GALVESTON AREA COUNCIL'S
(HGAC)PLAN SOURCE PROJECT FOR PROFESSIONAL SERVICES
IN THE DEVELOPMENT OF A 20 YEAR CAPITAL IMPROVEMENT
PLAN IN THE NOT-TO-EXCEED AMOUNT OF $175,000.00.
FUNDING AVAILABLE IN ACCOUNT NUMBER 001-1051-517.54-00.
WHEREAS, the Capital Improvement Plan (CIP) will provide a working blueprint for
sustaining and improving the community's infrastructure; and,
WHEREAS,the CIP will develop a framework that outlines projected improvements and
expenditures to assist the City of Port Arthur in future planning and budgeting activities; and,
WHEREAS, the CIP will develop a master plan with cost estimates that will coordinate
the projects between departments, and develop prioritization criteria to determine a procedure for
ranking and timing; and,
WHEREAS,the City of Port Arthur agrees to employ Freese and Nichols, Inc.to perform
professional services in connection with the development of the Capital Improvement Plan,
through the Houston-Galveston Area Council's (HGAC's) Plan Source Project, as delineated in
Exhibit"A"; and,
WHEREAS, HGAC has selected a Request for Proposals for professional planning
services for Local Governments of which this contract qualifies; and,
WHEREAS, the City of Port Arthur agrees to pay Freese and Nichols, Inc. in an amount
not-to-exceed $175,000.00, as delineated in Exhibit"B"; now therefore,
PR No. 20118
2/13/2018MJE
Page 2 of 5
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR:
SECTION 1. That the facts and opinions in the preamble are true and correct.
SECTION 2. That the City Manager is hereby authorized and directed to execute the
agreement for professional services of Freese and Nichols, Inc., in substantially the same form as
attached hereto as Exhibit"B," funding being available in account 001-1051-517.54-00.
SECTION 3. That a copy of this Resolution shall be spread upon the minutes of the City
Council.
READ, ADOPTED, AND APPROVED, this day of February, A.D. 2018, at a
Regular Meeting of the City Council of the City of Port Arthur, Texas by the following vote:
AYES:
Mayor:
Councilmembers:
Noes:
Derrick F. Freeman, Mayor
ATTEST:
Sherri Bellard, TRMC, City Secretary
PR No. 20118
2/13/2018MJE
Page 3 of 5
APPROVED AS TO FORM:
Valecia "Val" TiJ-71,,tv
itorney
APPROVED FOR ADMINISTRATION:
Harvey Robinson, Interim City Manager
40 1
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110.
Ronald "Ron" Burto•, Director of Development Services
APPROVED AS TO AVAILABILITY OF FUNDS:
Andrew Vasquez, Director of inance
bjihei:
Clifto r illiams, CPPB, Purchasing Manager
PR No. 20118
2/13/2018MJ E
Page 4 of 5
EXHIBIT "A"
Pamela Langford
From: Thorin, Amanda <amanda.thorin@h-gac.com>
Sent: Wednesday, January 10, 2018 1:35 PM
To: Pamela Langford
Cc: Ron Burton; Clifton Williams; Shad Comeaux
Subject: PlanSource Confirmation: Port Arthur Capital Improvement Plan
Attachments: 12212017 Project_inquiry_form_CIP_Project_COPA.PDF
Here is the official approval for the PlanSource project. Please contact me if you have any questions.
The information in this email message is official correspondence in reference to the request to utilize PlanSource for your
upcoming planning project. This email is to verify that the following information.
Does the End User have an Interlocal Agreement with H-GAC? YES
Does the Firm have a PlanSource contract with H-GAC?YES
Does the Scope of Work fall within the bounds of PlanSource? YES
Was the Firm qualified by PlanSource for the project type? YES
End User
City of Port Arthur
Firm Requested
Freese & Nichols
Project Name
Port Arthur Capital Improvements Plan
Overview of Services
Development of a 20 year Capital Improvements Plan
Type of Planning Project
Revitalization and Redevelopment
CONFIRMATION: ACCEPTED
With this confirmation you are free to continue into the contracting phase.
rel 7, T7z rr1i
Community & Environmental Planning
Houston-Galveston Area Council
***Please Note: My normal office hours are Monday-Thursday 6:30 AM to 5:30.***
3555 Timmons Lane, Suite 120
Houston, Texas 77027
Main: 713-627-3200
1
PlanSource Project Inquiry
Project Name: Capital Improvement Plan
Submitted Date: December 21, 2017
Project Background and Description
The City of Port Arthur would like to develop a 20-year Capital Improvement Plan that
would include all Capital Projects, Equipment Purchases, and major studies for the
municipality. The plan will provide a working blueprint for sustaining and improving the
community's infrastructures. It shall coordinate strategic planning, financial capacity, and
physical development.
