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R-08-08-14-8A1 - 8/14/2008RESOLUTION NO. R -08-08-14-8A1 WHEREAS, the City of Round Rock has duly advertised for bids for the Dry Branch East Tributary - Channelization / Restoration Project, and WHEREAS, Freese and Nichols, Inc. has submitted the lowest responsible bid, and WHEREAS, the City Council wishes to accept the bid of Freese and Nichols, Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a contract with Freese and Nichols, Inc. for the Dry Branch East Tributary - Channelization / Restoration Project. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 14th day of August, 2008. Cr -Yvi 171. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Secretary 0:\WDOX\RESOLUTI\R80814A1.DOC/rmc ........11:71ifit"-.--i ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY. CITY OF ROUND ROCK CONTRACT FOR ENGINEERING SERVICES FIRM: FREESE AND NICHOLS, INC. ("Engineer") ADDRESS: 10814 Jollyville Road, Building 4, Suite 100, Austin, TX 78759 PROJECT: Dry Branch East Tributary — Channelization/Restoration THE STATE OF TEXAS COUNTY OF WILLIAMSON THIS CONTRACT FOR ENGINEERING SERVICES ("Contract") is made and entered into on this the day of , 2008 by and between the CITY OF ROUND ROCK, a Texas home - rule municipal corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299, (hereinafter referred to as "City"), and Engineer, and such Contract is for the purpose of contracting for professional engineering services. RECITALS: WHEREAS, V.T.C.A., Government Code §2254.002(2)(A)(vii) under Subchapter A entitled "Professional Services Procurement Act" provides for the procurement by municipalities of services of professional engineers; and WHEREAS, City and Engineer desire to contract for such professional engineering services; and WHEREAS, City and Engineer wish to document their agreement concerning the requirements and respective obligations of the parties; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable considerations, and the covenants and agreements hereinafter contained to be kept and performed by the respective parties hereto, it is agreed as follows: Engineering Services Contract 0141.0802; 142409 DRO2DRY 1. EXHIBIT D a "A" Rev. 01/07 00064494 CONTRACT DOCUMENTS The Contract Documents consist of this Contract and any exhibits attached hereto (which exhibits are hereby incorporated into and made a part of this Contract) and all Supplemental Contracts (as defined herein in Article 13) which are subsequently issued. These form the entire contract, and all are as fully a part of this Contract as if attached to this Contract or repeated herein. ARTICLE 1 CITY SERVICES City shall perform or provide services as identified in Exhibit A entitled "City Services." ARTICLE 2 ENGINEERING SERVICES Engineer shall perform Engineering Services as identified in Exhibit B entitled "Engineering Services." Engineer shall perform the Engineering Services in accordance with the Work Schedule as identified in Exhibit C entitled "Work Schedule." Such Work Schedule shall contain a complete schedule so that the Engineering Services under this Contract may be accomplished within the specified time and at the specified cost. The Work Schedule shall provide specific work sequences and definite review times by City and Engineer of all Engineering Services. Should the review times or Engineering Services take longer than shown on the Work Schedule, through no fault of Engineer, Engineer may submit a timely written request for additional time, which shall be subject to the approval of the City Manager. ARTICLE 3 CONTRACT TERM (1) Term. The Engineer is expected to complete the Engineering Services described herein in accordance with the above described Work Schedule. If Engineer does not perform the Engineering Services in accordance with the Work Schedule, then City shall have the right to terminate this Contract as set forth below in Article 20. So long as the City elects not to terminate this Contract, it shall continue from day to day until such time as the Engineering Services are completed. Any Engineering Services performed or costs incurred after the date of termination shall not be eligible for reimbursement. Engineer shall notify City in writing as soon as possible if he/she/it determines, or reasonably anticipates, that the Engineering Services will not be completed in accordance with the Work Schedule. (2) Work Schedule. Engineer acknowledges that the Work Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of Engineering Services required herein so that construction of the project will be commenced and completed as scheduled. In this regard, and subject to adjustments in the Work Schedule as provided in Article 2 herein, Engineer shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all Engineering Services required under this Contract in a professional manner. (3) Notice to Proceed. After execution of this Contract, Engineer shall not proceed with Engineering Services until authorized in writing by City to proceed as provided in Article 7. 2. ARTICLE 4 COMPENSATION City shall pay and Engineer agrees to accept the amount shown below as full compensation for the Engineering Services performed and to be performed under this Contract. The amount payable under this Contract, without modification of the Contract as provided herein, is the sum of Ninety-two Thousand, Three Hundred Seventy-two and 73/100 Dollars ($92,372.73) as shown in Exhibit D. The lump sum amount payable shall be revised equitably only by written Supplemental Contract in the event of a change in Engineering Services as authorized by City. Engineer shall prepare and submit to City monthly progress reports in sufficient detail to support the progress of the Engineering Services and to support invoices requesting monthly payment. Any preferred format of City for such monthly progress reports shall be identified in Exhibit B. Satisfactory progress of Engineering Services shall be an absolute condition of payment. The fee herein referenced may be adjusted for additional Engineering Services requested and performed only if approved by written Supplemental Contract. ARTICLE 5 METHOD OF PAYMENT Payments to Engineer shall be made while Engineering Services are in progress. Engineer shall prepare and submit to City, not more frequently than once per month, a progress report as referenced in Article 4 above. Such progress report shall state the percentage of completion of Engineering Services accomplished during that billing period and to date. Simultaneous with submission of such progress report, Engineer shall prepare and submit one (1) original and one (1) copy of a certified invoice in a form acceptable to City. This submittal shall also include a progress assessment report in a form acceptable to City. Progress payments shall be made in proportion to the percentage of completion of Engineering Services identified in Exhibit D. Progress payments shall be made by City based upon Engineering Services actually provided and performed. Upon timely receipt and approval of each statement, City shall make a good faith effort to pay the amount which is due and payable within thirty (30) days. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. Engineer has the responsibility to submit proof to City, adequate and sufficient in its determination, that tasks were completed. The certified statements shall show the total amount earned to the date of submission and shall show the amount due and payable as of the date of the current statement. Final payment does not relieve Engineer of the responsibility of correcting any errors and/or omissions resulting from his/her/its negligence. 