ORDER NO. 31095
DESIGNATE AI,TF.RNATE INDIVIDUAL(S) TO APPROVE FLOOD PLAIN
PERMITS OR OTHER FLOOD PLAIN AUTHORIZATIONS IN THE ABSENCE OR
OTHER UNAVAILABILITY OF THE REGULARLY DESIGNATED COUNTY
FLOOD PLAIN ADMINISTRATOR
Came to be heard this the 10th day of November, 2008, with a motion made by
Commissioner Letz, seconded by Commissioner Oehler, the Court unanimously
approved by a vote of 4-0-0 to:
Authorize Road & Bridge Department to contract with John Hewitt, Hewitt Engineering,
for flood plain permit certification work, and authorize the use of John Hewitt's services
at the rate of $110.00 per hour, with the work to begin effective immediately after a
Contract is signed, and with the direction to the County Attorney, as soonas possible, to
approve the Contract for the Judge's execution for that purpose.
i~~~
310 ~- 5
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS
REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT
MADE BY: Judge Tinley
MEETING DATE: November 10, 2008
OFFICE: County Judge
TIME PREFERRED: 10:15 AM
SUBJECT: Consider, discuss, and take appropriate action to enter into Interlocal
Agreement with the City of Kerrville and/or designate alternate individual(s) to approve
Flood Plain permits or other Flood Plain authorizations in the absence or other
unavailability of the regularly designated County Flood Plain Administrator.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT: Judge Tinley
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays:
THIS REQUEST RECEIVED BY:
THIS RQUEST RECEIVED ON:
5:00 PM previous Tuesday
@ .M.
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
Meetings. Your cooperation will be appreciated and contribute towards your request being
addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners'
Court.
STATE OF TEXAS
KERR COUNTY
INDEPENDENT CONTRACTOR AGREEMENT
IT IS AGREED between the COMMISSIONERS COURT OF KERR COUNTY TEXAS (hereinafter
"COUNTY"), and HEWITT ENGINEERING, INC. (hereinafter "CONTRACTOR") AS FOLLOWS:
I. TERM AND SERVICES PROVIDED:
Beginning on the date of the execution of this agreement by both parties and continuing until the
obligations of the parties are performed, CONTRACTOR shall provide the following services to
COUNTY; See Exhibit "A" attached hereto and incorporated herein for all purposes.
II. COMPENSATION:
For rendering such services, COUNTY shall pay CONTRACTOR the amounts and in accordance with
the schedule set out in Exhibit "A".
TII. CONTRACTOR HEREBY WARRANTS AS FOLLOWS:
1. It has the appropriate insurance, bonds, licenses and permits to lawfully perform the services
agreed to in Kerr County, Texas;
2. It has the necessary personnel, equipment, experience, ability and capability to provide the
services herein agreed to in an efficient, competent and timely manner; and
3. No representative of CONTRACTOR has promised or provided anything of value to any
officer or employee of Kerr County in consideration for Kerr County entering this agreement.
IV. COUNTY HEREBY WARRANTS AS FOLLOWS:
1. All applicable laws and procedures have been complied with in the execution of this
agreement.
2. All funds expended by COUNTY under the terms of this agreement are from current funds,
provided that payment for services performed under this agreement may be made during
COUNTY'S current and subsequent fiscal years.
V. MISCELLANEOUS PROVISIONS:
1. The parties agree that no officer or employee of CONTRACTOR is an employee of COUNTY,
that this is an independent contractor agreement between the parties and that no benefit is
forthcoming to any party other than what is specifically set out in this agreement and Exhibit
"A" attached hereto and incorporated herein for all purposes.
2. CONTRACTOR agrees to and does hereby, indemnify and hold harmless COUNTY, it's
officers, agents and employees from all damages, expenses, suits, actions and claims of every
kind and character whatsoever, in any manner arising out of this agreement or the performance
of the terms agreed to by the parties, from any third parties or anyone claiming by or through
CONTRACTOR, it's officers, agents, employees, successors or assigns, it being the intention
of CONTRACTOR to absolve COUNTY, it's officers, agents and employees from any liability
concerning this matter arising from any third parties or anyone claiming by or through
CONTRACTOR, it's officers, agents, or employees.
3. This agreement between the parties is the sole and only agreement between the parties
concerning the services described herein and in Exhibit "A". No other agreement, statement or
promise made by any party or any officer, agent or employee of any party, which is not set out
herein and in Exhibit "A" shall be binding or enforceable against either party.
4. No amendment, modification or alteration to this agreement shall be binding on any party
unless it is set out in writing, approved by the parties and signed by the parties or their duly
authorized representative.
5. This agreement shall be construed in accordance with the laws of the State of Texas and is to be
performed in Kerr County, Texas.
EXECUTED THIS ~ DAY OF ~ ~~ayu.~lU ~- , 2008.
inl
County Judge
M. Hewitt, P. E., C.F.M.
e tt Engineering, Inc.
00 orseshoe Ridge
ille, Texas 78028
830-285-7925
EXHIBIT A
FOR
ENGINEERING SERVICES
GENERAL TERMS AND CONDITIONS
COMPENSATION
Total compensation for engineering services will be on a time and materials basis not to exceed $10.000. This contract will
consist of multiple Work Authorizations relating to engineering and floodplain development review services. The scope and
fee for each individual Work Authorization will be agreed upon by the CLIENT and ENGINEER prior to the
commencement of any work by the ENGINEER. The fee estimate will be based on an hourly rate for engineering services
of $110.00 per hour. Reimbursable expenses will be in addition to the hourly engineering fees and are described in the
following paragraph.