The plan would be developed in two parts - a capital budget and a capital program.
cope
The Scope of Work should include, but not limited to:
- A complete inventory of all of the City's property and assets. At a minimum the list
shall include all buildings, equipment, utilities, roads, bridges and water and sewer
facilities, along with documentation of the need for renewal, replacement, or
expansion. Inventory list should also include the year the building/facility was built,
last date of improvement, current condition, and expansion/renovation date.
- Identify projects currently in progress and determine if additional funds are needed
to complete these projects.
- Identify the amount of funds available and previously completed projects;
- Analyze the City's ability to afford major expenditures;
- Collect information from Department's regarding project recommendations, project
justifications, project cost, operational budget, and an implementation schedule.
- Provide assistance to the Director of Finance with determining a method of
financing each project, such as, general obligation or revenue bonds, and debt
excursion.
Specific Requirements
• Proposed projects should be ranked based on need and funding availability;
• Project recommendations shall be presented to the City's Management Team based on
priority, for review and approval;
• CIP must be presented to the Port Arthur City Council for review and adoption. A public
hearing will be required prior to City Council approval.
Affected Organizations
• City of Port Arthur (Local Government Municipality)
• Drainage District #7 (DD #7)
• Port Arthur Economic Development Corporation (PAEDC)
• Port of Port Arthur (Port Authority)
'IMF- Timeline/Schedule
Time of Completion should between 18 - 24 months following contract execution.
End User Contacts
We approve the project component as described above, and authorize the team to proceed.
Name Title Date
(type or sign name)
Harvey Robinson Interim City Manager 12/21/2017
Interim Assistant City
Ronald Burton Manager/Director of Development 12/21/2017
Services
Armando Gutierrez Director of Public Works 12/21 /2017
Donnie Stanton Assistant Director of Utility 12/21 /2017
Operations
Jennifer Edwards C.I.P. Manager 12/21/2017
Latrice Gallow Utility Operations Compliance 12/21/2017
Engineer Manager
Clifton Williams Purchasing Manager 12/21/2017
Pamela Langford Administrative Aide 12/21/2017
Type of Planning Services Requested
Planning
Comprehensive Planning
Land Use Planning
Historic Preservation
Housing Planning
Livable Centers
Public Spaces & Streetscapes
Transit-Oriented Design
Parks & Trails Planning
Strategic Planning
Sustainable Development Planning
Transportation Planning
Access Management
Corridor Planning
Freight and Goods Movement
Mobility Planning
Parking Management
Pedestrian & Bicyclist Planning
Transit Planning
Implementation & Regulation
Financing Strategies & Economic Development Tools
Growth management & Impact Fees
Public & Private Partnerships
Special District Financing & Creation
Land Development & Regulations
Annexation
Overlay District Ordinances
Zoning Code & Development Regulations
Site Planning
Urban Design
Studies & Additional Services
Design Visualization
Feasibility Studies
Public Involvement
Charrettes
Community Outreach Tools
Visual Preference Surveys
Workshops. meeting Facilitation and Consensus
Building
Special Area Studies
Environmental Justice
X Revitalization & Redevelopment
Visioning
Prepared By:
Remit (2) Copies
(1) Copy to chosen firm for follow up
(1) Copy to PlanSource via email:
amanda.thorin@h-gac.com
Subject: PlanSource
PR No. 20118
2/13/2018MJE
Page 5 of 5
EXHIBIT "B "
Rev. I2/I7
AGREEMENT FOR PROFESSIONAL SERVICES
STATE OF TEXAS §
COUNTY OF JEM-ERSON §
This Agreement is entered into by the City of Port Arthur, Texas, hereinafter called "Owner" and Freese and
Nichols,Inc., hereinafter called "FNI." In consideration of the Agreements herein, the parties agree as follows:
I. EMPLOYMENT OF FNI: In accordance with the terms of this Agreement: Owner agrees to employ
FNI; FNI agrees to perform professional services in connection with the Project; Owner agrees to pay to
FNI compensation. The Project is described as follows: Development of Capital Improvement Plan and
Implementation Program.