3. ARTICLE 6 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Engineer will be made within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for services, whichever is later. Engineer may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy; however, this policy does not apply in the event: A. There is a bona fide dispute between City and Engineer concerning the supplies, materials, or equipment delivered or the services performed that causes the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Engineer and a subcontractor or between a subcontractor and its supplier concerning supplies, materials, or equipment delivered or the Engineering Services performed which causes the payment to be late; or D. The invoice is not mailed to City in strict accordance with instructions, if any, on the purchase order, or this Contract or other such contractual agreement. City shall document to Engineer the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non -disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A., Texas Government Code. ARTICLE 7 NOTICE TO PROCEED The Engineer shall not proceed with any task listed on Exhibit B until the City has issued a written Notice to Proceed regarding such task. The City shall not be responsible for work performed or costs incurred by Engineer related to any task for which a Notice to Proceed has not been issued. ARTICLE 8 PROJECT TEAM City's Designated Representative for purposes of this Contract is as follows: Lance Shellenberger Project Manager I Public Works - Engineering and Development Services 2008 Enterprise Drive Round Rock, Texas 78664 Telephone Number (512) 218-6609 Fax Number (512) 218-5563 Email Address LShellenberger@round-rock.tx.us 4. City's Designated Representative shall be authorized to act on City's behalf with respect to this Contract. City or City's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Engineer in order to avoid unreasonable delay in the orderly and sequential progress of Engineering Services. Engineer's Designated Representative for purposes of this Contract is as follows: Jerome (Jay) Scanlon III, P.E., CFM Project Manager 10814 Jollyville Road Building 4, Suite 100 Austin, TX 78759 Telephone Number: (512) 617-3100 Fax Number: (512) 617-3101 Email Address: JWS@freese.com ARTICLE 9 PROGRESS EVALUATION Engineer shall, from time to time during the progress of the Engineering Services, confer with City at City's election. Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by City, in order for City to evaluate features of the Engineering Services. At the request of City or Engineer, conferences shall be provided at Engineer's office, the offices of City, or at other locations designated by City. When requested by City, such conferences shall also include evaluation of the Engineering Services. Should City determine that the progress in Engineering Services does not satisfy the Work Schedule, then City shall review the Work Schedule with Engineer to determine corrective action required. Engineer shall promptly advise City in writing of events which have or may have a significant impact upon the progress of the Engineering Services, including but not limited to the following: (1) Problems, delays, adverse conditions which may materially affect the ability to meet the objectives of the Work Schedule, or preclude the attainment of project Engineering Services units by established time periods; and such disclosure shall be accompanied by statement of actions taken or contemplated, and City assistance needed to resolve the situation, if any; and (2) Favorable developments or events which enable meeting the Work Schedule goals sooner than anticipated. 5. ARTICLE 10 SUSPENSION Should City desire to suspend the Engineering Services, but not to terminate this Contract, then such suspension may be effected by City giving Engineer thirty (30) calendar days' verbal notification followed by written confirmation to that effect. Such thirty -day notice may be waived in writing by agreement and signature of both parties. The Engineering Services may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from City to resume the Engineering Services. Such sixty-day notice may be waived in writing by agreement and signature of both parties. If this Contract is suspended for more than thirty (30) days, Engineer shall have the option of terminating this Contract. If City suspends the Engineering Services, the contract period as determined in Article 3, and the Work Schedule, shall be extended for a time period equal to the suspension period. City assumes no liability for Engineering Services performed or costs incurred prior to the date authorized by City for Engineer to begin Engineering Services, and/or during periods when Engineering Services is suspended, and/or subsequent to the contract completion date. ARTICLE 11 ADDITIONAL ENGINEERING SERVICES If Engineer forms a reasonable opinion that any work he/she/it has been directed to perform is beyond the scope of this Contract and as such constitutes extra work, he/she/it shall promptly notify City in writing. In the event City finds that such work does constitute extra work and exceeds the maximum amount payable, City shall so advise Engineer and a written Supplemental Contract will be executed between the parties as provided in Article 13. Engineer shall not perform any proposed additional work nor incur any additional costs prior to the execution, by both parties, of a written Supplemental Contract. City shall not be responsible for actions by Engineer nor for any costs incurred by Engineer relating to additional work not directly associated with the performance of the Engineering Services authorized in this Contract or any amendments thereto. ARTICLE 12 CHANGES IN ENGINEERING SERVICES If City deems it necessary to request changes to previously satisfactorily completed Engineering Services or parts thereof which involve changes to the original Engineering Services or character of Engineering Services under this Contract, then Engineer shall make such revisions as requested and as directed by City. Such revisions shall be considered as additional Engineering Services and paid for as specified under Article 11. Engineer shall make revisions to Engineering Services authorized hereunder as are necessary to correct errors appearing therein, when required to do so by City. No additional compensation shall be due for such Engineering Services. 6. ARTICLE 13 SUPPLEMENTAL CONTRACTS The terms of this Contract may be modified by written Supplemental Contract if City determines that there has been a significant change in (1) the scope, complexity or character of the Engineering Services, or (2) the duration of the Engineering Services. Any such Supplemental Contract must be duly authorized by the City. Engineer shall not proceed until the Supplemental Contract has been executed. Additional compensation, if appropriate, shall be identified as provided in Article 4. It is understood and agreed by and between both parties that Engineer shall make no claim for extra work done or materials furnished until the City authorizes full execution of the written Supplemental Contract and authorization to proceed. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. ARTICLE 14 OWNERSHIP OF DOCUMENTS All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this Contract are the exclusive property of City and shall be furnished to City upon request. All documents prepared by Engineer and all documents furnished to Engineer by City shall be delivered to City upon completion or termination of this Contract. Engineer, at its own expense, may retain copies of such documents or any other data which it has furnished City under this Contract. ARTICLE 15 PERSONNEL, EQUIPMENT AND MATERIAL Engineer shall furnish and maintain, at its own expense, quarters for the performance of all Engineering Services, and adequate and sufficient personnel and equipment to perform the Engineering Services as required. All employees of Engineer shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Engineer who, in the opinion of City, is incompetent or whose conduct becomes detrimental to the Engineering Services shall immediately be removed from association with the project when so instructed by City. Engineer certifies that it presently has adequate qualified personnel in its employment for performance of the Engineering Services required under this Contract, or will obtain such personnel from sources other than City. Engineer may not change the Project Manager without prior written consent of City. ARTICLE 16 SUBCONTRACTING Engineer shall not assign, subcontract or transfer any portion of the Engineering Services under this Contract without prior written approval from City. All subcontracts shall include the provisions required in this Contract and shall be approved as to form, in writing, by City prior to Engineering Services being performed under the subcontract. No subcontract shall relieve Engineer of any responsibilities under this Contract. 