REIMBURSABLE EXPENSES
Reimbursable expenses are in addition to the compensation for personnel time and include actual expenditures made in the
interest of the job, such as those for transportation, living expenses in connection with out-of--town travel, long distance
communications, expenses for reproductions (excluding reproductions for use in our office or consultant's offices), expense
of postage and handling of drawings, specifications and other documents, expense of any renderings or models, and any
similar expenses made in the interest of the job. The above expenses shall be reimbursable at 1.1 times actual cost.
BILLING
Statements are issued when appropriate and shall be payable to Hewitt Engineering, Inc. upon receipt, whenever issued,
unless otherwise agreed. Interest at one percent (1%) per month accruing from the date of statement shall be savable
on any amounts not paid within 45 days. All payments thereafter shall be applied fu-st to accrued interest on the fees and
reimbursables and then to the principal unpaid amount. Any costs incurred collecting any of the above amounts which
become delinquent, shall be paid by the CLIENT upon demand, including but not limited to, attorney's fees and the cost of
employees' time expended on the collection.
SUSPENSION OR TERMINATION OF SERVICES
If the CLIENT fails to make any payment due ENGINEER on account of it's services and expenses within forty-five (45)
days after the date of the statement, then ENGINEER may, after giving (7) days written notice to the CLIENT, suspend
services until all amounts due on services and expenses have been paid in full. Further, ENGINEER shall have the right to
withhold all drawings, specifications and other instruments of service as of the date services are suspended. In the event
that the CLIENT requests termination of the services prior to completion of a report, ENGINEER reserves the right to
complete such investigations and analyses as are necessary to protect its professional reputation, or to complete appropriate
records of the services performed to date. A termination charge to cover the cost thereof in an amount not to exceed 10%
of all charges incurred up to the date of the stoppage of the services may be made at the discretion of ENGINEER.
LAWS/REGULATIONS
This agreement is to be governed by the laws of the State of Texas. The CLIENT and the ENGINEER are each bound to a
policy of non-discrimination and equal employment opportunity. The CLIENT and ENGINEER are committed to
complying with Executive Order No. 11246, as amended; Title VII of the Civil Rights Act of 1964; the Civil Rights Act of
1991; Section 503 of the Rehabilitation Act of 1973; Section 402 of the Vietnam Era Veterans Readjustment Assistant Act
of 1974; the Americans with Disabilities Act of 1990; the Age Discrimination in Employment Act of 1967; the Equal Pay
Act of 1963 and any other applicable local, state or federal statutes or regulations.
Prior to initiating litigation against ENGINEER for any alleged claim, based on negligence or other legal theory, the
CLIENT agrees to first negotiate in good faith for a period of thirty days, then to mediate the claim under rules of
mediation as agreed to at that time.
LIMITS OF LIABILITY
ENGINEER'S services, as limited by the CLIENT, are performed with the usual thoroughness and competence of
the ENGINEER and engineering professions in Texas. No warranty or other representation, either expressed or
implied, is included or intended in ENGINEER'S proposals, contracts, reports, designs, and other services
including, without limitation, warranties of fitness or merchantability which are hereby disclaimed. In retaining
ENGINEER'S services, the CLIENT expressly agrees that in all cases, ENGINEER'S LIABILITY SHALL BE
LIMITED SOLELY TO ITS NEGLIGENT ACTS ERRORS OR OMISSIONS. ENGINEER'S liability to the
CLIENT for injury or damage to persons or property arising out of services performed for CLIENT for which legal
liability may be found to rest upon ENGINEER, other than for professional errors and omissions, will be limited to
recovery from ENGINEER'S general liability insurance coverage and shall be limited to the sum of the fee savable
to ENGINEER under this Aereement. For any damages resulting from ENGINEER'S negligent acts, errors or
omissions in rendering professional services, its liability will be limited to the sum of $50,000.00 or its fee, whichever
is less. The CLIENT agrees that in no event will it make a claim against ENGINEER after the expiration of four
years from the substantial completion of ENGINEER'S services hereunder, or the expiration of two (2) years from
the date the CLIENT knew or should have known of said claim, whichever shall first occur. Following such date, all
such CLIENT claims, if any, known or unknown, shall be deemed to be and are hereby waived. To the extent that
any applicable statute of limitations provides for a shorter period of time, such shorter time period shall control.
In the event the CLIENT makes a claim against ENGINEER at law or otherwise, for any alleged negligent act, error or
omission arising out of the performance of its professional services, and the CLIENT fails to prove such claim, then
CLIENT shall pay all costs incurred by ENGINEER in defending itself against said claim, including but not limited to,
attorney's fees, experts' fees, consultants' fees, and the cost of employee's time expended on the claim.
EXCLUDED SERVICES
ENGINEER has not been retained or compensated for and shall not have control or charge of, and shall not be responsible
for, construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in
connection with the work of any Contractor or Subcontractor or any other person performing work, or for any acts or
omissions of any of them, or for the failure of any of them to carry out work in accordance with their contract documents.
OWNERSHIP OF DOCUMENTS
All documents, field notes and data prepared or obtained by or through ENGINEER and related to the CLIENT'S project
are, and remain the property of ENGINEER as instruments of service. The CLIENT may, at its expense, receive a set of
said documents, on the condition that the CLIENT will use them solely in connection with this specific work and not for the
use and purpose of making subsequent extensions or enlargements thereto, and will not sell, publish or display them
publicly. Reuse for extension of the work or for new projects shall require written permission of ENGINEER and shall
entitle it to further compensation at a rate to be agreed upon between ENGINEER and the CLIENT. Any expense of the
documents without written authorization from ENGINEER shall be at the CLIENT'S own risk and without liability
to ENGINEER.