II. SCOPE OF SERVICES: FNI shall provide professional services in connection with Project as set forth
in Attachment SC-Scope of Services and Responsibilities of Owner which is attached to and made a part
of this Agreement.
III. COMPENSATION: Owner agrees to pay FNI for all professional services rendered under this
Agreement in accordance with Attachment CO-Compensation which is attached hereto and made a part
of this Agreement. FNI shall perform professional services as outlined in the "Scope of Services" for a
lump sum fee of$175,000. Details concerning the fee are included in Attachment CO.
If FNI's services are delayed or suspended by Owner, or if FNI's services are extended for more than 60
days through no fault of FNI, FNI shall be entitled to equitable adjustment of rates and amounts of
compensation to reflect reasonable costs incurred by FNI in connection with such delay or suspension and
reactivation and the fact that the time for performance under this Agreement has been revised.
IV. TERMS AND CONDITIONS OF Agreement: The Terms and Conditions of Agreement as set forth as
Attachment TC shall govern the relationship between the Owner and FNI.
Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other
than Owner and FNI,and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole
and exclusive benefit of Owner and FNI and not for the benefit of any other party.
This Agreement constitutes the entire Agreement between Owner and FNI and supersedes all prior written or oral
understandings.
This contract is executed in two counterparts.
IN TESTIMONY HEREOF, they have executed this Agreement, the day of ,2018.
ATTEST: City of Port Arthur,Texas
(OWNER)
By:
Print Name and Title
ATTEST: Freese and Nichols,Inc.
/- / (FM)
_._ -- Zde.�i By:
Mehran(Ron) Bavarian,P.E.,
Print Name and Title
L:1Resources\OLCR\P\Port Arthur\CIP Program Development\Agreement
ATTACHMENT SC
SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER
ARTICLE I
BASIC SERVICES: FNI shall provide the following professional services in connection with the
development of the Project:
Phase 1: Development of Capital Improvement Plan and Implementation Program
FM will develop a Capital Improvement Plan (CIP) framework that outlines the projected capital
improvements and expenditures to assist in future City planning and budgeting activities. As part of this phase
of the project, FNI will review available planning documents and conduct workshops with City Staff to
determine which capital projects should be included in the Capital Improvement Plan. FNI will develop
updated cost estimates and prioritize and coordinate the projects between departments. The primary
deliverable from this phase is a Capital Improvement Plan document that can be updated and presented during
the annual budgeting process.
A. Conduct Kickoff Meeting on CIP Development: FNI will conduct a kick-off meeting with the City's
internal stakeholders to discuss project goals, scope, schedule, and milestones, along with a
presentation on CIP fundamentals. FNI will submit a data request memorandum outlining the data
needs and schedule for the project.FNI will prepare and provide meeting minutes.
B. Data Review and Inventory: FNI will prepare an inventory of the City's property and assets using
information to be provided by the City. The inventory could include buildings, equipment, utilities,
roads, bridges, and water and sewer facilities, along with documentation of the need for renewal,
replacement,or expansion.Also, if known,the inventory could include the year the facility was built,
last date of improvement, the current condition and the date needed for the expansion and/or
renovation.
C. Conduct CIP Project Data Gathering Meetings: FNI will meet with City Staff on water, sewer,
drainage,streets,parks and facility master plans to determine identified projects and the timing of such
projects. Up to a total of five(5)meetings with staff are estimated for this task.
a. Verify cost and scope information developed by consultants where available;
b. Review current master plans for conflicts in timing or needs;
c. Identify the projects that are currently in progress
d. Determine if additional funds are needed to complete projects in progress
e. Assemble a GIS database for the CIP Projects
D. Determine CIP Project Prioritization Criteria: FNI will conduct a meeting with the City Management
Team to review proposed prioritization criteria to determine procedure for ranking of projects and
establishing ClP project listings.