7. ARTICLE 17 EVALUATION OF ENGINEERING SERVICES City, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the Engineering Services performed or being performed hereunder and the premises on which it is being performed. If any review or evaluation is made on the premises of Engineer or a subcontractor, then Engineer shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of City or other representatives in the performance of their duties. ARTICLE 18 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by City before any final report is issued. City's comments on Engineer's preliminary reports shall be addressed in any final report. ARTICLE 19 VIOLATION OF CONTRACT TERMS/BREACH OF CONTRACT Violation of contract terms or breach of contract by Engineer shall be grounds for termination of this Contract, and any increased costs arising from Engineer's default, breach of contract, or violation of contract terms shall be paid by Engineer. ARTICLE 20 TERMINATION This Contract may be terminated as set forth below. (1) By mutual agreement and consent, in writing, of both parties. (2) By City, by notice in writing to Engineer, as a consequence of failure by Engineer to perform the Engineering Services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (4) By City, for reasons of its own and not subject to the mutual consent of Engineer, upon not less than thirty (30) days' written notice to Engineer. (5) By satisfactory completion of all Engineering Services and obligations described herein. Should City terminate this Contract as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to Engineer. In determining the value of the Engineering Services performed by Engineer prior to termination, City shall be the sole judge. Compensation for Engineering Services at termination will be based on a percentage of the Engineering Services completed at that time. Should City terminate this Contract under Subsection (4) immediately 8. above, then the amount charged during the thirty -day notice period shall not exceed the amount charged during the preceding thirty (30) days. If Engineer defaults in the performance of this Contract or if City terminates this Contract for fault on the part of Engineer, then City shall give consideration to the actual costs incurred by Engineer in performing the Engineering Services to the date of default, the amount of Engineering Services required which was satisfactorily completed to date of default, the value of the Engineering Services which are usable to City, the cost to City of employing another firm to complete the Engineering Services required and the time required to do so, and other factors which affect the value to City of the Engineering Services performed at the time of default. The termination of this Contract and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of City and Engineer under this Contract, except the obligations set forth herein in Article 21 entitled "Compliance with Laws." If the termination of this Contract is due to the failure of Engineer to fulfill his/her/its contractual obligations, then City may take over the project and prosecute the Engineering Services to completion. In such case, Engineer shall be liable to City for any additional and reasonable costs incurred by City. Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurements made by Engineer in support of the Engineering Services under this Contract. ARTICLE 21 COMPLIANCE WITH LAWS (1) Compliance. Engineer shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations, and the orders and decrees of any court, or administrative bodies or tribunals in any manner affecting the performance of this Contract, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. Engineer shall furnish City with satisfactory proof of his/her/its compliance. Engineer shall further obtain all permits and licenses required in the performance of the Engineering Services contracted for herein. (2) Taxes. Engineer will pay all taxes, if any, required by law arising by virtue of the Engineering Services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. ARTICLE 22 INDEMNIFICATION Engineer shall save and hold harmless City and its officers and employees from all claims and liabilities due to activities of his/her/itself and his/her/its agents or employees, performed under this Contract, which are caused by or which result from the negligent error, omission, or negligent act of Engineer or of any person employed by Engineer or under Engineer's direction or control. Engineer shall also save and hold City harmless from any and all expenses, including but not limited to reasonable attorneys fees which may be incurred by City in litigation or otherwise defending 9. claims or liabilities which may be imposed on City as a result of such negligent activities by Engineer, its agents, or employees. ARTICLE 23 ENGINEER'S RESPONSIBILITIES Engineer shall be responsible for the accuracy of his/her/its Engineering Services and shall promptly make necessary revisions or corrections to its work product resulting from errors, omissions, or negligent acts, and same shall be done without compensation. City shall determine Engineer's responsibilities for all questions arising from design errors and/or omissions. Engineer shall not be relieved of responsibility for subsequent correction of any such errors or omissions in its work product, or for clarification of any ambiguities until after the construction phase of the project has been completed. ARTICLE 24 ENGINEER'S SEAL The responsible engineer shall sign, seal and date all appropriate engineering submissions to City in accordance with the Texas Engineering Practice Act and the rules of the State Board of Registration for Professional Engineers. ARTICLE 25 NON -COLLUSION, FINANCIAL INTEREST PROHIBITED (1) Non -collusion. Engineer warrants that he/she/it has not employed or retained any company or persons, other than a bona fide employee working solely for Engineer, to solicit or secure this Contract, and that he/she/it has not paid or agreed to pay any company or engineer any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City reserves and shall have the right to annul this Contract without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. (2) Financial Interest Prohibited. Engineer covenants and represents that Engineer, his/her/its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the project. ARTICLE 26 INSURANCE (1) Insurance. Engineer, at Engineer's sole cost, shall purchase and maintain during the entire term while this Contract is in effect professional liability insurance coverage in the minimum amount of One Million Dollars per claim from a company authorized to do insurance business in Texas and otherwise acceptable to City. Engineer shall also notify City, within twenty-four (24) hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. 10. (2) Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Engineer, Engineer shall require each subconsultant performing work under this Contract to maintain during the term of this Contract, at the subconsultant's own expense, the same stipulated minimum insurance required in Article 26, Section (1) above, including the required provisions and additional policy conditions as shown below in Article 26, Section (3). Engineer shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Engineer must retain the certificates of insurance for the duration of this Contract, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. (3) Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: (a) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or reduction in limits by endorsement a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 (b) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self -Insured Retentions of whatever nature. (4) Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Engineer shall be borne solely by Engineer, with certificates of insurance evidencing such minimum coverage in force to be filed with City. Such Certificates of Insurance are evidenced as Exhibit E herein entitled "Certificates of Insurance." ARTICLE 27 COPYRIGHTS City shall have the royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any reports developed by Engineer for governmental purposes. ARTICLE 28 SUCCESSORS AND ASSIGNS This Contract shall be binding upon and inure to the benefit of the parties hereto, their successors, lawful assigns, and legal representatives. Engineer may not assign, sublet or transfer any interest in this Contract, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of City. 11. ARTICLE 29 SEVERABILITY In the event any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. ARTICLE 30 PRIOR AGREEMENTS SUPERSEDED This Contract constitutes the sole agreement of the parties hereto, and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. This Contract may only be amended or supplemented by mutual agreement of the parties hereto in writing. ARTICLE 31 ENGINEER'S ACCOUNTING RECORDS Records pertaining to the project, and records of accounts between City and Engineer, shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives at mutually convenient times. The City reserves the right to review all records it deems relevant which are related to this Contract. ARTICLE 32 NOTICES All notices to either party by the other required under this Contract shall be personally delivered or mailed to such party at the following respective addresses: City: City of Round Rock Attention: City Manager 221 East Main Street Round Rock, TX 78664 and to: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664 12. Engineer: Jerome (Jay) Scanlon III, P.E., CFM Project Manager 10814 Jollyville Road Building 4, Suite 100 Austin, TX 78759 ARTICLE 33 GENERAL PROVISIONS (1) Time is of the Essence. Engineer understands and agrees that time is of the essence and that any failure of Engineer to complete the Engineering Services for each phase of this Contract within