E. Coordinate CI' Projects for each Department: FNI will review all submitted projects to coordinate
need and efficiencies between each department and provide the City a consolidated list.
a. Combine projects that may be geographically adjacent;
b. Combine projects to coordinate aboveground and underground improvements;
c. Combine projects to achieve an economy of scale;
d. Submit to City Staff for review and comment.
L:1Resources\OLCRW1Pon Arthur\CIP Program DevelopmenMWgreement
SC-I OWNER
F. CIP Cost Estimates: FNI will develop planning cost estimates for submitted projects.
a. Cost estimates based on general cost databases and information;
b. Identify non-construction project costs(engineering, surveying, testing,etc.);
c. Prepare one-page summaries of projects.
G. Coordination with Finance Department: FNI will interview the City management team and the finance
department to analyze the City's ability to afford major expenditures. This includes coordinating with
the City's ongoing water and sewer rate study. FNI will coordinate with the City Finance Department
to verify compatibility with financial project accounting system. FNI will format cost estimates and
projects as needed to facilitate ties to the City's system.
H. Prioritize CIP Project List: FNI will review funding limitations and rank projects based on merit and
criteria determined in Task D. Based on feedback from City, FNI will develop a 5-year CIP broken
down by fiscal year. The remaining projects will be put into one category for post 5-year CIP
consideration.
I. Present Draft 5-year CIP to City Staff: Present recommended CIP implementation to the City Staff
and Management Team for their review and approval.
J. Present Draft 5-year CIP to City Council: Conduct one (1) workshop and then one (1) meeting for
adoption.
K. Prepare Capital Improvement Plan Document: FNI will prepare and submit fifteen (15) hard copies
and one (1) electronic copy in PDF format of the draft CIP document, including methodologies,
ranking system and project prioritization listing. FNI will revise the CIP based on City's comments
and submit fifteen (15)final hard copies and an electronic copy in PDF format to the City.
Task B: On-Call Services
B l. As Needed Services: For services not defined above, FNI will negotiate a scope and fee to add an
additional task to the project.
ARTICLE II
ADDITIONAL SERVICES: Additional Services to be performed by FNI, if authorized by Owner, which
are not included in the above described basic services,are described as follows:
A. Field surveying required for the preparation of designs and drawings.
B. Field layouts or the furnishing of construction line and grade surveys.
C. Software Licenses
D. Making property, boundary and right-of-way surveys, preparation of easement and deed descriptions,
including title search and examination of deed records.
E. Providing services to investigate existing conditions or facilities, or to make measured drawings
thereof, or to verify the accuracy of drawings or other information furnished by Owner.
L:\Resources\OLCR\P\Port Arthur\C IP Program Development\Agreement FNI it
SC-2 OWNER
F. Providing renderings, model, and mock-ups requested by the Owner.
G. Making revisions to drawings, specifications or other documents when such revisions are 1) not
consistent with approvals or instructions previously given by Owner or 2) due to other causes not
solely within the control of FNI.
H. Preparing applications and supporting documents for government grants, loans, or planning advances
and providing data for detailed applications.
I. Performing investigations, studies and analyses of substitutions of equipment and/or materials or
deviations from the drawings and specifications.
J. Providing environmental support services including the design and implementation of ecological
baseline studies, environmental monitoring, impact assessment and analyses, permitting assistance,
and other assistance required to address environmental issues.
K. Visits to the site in excess of the number of trips included in Article I for periodic site visits,
coordination meetings,or contract completion activities.
L. Providing services made necessary because of unforeseen, concealed, or differing site conditions or
due to the presence of hazardous substances in any form.
M. Provide Geotechnical investigations, studies and reports.
ARTICLE HI
TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this
Agreement and agrees to complete services in accordance with the following schedule:
Project Schedule Milestones:
1. Draft CIP Presentation to City Staff and Management Team(100 Days after NTP)
2. CIP Presentation to City Council (150 Days after NTP)
3. Capital Improvement Plan Document(180 Days after NTP)
If FNI's services are delayed through no fault of FNI, FNI shall be entitled to adjust contract schedule
consistent with the number of days of delay. These delays may include but are not limited to delays in Owner
or regulatory reviews, delays on the flow of information to be provided to FNI, governmental approvals, etc.
These delays may result in an adjustment to compensation as outlined on the face of this Agreement and in
Attachment CO.
ARTICLE IV
RESPONSIBILITIES OF OWNER: Owner shall perform the following in a timely manner so as not to
delay the services of FNI:
A. Designate in writing a person to act as Owner's representative with respect to the services to be
rendered under this Agreement. Such person shall have contract authority to transmit instructions,
receive information,interpret and define Owner's policies and decisions with respect to FNI's services
for the Project.
L:\Resources\OLCR\P\Port Arthur\C[P Program Development\Agreement
SC-3 OWNER
B. Provide all criteria and full information as to Owner's requirements for the Project, including design
objectives and constraints, space, capacity and performance requirements, flexibility and
expandability, and any budgetary limitations; and furnish copies of all design and construction
standards which Owner will require to be included in the drawings and specifications.
C. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including
previous reports and any other data relative to design or construction of the Project.
D. Arrange for access to and make all provisions for FNI to enter upon public and private property as
required for FM to perform services under this Agreement.
E. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents
presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as Owner
deems appropriate for such examination and render in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of FNI.
F. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project
and such approvals and consents from others as may be necessary for completion of the Project.
G. Furnish,or direct FNI to provide,Additional Services as stipulated in Attachment SC,Article II of this
Agreement or other services as required.
H. Bear all costs incident to compliance with the requirements of this Article IV.
ARTICLE V
DESIGNATED REPRESENTATIVES: FNI and Owner designate the following representatives:
Owner's Designated Representative— , P. O. Box 1089, Port Arthur,Texas 77641:
Phone: Fax: email:
Owner's Accounting Representative—
FNI's Designated Representative— Richard Weatherly, P.E. 11200 Broadway St., Suite 2320,Pearland,
Texas 77584; Phone: 832-456-4700; Fax: 832-456-4701;email raw@freese.com
FNI's Accounting Representative—Jana Collier,4055 International Plaza,Ste. 200,Fort Worth,Texas
76109; Phone: 817-735-7354; Fax: 817-735-7496;email jvc@freese.com
L:1Resources\OLCR1P\Port Arthur\CtP Program Development'Agreement FNI_-0
SC-4 OWNER
ATTACHMENT CO
COMPENSATION
Compensation to FNI shall be the lump sum fee of One Hundred Seventy-Five Thousand Dollars($175,000.00). If FNI sees the
Scope of Services changing so that additional services are needed, including but not limited to those services described as
Additional Services in Attachment SC, FNI will notify OWNER for OWNERS approval before proceeding. Additional Services
shall be computed based on the Schedule of Charges.
Schedule of Charges:
Position Min Max
Professional 1 78 123
Professional 2 101 148
Professional 3 128 205
Professional 4 139 242
Professional 5 193 301
Professional 6 203 369
Construction Manager 1 81 162
Construction Manager 2 111 167
Construction Manager 3 158 189
Construction Manager 4 170 255
CAD Technician/Designer 1 62 119
CAD Technician/Designer 2 96 140
CAD Technician/Designer 3 114 185
Corporate Project Support 1 45 108
Corporate Project Support 2 65 152
Corporate Project Support 3 88 239
Intern/Coop 42 72
Rates for In-House Services
Technology Charge Bulk Printing and Reproduction
$8.50 per hour B&W Color
Small Format(per copy) $0.10 $0.25
Travel Large Format(per sq.ft.)
Standard IRS Rates Bond $0.25 $0.75
Glossy/Mylar $0.75 $1.25
Vinyl/Adhesive $1.50 $2.00
Mounting(per sq.ft.) $2.00
Binding(per binding) $0.25
OTHER DIRECT EXPENSES:
Other direct expenses are reimbursed at actual cost times a multiplier of 1.10. They include outside printing and reproduction
expense, communication expense, travel, transportation and subsistence away from the FNI office and other miscellaneous
expenses directly related to the work, including costs of laboratory analysis, test, and other work required to be done by
independent persons other than staff members. For Resident Representative services performed by non-FNI employees and
CAD services performed In-house by non-FNI employees where FNI provides workspace and equipment to perform such
services, these services will be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI
employee was performing the same or similar services.