the agreed Work Schedule may constitute a material breach of this Contract. Engineer shall be fully responsible for his/her/its delays or for failures to use his/her/its reasonable efforts in accordance with the terms of this Contract and the Engineer's standard of performance as defined herein. Where damage is caused to City due to Engineer's negligent failure to perform City may accordingly withhold, to the extent of such damage, Engineer's payments hereunder without waiver of any of City's additional legal rights or remedies. (2) Force Majeure. Neither City nor Engineer shall be deemed in violation of this Contract if prevented from performing any of their obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. (3) Enforcement and Venue. This Contract shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Contract shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. (4) Standard of Performance. The standard of care for all professional engineering, consulting and related services performed or furnished by Engineer and its employees under this Contract will be the care and skill ordinarily used by members of Engineer's profession practicing under the same or similar circumstances at the same time and in the same locality. Excepting Articles 25 and 34 herein, Engineer makes no warranties, express or implied, under this Contract or otherwise, in connection with the Engineering Services. (5) Opinion of Probable Cost. Any opinions of probable project cost or probable construction cost provided by Engineer are made on the basis of information available to Engineer and on the basis of Engineer's experience and qualifications and represents its judgment as an experienced and qualified professional engineer. However, since Engineer has no control over the cost of labor, materials, equipment or services furnished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market conditions, Engineer does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost Engineer prepares. 13. (6) Opinions and Determinations. Where the terms of this Contract provide for action to be based upon opinion, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE 34 SIGNATORY WARRANTY The undersigned signatory for Engineer hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Contract and that he/she has full and complete authority to enter into this Contract on behalf of the firm. The above -stated representations and warranties are made for the purpose of inducing City to enter into this Contract. IN WITNESS WHEREOF, the City of Round Rock has caused this Contract to be signed in its corporate name by its duly authorized City Manager or Mayor, as has Engineer, signing by and through its duly authorized representative(s), thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereof. CITY OF ROUND ROCK, TEXAS APPROVED AS TO FORM: By: Alan McGraw, Mayor Stephan L. Sheets, City Attorney ATTEST: By: Sara White, City Secretary FREESE AND NICHOLS, INC. By: *% -- .f Ld John Wolfhope, P.E. / Principal 14. LIST OF EXHIBITS ATTACHED (1) Exhibit A City Services (2) Exhibit B Engineering Services (3) Exhibit C Work Schedule (4) Exhibit D Fee Schedule (5) Exhibit E Certificates of Insurance 15. Exhibit A City Services The City of Round Rock will furnish to the Engineer the following items/information: 1. Assist with right of access to the project site at reasonable times determined by the City and as appropriate for the Engineer to take measurements, observe the site, and perform other tasks to accomplish the services listed in Exhibit B. Engineer or its sub -consultants shall make initial contact with property owners for right of access. 2. Provide one paper copy and/or one electronic copy, in a format determined by the City, of record drawings, maps, or other documents on file at the City that the Engineer requests and that the City determines are germane to accomplishing the services listed in Exhibit B. 3. Provide other assistance requested by the Engineer that the City deems appropriate. Exhibit B Engineering Services PRELIMINARY PHASE — Engineering Report 1. FNI will provide Project Management services including project coordination and communications with the City, monthly status reporting (at a minimum), coordination with other agencies, and periodic Team meetings. 2. Data Collection: A. Collect available and pertinent information regarding the project and the project site including, digital effective hydrologic and hydraulic models, digital floodplain delineations for Dry Branch, construction documents for the upstream and downstream tie-in (culverts) and existing utilities, digital site plan of the proposed high school, and previous engineering reports. B. Review previous engineering reports and construction documents relating to the proposed channel modifications. C. Make site visits as needed to collect data and examine existing conditions. 3. Environmental Review: A. Conduct Field Survey and Letter Report: Prior to making a field visit, FNI will obtain pertinent background information for the site such as soils maps, topographic maps, floodplain maps, and other readily available data. This information will be evaluated to guide the field survey described below. FNI scientists will conduct a pedestrian survey of the proposed project area to identify environmental issues. This investigation will include the following: i. Identification of "waters of the U. S.," including wetlands, as defined by U. S. Army Corps Engineers' regulations. These waters of the U. S. are regulated by the USACE and require a permit for activities conducted within the jurisdictional boundaries. The presence of jurisdictional waters such as ephemeral, intermittent, or perennial streams; wetlands; or other open waters will be documented. ii. The presence of potential habitat for any federally listed threatened or endangered species will be assessed. B. Coordination with Texas Historical Commission (THC): Projects sponsored by municipalities, that affect a cumulative area greater than five acres or that disturb more than 5,000 cubic yards require advance project review by the Texas Antiquities Committee according to Section 191.0525 (d) of the Antiquities Code of Texas. Because the proposed project is expected to exceed these disturbance thresholds, coordination with the Committee will be required. FNI will prepare a letter to the Texas Historical Commission (THC) describing the project and requesting the Committee's review and will submit a copy to the City for review and comment prior to sending it to the THC. C. Letter Report: FNI will prepare a letter report that will include a description of field observations described above; an opinion of whether or not jurisdictional waters are present, and if so, the type(s) of waters; an estimate of the area of impact to waters of the U.S.; and a discussion of potential USACE Section 404 permit options, including special considerations for final design and construction. The presence of potential habitat for federally threatened or endangered species will be documented and recommendations will be made regarding the need to coordinate with the U. S. Fish and Wildlife Service. The report will identify any potential "fatal flaws" which could impact the City pursuing the project, including the results of the review by the THC. 4. Field Survey: Field survey shall include a topographic and tree survey. A. "One call" will be contacted prior to survey. B. Survey sufficient shots in project area to generate 1' contours for the project area. C. Develop cross-sections at 50 -foot intervals and at critical points along the creek. D. Provide the location and elevation of visible above ground utilities within the channel survey limits, and survey the flow line of the existing wastewater line (parallel to the channel) at all access points. E. Identify property lines and easement locations based on information provided by the City (boundary verification). Identify all fences and fence material. F. Survey two existing culverts at Gattis School Road. G. Horizontal control will be on the Central Texas State Planar (Grid) Coordinate System (NAD83 feet) and vertical control shall be based on National Geodetic Survey/CORR benchmarks (NAVD 88). Horizontal control will be carried to second -order accuracy and the vertical control will be established to an accuracy of 0.01 feet. A scaling factor will be provided for converting from Grid to Surface coordinates for construction. H. Right -of -Entry: Surveyor shall make initial contact with land owners regarding access for survey. If landowner will not allow access, surveyor will contact the City for assistance in obtaining "right -of -entry". I. McGray and McGray will perform the surveying services per their attached proposal. 5. Existing Hydrologic & Hydraulic Analysis A. Obtain and review the digital Espey Consultants, Inc. hydrologic model for Dry Branch. i. Modify drainage areas DB4 and DB5 based on new topographic data, stream network, and the planned high school development. ii. Revise the hydrologic model based on updated City existing and ultimate land use conditions and develop runs for the following return period events: 1-, 2-, 10-, 25-, 50-, 100-, and 500 -year. The more frequent events will be used to design the low flow channel. B. Pre -project hydraulic model: Create a detailed, existing conditions HEC -RAS hydraulic model using the revised hydrologic model and new topographic data from Dry Branch to Gattis School Road. i. Downstream boundary condition will be set based on the existing Espey model of Dry Branch. ii. Model will begin just upstream of the two culverts at Gattis School Road. iii. Compute flood profiles for each return period in the revised hydrologic model (1, 2, 10, 25, 50, 100, and 500) for existing and ultimate land use conditions. iv. Map the 25 -year and 100 -year existing conditions and ultimate conditions floodplains and assess creek flooding of homes, structures, and roadways, if necessary. C. Upon completion, FNI will provide CORR one hard copy of summary modeling information and output and one electronic copy of the hydrologic and hydraulic models. 6. Channel Analysis: A. Perform preliminary hydraulic modeling needed to develop schematic plan, profile, and cross- sections for natural channel. It is our understanding that the project design criteria includes the following key aspects: i. The new channel shall be built within the CORR drainage easements. Where easements are not available the design shall tie -into the existing alignments +/- 1 -foot. ii. The 100 -year ultimate event shall be contained within the CORR drainage easements. iii. The new channel shall incorporate, to the extent possible, natural channel features in an effort to minimize the use of "hard" armoring, such as concrete. iv. The new channel shall incorporate, to the extent possible, native vegetation and plants in an effort to minimize the need for extensive future maintenance of the channel. v. The new channel shall minimize the impact to existing utilities to the extent possible. vi. The new design may need to include a livestock consideration. vii. The new design shall include provisions for keeping the existing stock tank wet. B. Meet with the CORR after developing the schematic model but prior to beginning the detailed hydraulic modeling. C. Perform the detailed hydraulic channel modeling to evaluate the proposed channel plan, profile, and cross-section. i. FNI will develop alternate designs for each reach of the proposed channel, if necessary. The primary alternative will focus on the natural channel design aspects of the design criteria and, if it is not possible to achieve the flood containment required by the CORR, the alternative will focus strictly on flood control. ii. FNI anticipates that, after the proposed configuration is modeled; several iterations of the hydraulic model will need to be developed as final adjustments are made to the proposed design. D. Develop a schematic design for the main channel and a low flow diversion from the new channel to the existing pond. The schematic design will include modifications to the existing embankment and spillway to integrate the existing pond with the new channel. 7. Prepare an Engineering Design Report: A. Report will contain schematic layouts, sketches and conceptual design criteria with appropriate exhibits to indicate considerations involved and some alternate solutions available to OWNER. B. The report will set forth FNI's findings and recommendation with opinions of probable construction costs for the project including some contingency and an allowance for professional services. C. The report will also include recommendations for additional field investigations for final design if needed. The Environmental Letter Report will be included as an Appendix to the report. D. FNI will meet with the CORR to discuss and receive comment on the Draft report and will incorporate CORR comments into the Final report. DELIVERABLES: FNI will submit the following: 1. One hard copy and one electronic copy of the survey data. 2. One hard copy of the Environmental Letter Report. 3. One hardcopy and one electronic copy of the existing hydrologic and hydraulic models. The hard copy will include the model summary input/output. At the time the existing models are submitted, FNI will submit GIS data generated for the project as GIS shapefiles. 4. Two copies of the "Issued for Review Report". The report will include the environmental letter report in the appendices. 5. Five copies of the "Final Report". The City's comments from the Issued for Review Report will be incorporated into the final report. One complete electronic version of the report, including figures, will be submitted on CD-ROM. At this time, FNI will provide one electronic copy of the final hydrologic and hydraulic models and one hard copy of the model summary input/output. Final GIS data generated for the project will be provided as GIS shapefiles. 6. Opinion of Probable Construction Cost will be submitted with the Issued for Review and Final Reports 7. 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: 1. Recreation of existing H&H models if digital files of the effective models are not available. 2. Field layouts or the furnishing of construction line and grade surveys. 3. Making property, boundary and right-of-way surveys, preparation of easement and deed descriptions, including title search and examination of deed records. 4. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. 5. Assisting OWNER in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and/or administrative proceedings in the defense or prosecution of claims disputes with Contractor(s). 6. Providing services after the completion of the engineering report not specifically listed in Article I. 7. Providing basic or additional services on an accelerated time schedule. The scope of this service include cost for overtime wages of employees and consultants, inefficiencies in work sequence and plotting or reproduction costs directly attributable to an accelerated time schedule directed by the OWNER. TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services in accordance with Exhibit C. 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. DESIGNATED REPRESENTATIVES: FNI and OWNER designate the following representatives: Owner's Designated Representative - Lance Shellenberger; 2008 Enterprise Drive, Round Rock, TX 78664; (512) 218-6609, lshellenbeger@round-rock.tx.us FNI's Project Manager - Jerome (Jay) Scanlon, P.E., CFM; 10814 Jollyville Road, Austin, TX 78759; (512) 617-3100; jay.scanlon@freese.com FNI's Accounting Representative — Patty Berdoll; 10814 Jollyville Road, Austin, TX 78759; (512) 617- 3100; patty.berdoll@freese.com Exhibit C Work Schedule Attached Behind This Page coLL co c O 0 0 0 W O CO CO N CO 00)) O) U LL CO 0 1.11m LL 00 N CO 0) 0) LL LL 000 O O) ) O co O LL LL LL 0 CO 0 CO CO CO CO CO 0 0 0 0 0 0 0 0 eD 0 m DD CO 0 0 N N m 0) 0) T m O 01 O uO O LL O O N (O Surveying (McGray) N c m v O Survey Deliverable Mon 9/29/08 Y CO T > Y Y () O 0 N N Environmental Report Env. Letter Report Deliverabii Existing H&H Analysis >. O) .(0 O O E 13 2 2 Mon 10/13/08 Meet - Review H&H 0 000000000 N- CO in Cr) CD N CO CO (O .-- NN N r LL LL LL LL LL LL 'C LL LL LL LL 0 0 0 CO CO 0 0 0 0) 0) 0) 0 0 0 0 0 0 0 0 0 0 0 F..: O L- N. O (0 N N co co (O �-. N N .N\- N N c x -- T..- c C LL 0 - C Mo Mon Mon LL O O O T, 2 LL LL Ex. H&H Model Deliverable M 0) Channel Design/Analysis M 'YCI) (0 0) Y 0-. N (0 N C 3 3— CO 3CD CO O O N N O O In 0 V ,- Draft Report Deliverabe N 0) Meet - Review Report .0 0) d 0) t O 0. 