These ranges and rates will be adjusted annually in February. Last updated February 2018.
345322010
L:\Resources\OLCR\P\Port Arthur\C1P Program Development\Agreement FNI--f!
CO-i OWNER
12-01-16 ATTACHMENT TC
TERMS AND CONDITIONS OF AGREEMENT
1. DEFINITIONS: The term Owner as used herein refers to the City of Port Arthur,Texas . The term
FNI as used herein refers to Freese and Nichols,Inc.,its employees and agents;also its subcontractors and their employees
and agents. As used herein,Services refers to the professional services performed by Freese and Nichols pursuant to the
Agreement.
2. CHANGES: Owner, 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 under
this clause causes an increase or decrease in FNI'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 the Agreement modified in
writing accordingly.
3. TERMINATION: The obligation to provide services under this Agreement may be terminated by either party upon ten
days' written notice. In the event of termination,FNI will be paid for all services rendered and reimbursable expenses
incurred to the date of termination and,in addition,all reimbursable expenses directly attributable to termination.
4. CONSEQUENTIAL DAMAGES: In no event shall FNI or its subcontractors be liable in contract,tort,strict liability,
warranty,or otherwise for any special,indirect,incidental or consequential damages,such as loss of product,loss of use of
the equipment or system,loss of anticipated profits or revenue,non-operation or increased expense of operation or other
equipment or systems.
5. INFORMATION FURNISHED BY OWNER: Owner will assist FNI by placing at FNI's disposal all available information
pertinent to the Project including previous reports and any other data relative to design or construction of the Project. FNI
shall have no liability for defects or negligence in the Services attributable to FNI's reliance upon or use of data, design
criteria, drawings, specifications or other information furnished by Owner and Owner agrees to indemnify and hold FNI
harmless from any and all claims and judgments,and all losses,costs and expenses arising therefrom. FNI shall disclose to
Owner,prior to use thereof,defects or omissions in the data,design criteria,drawings,specifications or other information
furnished by Owner to FNI that FNI may reasonably discover in its review and inspection thereof.
6. INSURANCE: FNI shall provide to Owner certificates of insurance which shall contain the following minimum coverage:
Commercial General Liability Workers' Compensation
General Aggregate $2,000,000 Each Accident $1,000,000
Automobile Liability(Any Auto) Professional Liability
CSL $1,000,000 $3,000,000 Annual Aggregate
7. SUBCONTRACTS: If,for any reason,at any time during the progress of providing Services,Owner determines that any
subcontractor for FM is incompetent or undesirable,Owner will notify FNI accordingly and FNI shall take immediate steps
for cancellation of such subcontract. Subletting by subcontractors shall be subject to the same regulations. Nothing
contained in the Agreement shall create any contractual relation between any subcontractor and Owner.
8. OWNERSHIP OF DOCUMENTS: All drawings,reports data and other project information developed in the execution of
the Services provided under this Agreement shall be the property of the Owner upon payment of FM's fees for services. FNI
may retain copies for record purposes. Owner agrees such documents are not intended or represented to be suitable for reuse
by Owner or others. Any reuse by Owner or by those who obtained said documents from Owner without written verification
or adaptation by FNI will be at Owner's sole risk and without liability or legal exposure to FM, or to FNT's independent
associates or consultants,and Owner shall indemnify and hold harmless FNI and FNI's independent associates and consultants
from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any such
verification or adaptation will entitle FNI to further reasonable compensation. FNI may reuse all drawings,report data and
other project information in the execution of the Services provided under this Agreement in FNI's other activities. Any reuse
by FM will be at FM's sole risk and without liability or legal exposure to Owner,and FM shall indemnify and hold harmless
Owner from all claims,damages,losses and expenses including attorneys'fees arising out of or resulting therefrom.