0) (0 (0 (0 0 C C 2 LL it Final Electronic Files Del N M O CO r CO O) O N M O O O W O N N N N r) N N (O N N N 0) c y 0) (1) H 2 To' Ec C C C )< (0 X X 0 W W 0 z z O E E i in a` i 4) V CD U CO 13 CO O (0 N CL: U LL O 0)) a 0 Exhibit D Fee Schedule Attached Behind This Page EXHIBIT "D" Page 1 of 2 Pages Task No. 1 2 3 4 5 U.on As royal Description Survey Environmental Letter Report H&H Models Draft Report Final Report Plat Draina. a Easements Milestone Fee $ 26,402.42 $ 11,293.74 $ 30,484.65 $ 12,657.30 $ 6,609.92 $ 4,924.70 Total $ 92,372.73 EXHIBIT "D" Page 2 of 2 Pages FNI DIRECT LABOR: Task No. Dosed •tion Principal Hours Dry PM Hours Branch East PE Hours City Tributary Revised EIT Hours of Round - Channelization 7/11/2008 Fee Estimate ENV. SCI Hours Rock ENG INTERN Hours / Restoration CAD) Hours GIS Hours Word Proc/Admin Hours Total Labor Hours Total Labor Cost 1 Project Management 2 16 6 0 0 0 0 0 0 24.00 1,104.00 BI -monthly one 2 8 3 0 0 0 0 0 0 PM reports 0 8 3 0 0 0 0 0 0 2 Field Recenn and Dat- 0 6 16 6 8 4 0 4 0 44.00 1,510.00 Site Visits 0 6 10 3 8 0 0 0 0 Data Co8ectien 0 0 6 3 0 4 0 4 0 3 Environmental Report 0 2 2 0 40 0 0 0 0 44.00 1,850.00 4 Surveying (McGray) 0 2 2 0 0 0 0 0 0 4.00 170.00 5 Existing H&H Analysis 0 6 22 58 0 18 0 6 0 110.00 3,218.00 Update H 0 2 8 24 0 4 0 0 0 Develop Hydra 0 2 12 30 0 6 0 2 0 Mapping 0 2 2 4 0 8 0 4 0 6 Channel Design/Anaiy- 2 22 72 28 4 4 120 0 144.00 5.314.00 Hydraulic ••- 1 4 24 12 0 4 0 0 0 Schematic Des 1 18 48 16 4 0 12 0 0 7 Preliminary Engineenn 0 8 20 48 12 12 32 12 4 148.00 4,384.00 Draft 0 4 12 32 8 8 24 8 2 Final 0 4 8 16 4 4 8 4 2 8 Meetings 0 6 8 6 0 0 0 0 0 20.00 762.00 IMMOMIZIT=IIIM $67.00 546.00 $39.00 529.00 ®" $16 00 519.00 538,00 Subtotal b Labor Classification $268.00 $3 128.00 �� S2 368.00 B.00 E�•�MECIE .84.00 - Total FNI Labor Cost: $58,042.73 Total FNI Expense Cost $8,230.00 General Expenses (mileage. reproduction, etc.) 51,000.00 Computers $4,620.00 Markup on Subs 10% 52,610.00 Subconsultant Expenses McGray and McGray 928,100.00 $26,100.00 MAXIMUM NOT -TO -EXCEED AMOUNT $92,372.73 Direct Labor Cost: Direct Labor Overhead (Fringe): General 004 Administrative Overhead: TOTAL Labor and Overhead: Profit on Labor TOTAL Labor Cost: 71.83% 114.30% 12% 918,112.00 $13,009.85 $20,702.02 $51,823.87 $6,218.86 $58,042.73 EXHIBIT E Certificates of Insurance Attached Behind This Page CERTIFICATE OF LIABILITY INSURANCE Exhibit "E" P Q CER: William Rigq-Hub International 777 Main St. C-50 l -ort Worth. TR 76102 Phone: $17-820-81031mail: scottMiller@hubinternational.com INSURED: Freese and Nichols], Inc. 4055 International IIz. #200 Fort Worth TX 76119 Phone: 817-735 z73c lmati: k's@freese.com THIS IS TO CERTIFY THAT the insured named above is insured by the Companies Listed above with respect to the business operations hereinafter described, for the types of insurance and in accordance with the provisions of the standard policies used by the companies, and further hereinafter described. Exceptions to the policies are noted below. Date: TDI number required. Please refer to the Texas Dept of Insurance website: http:I/www.tdi.state.tx.us/ COMPANIES AFFORDING COVERAGE TDI A t3 Continental Casualty Co. 205cift c D CO TYPE OF POLICY EFFECTIVE EXPIRATION LTR INSURANCE NUMBER DATE DATE LIMITS PROFESSIONAL LIABILITY AEA008214422 12.31 .07 - 12.31 .08 $5,000,000 Each Claim $10,000,000 Aggregate $400,000 Deductible Should any of the above described policies be cancelled or changed before the expiration date thereof, the issuing company will mail thirty (30) days written notice to the certificate holder named below. CERTIFICATE HOLDER: City Manager City of Round Rock 221 E. Main Street Round Rock, Texas 78664 140185 SIGNA - E OF AGENT L NSED IN STATE OF TEXAS Typed Name: Scott Miller Title: Sr. Vice President Page 2 Certificate of Liability Insurance T 1i irgM4 In asp eg.a 0, tO 1111101n en r; I/.r MN en rt, 1 10 sky.' oIIIII IMMO n a winos �. 111111►�X44%,'�fi� Approximate Project Study Limits Dry Branch East Tributary Channelization DATE: August 6, 2008 SUBJECT: City Council Meeting — August 14, 2008 ITEM: 8A1. Consider a resolution authorizing the Mayor to execute a Contract for Engineering Services with Freese and Nichols, Inc. for the Dry Branch East Tributary — Channelization/Restoration Project. Department: Staff Person: Justification: Engineering and Development Services Danny Halden, P.E., City Engineer The ultimate goal of this project is to develop a proper, adequate, and sustainable drainage way for the Dry Branch East Tributary. This initial contract will provide a study of the tributary to determine: a suitable and viable alignment of the tributary, the shape and size necessary to properly convey anticipated storm water flows, any right-of-way requirements, how applicable environmental or associated requirements will affect such a channel project and how they will be satisfied, and anticipated construction costs. Funding: Cost: $92, 372.73 Source of funds: Regional Detention Funds Outside Resources: Freese and Nichols, Inc. Background Information: During the construction of the Joyce Lane and Ray Berglund Subdivisions Improvements Projects, the existing Dry Branch East Tributary was observed and appeared to be in need of repair and realignment due to natural and unnatural forces. Over time, considerable erosion has taken place and damage to an existing privately owned stock tank has occurred. Furthermore, the 100 -year flood plain does not appear to be contained within the existing drainage way and/or easements across the properties within the referenced subdivisions. Because of these problems, some of which may have been created or exacerbated by upstream development which participated in the City's Regional Storm Water Management Program, City staff believes that the proposed study and probable future channel improvements are warranted. The ability of this channel to function properly will reduce chances of flood damage to private property in this area. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS i ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY CITY OF ROUND ROCK CONTRACT FOR ENGINEERING SERVICES FIRM: FREESE AND NICHOLS, INC. ("Engineer") ADDRESS: 10814 Jollyville Road, Building 4, Suite 100, Austin, TX 78759 PROJECT: Dry Branch East Tributary — Channelization/Restoration THE STATE OF TEXAS COUNTY OF WILLIAMSON THIS CONTRACT FOR ENGINEERING SERVICES ("Contract") is made and entered into on this the 14^day of AVM-- , 2008 by and between the CITY OF ROUND ROCK, a Texas home - rule municipal corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299, (hereinafter referred to as "City"), and Engineer, and such Contract is for the purpose of contracting for professional engineering services. RECITALS: WHEREAS, V.T.C.A., Government Code §2254.002(2)(A)(vii) under Subchapter A entitled "Professional Services Procurement Act" provides for the procurement by municipalities of services of professional engineers; and WHEREAS, City and Engineer desire to contract for such professional engineering services; and WHEREAS, City and Engineer wish to document their agreement concerning the requirements and respective obligations of the parties; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable considerations, and the covenants and agreements hereinafter contained to be kept and performed by the respective parties hereto, it is agreed as follows: Engineering Services Contract Rev. 01/07 0141.0802; 142409 00064494 DRO2DRY rS-14-SA1 1. CONTRACT DOCUMENTS The Contract Documents consist of this Contract and any exhibits attached hereto (which exhibits are hereby incorporated into and made a part of this Contract) and all Supplemental Contracts (as defined herein in Article 13) which are subsequently issued. These form the entire contract, and all are as fully a part of this Contract as if attached to this Contract or repeated herein. ARTICLE 1 CITY SERVICES City shall perform or provide services as identified in Exhibit A entitled "City Services." ARTICLE 2 ENGINEERING SERVICES Engineer shall perform Engineering Services as identified in Exhibit B entitled "Engineering Services." Engineer shall perform the Engineering Services in accordance with the Work Schedule as identified in Exhibit C entitled "Work Schedule." Such Work Schedule shall contain a complete schedule so that the Engineering Services under this Contract may be accomplished within the specified time and at the specified cost. The Work Schedule shall provide specific work sequences and definite review times by City and Engineer of all Engineering Services. Should the review times or Engineering Services take longer than shown on the Work Schedule, through no fault of Engineer, Engineer may submit a timely written request for additional time, which shall be subject to the approval of the City Manager. ARTICLE 3 CONTRACT TERM (1) Term. The Engineer is expected to complete the Engineering Services described herein in accordance with the above described Work Schedule. If Engineer does not perform the Engineering Services in accordance with the Work Schedule, then City shall have the right to terminate this Contract as set forth below in Article 20. So long as the City elects not to terminate this Contract, it shall continue from day to day until such time as the Engineering Services are completed. Any Engineering Services performed or costs incurred after the date of termination shall not be eligible for reimbursement. Engineer shall notify City in writing as soon as possible if he/she/it determines, or reasonably anticipates, that the Engineering Services will not be completed in accordance with the Work Schedule. (2) Work Schedule. Engineer acknowledges that the Work Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of Engineering Services required herein so that construction of the project will be commenced and completed as scheduled. In this regard, and subject to adjustments in the Work Schedule as provided in Article 2 herein, Engineer shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all Engineering Services required under this Contract in a professional manner. (3) Notice to Proceed. After execution of this Contract, Engineer shall not proceed with Engineering Services until authorized in writing by City to proceed as provided in Article 7. 2. ARTICLE 4 COMPENSATION City shall pay and Engineer agrees to accept the amount shown below as full compensation for the Engineering Services performed and to be performed under this Contract. The amount payable under this Contract, without modification of the Contract as provided herein, is the sum of Ninety-two Thousand, Three Hundred Seventy-two and 73/100 Dollars ($92,372.73) as shown in Exhibit D. The lump sum amount payable shall be revised equitably only by written Supplemental Contract in the event of a change in Engineering Services as authorized by City. Engineer shall prepare and submit to City monthly progress reports in sufficient detail to support the progress of the Engineering Services and to support invoices requesting monthly payment. Any preferred format of City for such monthly progress reports shall be identified in Exhibit B. Satisfactory progress of Engineering Services shall be an absolute condition of payment. The fee herein referenced may be adjusted for additional Engineering Services requested and performed only if approved by written Supplemental Contract. ARTICLE 5 METHOD OF PAYMENT Payments to Engineer shall be made while Engineering Services are in progress. Engineer shall prepare and submit to City, not more frequently than once per month, a progress report as referenced in Article 4 above. Such progress report shall state the percentage of completion of Engineering Services accomplished during that billing period and to date. Simultaneous with submission of such progress report, Engineer shall prepare and submit one (1) original and one (1) copy of a certified invoice in a form acceptable to City. This submittal shall also include a progress assessment report in a form acceptable to City. Progress payments shall be made in proportion to the percentage of completion of Engineering Services identified in Exhibit D. Progress payments shall be made by City based upon Engineering Services actually provided and performed. Upon timely receipt and approval of each statement, City shall make a good faith effort to pay the amount which is due and payable within thirty (30) days. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. Engineer has the responsibility to submit proof to City, adequate and sufficient in its determination, that tasks were completed. The certified statements shall show the total amount earned to the date of submission and shall show the amount due and payable as of the date of the current statement. Final payment does not relieve Engineer of the responsibility of correcting any errors and/or omissions resulting from his/her/its negligence. 3. ARTICLE 6 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Engineer will be made within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for services, whichever is later. Engineer may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy; however, this policy does not apply in the event: A. There is a bona fide dispute between City and Engineer concerning the supplies, materials, or equipment delivered or the services performed that causes the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Engineer and a subcontractor or between a subcontractor and its supplier concerning supplies, materials, or equipment delivered or the Engineering Services performed which causes the payment to be late; or D. The invoice is not mailed to City in strict accordance with instructions, if any, on the purchase order, or this Contract or other such contractual agreement. City shall document to Engineer the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non -disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A., Texas Government Code. ARTICLE 7 NOTICE TO PROCEED The Engineer shall not proceed with any task listed on Exhibit B until the City has issued a written Notice to Proceed regarding such task. The City shall not be responsible for work performed or costs incurred by Engineer related to any task for which a Notice to Proceed has not been issued. ARTICLE 8 PROJECT TEAM City's Designated Representative for purposes of this Contract is as follows: Lance Shellenberger Project Manager I Public Works - Engineering and Development Services 2008 Enterprise Drive Round Rock, Texas 78664 Telephone Number (512) 218-6609 Fax Number (512) 218-5563 Email Address LShellenberger@round-rock.tx.us 4. City's Designated Representative shall be authorized to act on City's behalf with respect to this Contract. City or City's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Engineer in order to avoid unreasonable delay in the orderly and sequential progress of Engineering Services. Engineer's Designated Representative for purposes of this Contract is as follows: Jerome (Jay) Scanlon III, P.E., CFM Project Manager 10814 Jollyville Road Building 4, Suite 100 Austin, TX 78759 Telephone Number: (512) 617-3100 Fax Number: (512) 617-3101 Email Address: JWS@freese.com ARTICLE 9 PROGRESS EVALUATION Engineer shall, from time to time during the progress of the Engineering Services, confer with City at City's election. Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by City, in order for City to evaluate features of the Engineering Services. At the request of City or Engineer, conferences shall be provided at Engineer's office, the offices of City, or at other locations designated by City. When requested by City, such conferences shall also include evaluation of the Engineering Services. Should City determine that the progress in Engineering Services does not satisfy the Work Schedule, then City shall review the Work Schedule with Engineer to determine corrective action required. Engineer shall promptly advise City in writing of events which have or may have a significant impact upon the progress of the Engineering Services, including but not limited to the following: (1) Problems, delays, adverse conditions which may materially affect the ability to meet the objectives of the Work Schedule, or preclude the attainment of project Engineering Services units by established time periods; and such disclosure shall be accompanied by statement of actions taken or contemplated, and City assistance needed to resolve the situation, if any; and (2) Favorable developments or events which enable meeting the Work Schedule goals sooner than anticipated. 5. ARTICLE 10 SUSPENSION Should City desire to suspend the Engineering Services, but not to terminate this Contract, then such suspension may be effected by City giving Engineer thirty (30) calendar days' verbal notification followed by written confirmation to that effect. Such thirty -day notice may be waived in writing by agreement and signature of both parties. The Engineering Services may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from City to resume the Engineering Services. Such sixty-day notice may be waived in writing by agreement and signature of both parties. If this Contract is suspended for more than thirty (30) days, Engineer shall have the option of terminating this Contract. If City suspends the Engineering Services, the contract period as determined in Article 3, and the Work Schedule, shall be extended for a time period equal to the suspension period. City assumes no liability for Engineering Services performed or costs incurred prior to the date authorized by City for Engineer to begin Engineering Services, and/or during periods when Engineering Services is suspended, and/or subsequent to the contract completion date. ARTICLE 11 ADDITIONAL ENGINEERING SERVICES If Engineer forms a reasonable opinion that any work he/she/it has been directed to perform is beyond the scope of this Contract and as such constitutes extra work, he/she/it shall promptly notify City in writing. In the event City finds that such work does constitute extra work and exceeds the maximum amount payable, City shall so advise Engineer and a written Supplemental Contract will be executed between the parties as provided in Article 13. Engineer shall not perform any proposed additional work nor incur any additional costs prior to the execution, by both parties, of a written Supplemental Contract. City shall not be responsible for actions by Engineer nor for any costs incurred by Engineer relating to additional work not directly associated with the performance of the Engineering Services authorized in this Contract or any amendments thereto. ARTICLE 12 CHANGES IN ENGINEERING SERVICES If City deems it necessary to request changes to previously satisfactorily completed Engineering Services or parts thereof which involve changes to the original Engineering Services or character of Engineering Services under this Contract, then Engineer shall make such revisions as requested and as directed by City. Such revisions shall be considered as additional Engineering Services and paid for as specified under Article 11. Engineer shall make revisions to Engineering Services authorized hereunder as are necessary to correct errors appearing therein, when required to do so by City. No additional compensation shall be due for such Engineering Services. 