Page I of 2
FM —07/3
OWNER
9. POLLUTANTS AND HAZARDOUS WASTES: It is understood and agreed that FNI has neither created nor contributed
to the creation or existence of any hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous substance or
condition at the site,if any,and its compensation hereunder is in no way commensurate with the potential risk of injury or
loss that may be caused by exposures to such substances or conditions. The parties agree that in performing the Services
required by this Agreement,FNI does not take possession or control of the subject site,but acts as an invitee in performing
the services,and is not therefore responsible for the existence of any pollutant present on or migrating from the site. Further,
FNI shall have no responsibility for any pollutant during clean-up,transportation,storage or disposal activities.
10. OPINION OF PROBABLE COSTS: FM will furnish an opinion of probable project development cost based on present
day cost,but does not guarantee the accuracy of such estimates. Opinions of probable cost,financial evaluations,feasibility
studies,economic analyses of alternate solutions and utilitarian considerations of operations and maintenance costs prepared
by FNI hereunder will be made on the basis of FNI's experience and qualifications and represent FNI's judgment as an
experienced and qualified design professional. It is recognized,however,that FNI does not have control over the cost of
labor,material,equipment or services furnished by others or over market conditions or contractors'methods of determining
their prices.
11. CONSTRUCTION REPRESENTATION: If required by the Agreement,FNI will furnish Construction Representation
according to the defined scope for these services. FNI will observe the progress and the quality of work to determine in
general if the work is proceeding in accordance with the Contract Documents. In performing these services, FM will
endeavor to protect Owner against defects and deficiencies in the work of Contractors; FNI will report any observed
deficiencies to Owner, however, it is understood that FM does not guarantee the Contractor's performance, nor is FM
responsible for the supervision of the Contractor's operation and employees. FNI shall not be responsible for the means,
methods, techniques, sequences or procedures of construction selected by the Contractor, or the safety precautions and
programs incident to the work of the Contractor. FNI shall not be responsible for the acts or omissions of any person(except
his own employees or agent)at the Project site or otherwise performing any of the work of the Project. If Owner designates a
person to serve in the capacity of Resident Project Representative who is not a FM's employee or FM's agent,the duties,
responsibilities and limitations of authority of such Resident Project Representative(s)will be set forth in writing and made a
part of this Agreement before the Construction Phase of the Project begins.
12. PAYMENT: Progress payments may be requested by FM based on the amount of services completed. Payment for the
services of FM shall be due and payable upon submission of a statement for services to Owner and in acceptance of the
services as satisfactory by the Owner. Statements for services shall not be submitted more frequently than monthly. Any
applicable new taxes imposed upon services,expenses,and charges by any governmental body after the execution of this
Agreement will be added to FNI's compensation.
If Owner fails to make any payment due FNI for services and expenses within thirty(30)days after receipt of FNI's statement
for services therefore,the amounts due FM will be increased at the rate of one percent(1%)per month from said thirtieth
(30th)day, and, in addition, FM may, after giving seven (7) days'written notice to Owner, suspend services under this
Agreement until FM has been paid in full,all amounts due for services,expenses and charges.
13. ARBITRATION: No arbitration arising out of,or relating to,this Agreement involving one party to this Agreement may
include the other party to this Agreement without their approval.
14. SUCCESSORS AND ASSIGNMENTS: Owner and FM each are hereby bound and the partners,successors,executors,
administrators and legal representatives of Owner and FNI are hereby bound to the other party to this Agreement and to the
partners,successors,executors,administrators and legal representatives(and said assigns)of such other party,in respect of all
covenants,agreements and obligations of this Agreement.
Neither Owner nor FM shall assign, sublet or transfer any rights under or interest in (including, but without limitation,
moneys that may become due or moneys that are due)this Agreement without the written consent of the other,except to the
extent that any assignment,subletting or transfer is mandated by law or the effect of this limitation may be restricted by law.
Unless specifically stated to the contrary in any written consent to an assignment,no assignment will release or discharge the
assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent FNI from
employing such independent associates and consultants as FM may deem appropriate to assist in the performance of services
hereunder.
15. PURCHASE ORDERS: If a Purchase Order is used to authorize FM's Services,only the terms,conditions/instructions
typed on the face of the Purchase Order shall apply to this Agreement. Should there be any conflict between the Purchase
Order and the terms of this Agreement,then this Agreement shall prevail and shall be determinative of the conflict.
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FNI
OWNER