6. ARTICLE 13 SUPPLEMENTAL CONTRACTS The terms of this Contract may be modified by written Supplemental Contract if City determines that there has been a significant change in (1) the scope, complexity or character of the Engineering Services, or (2) the duration of the Engineering Services. Any such Supplemental Contract must be duly authorized by the City. Engineer shall not proceed until the Supplemental Contract has been executed. Additional compensation, if appropriate, shall be identified as provided in Article 4. It is understood and agreed by and between both parties that Engineer shall make no claim for extra work done or materials furnished until the City authorizes full execution of the written Supplemental Contract and authorization to proceed. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. ARTICLE 14 OWNERSHIP OF DOCUMENTS All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this Contract are the exclusive property of City and shall be furnished to City upon request. All documents prepared by Engineer and all documents furnished to Engineer by City shall be delivered to City upon completion or termination of this Contract. Engineer, at its own expense, may retain copies of such documents or any other data which it has furnished City under this Contract. ARTICLE 15 PERSONNEL, EQUIPMENT AND MATERIAL Engineer shall furnish and maintain, at its own expense, quarters for the performance of all Engineering Services, and adequate and sufficient personnel and equipment to perform the Engineering Services as required. All employees of Engineer shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Engineer who, in the opinion of City, is incompetent or whose conduct becomes detrimental to the Engineering Services shall immediately be removed from association with the project when so instructed by City. Engineer certifies that it presently has adequate qualified personnel in its employment for performance of the Engineering Services required under this Contract, or will obtain such personnel from sources other than City. Engineer may not change the Project Manager without prior written consent of City. ARTICLE 16 SUBCONTRACTING Engineer shall not assign, subcontract or transfer any portion of the Engineering Services under this Contract without prior written approval from City. All subcontracts shall include the provisions required in this Contract and shall be approved as to form, in writing, by City prior to Engineering Services being performed under the subcontract. No subcontract shall relieve Engineer of any responsibilities under this Contract. 7. ARTICLE 17 EVALUATION OF ENGINEERING SERVICES City, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the Engineering Services performed or being performed hereunder and the premises on which it is being performed. If any review or evaluation is made on the premises of Engineer or a subcontractor, then Engineer shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of City or other representatives in the performance of their duties. ARTICLE 18 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by City before any final report is issued. City's comments on Engineer's preliminary reports shall be addressed in any final report. ARTICLE 19 VIOLATION OF CONTRACT TERMS/BREACH OF CONTRACT Violation of contract terms or breach of contract by Engineer shall be grounds for termination of this Contract, and any increased costs arising from Engineer's default, breach of contract, or violation of contract terms shall be paid by Engineer. ARTICLE 20 TERMINATION This Contract may be terminated as set forth below. (1) By mutual agreement and consent, in writing, of both parties. (2) By City, by notice in writing to Engineer, as a consequence of failure by Engineer to perform the Engineering Services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (4) By City, for reasons of its own and not subject to the mutual consent of Engineer, upon not less than thirty (30) days' written notice to Engineer. (5) By satisfactory completion of all Engineering Services and obligations described herein. Should City terminate this Contract as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to Engineer. In determining the value of the Engineering Services performed by Engineer prior to termination, City shall be the sole judge. Compensation for Engineering Services at termination will be based on a percentage of the Engineering Services completed at that time. Should City terminate this Contract under Subsection (4) immediately 8. above, then the amount charged during the thirty -day notice period shall not exceed the amount charged during the preceding thirty (30) days. If Engineer defaults in the performance of this Contract or if City terminates this Contract for fault on the part of Engineer, then City shall give consideration to the actual costs incurred by Engineer in performing the Engineering Services to the date of default, the amount of Engineering Services required which was satisfactorily completed to date of default, the value of the Engineering Services which are usable to City, the cost to City of employing another firm to complete the Engineering Services required and the time required to do so, and other factors which affect the value to City of the Engineering Services performed at the time of default. The termination of this Contract and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of City and Engineer under this Contract, except the obligations set forth herein in Article 21 entitled "Compliance with Laws." If the termination of this Contract is due to the failure of Engineer to fulfill his/her/its contractual obligations, then City may take over the project and prosecute the Engineering Services to completion. In such case, Engineer shall be liable to City for any additional and reasonable costs incurred by City. Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurements made by Engineer in support of the Engineering Services under this Contract. ARTICLE 21 COMPLIANCE WITH LAWS (1) Compliance. Engineer shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations, and the orders and decrees of any court, or administrative bodies or tribunals in any manner affecting the performance of this Contract, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. Engineer shall furnish City with satisfactory proof of his/her/its compliance. Engineer shall further obtain all permits and licenses required in the performance of the Engineering Services contracted for herein. (2) Taxes. Engineer will pay all taxes, if any, required by law arising by virtue of the Engineering Services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. ARTICLE 22 INDEMNIFICATION Engineer shall save and hold harmless City and its officers and employees from all claims and liabilities due to activities of his/her/itself and his/her/its agents or employees, performed under this Contract, which are caused by or which result from the negligent error, omission, or negligent act of Engineer or of any person employed by Engineer or under Engineer's direction or control. Engineer shall also save and hold City harmless from any and all expenses, including but not limited to reasonable attorneys fees which may be incurred by City in litigation or otherwise defending 9. claims or liabilities which may be imposed on City as a result of such negligent activities by Engineer, its agents, or employees. ARTICLE 23 ENGINEER'S RESPONSIBILITIES Engineer shall be responsible for the accuracy of his/her/its Engineering Services and shall promptly make necessary revisions or corrections to its work product resulting from errors, omissions, or negligent acts, and same shall be done without compensation. City shall determine Engineer's responsibilities for all questions arising from design errors and/or omissions. Engineer shall not be relieved of responsibility for subsequent correction of any such errors or omissions in its work product, or for clarification of any ambiguities until after the construction phase of the project has been completed. ARTICLE 24 ENGINEER'S SEAL The responsible engineer shall sign, seal and date all appropriate engineering submissions to City in accordance with the Texas Engineering Practice Act and the rules of the State Board of Registration for Professional Engineers. ARTICLE 25 NON -COLLUSION, FINANCIAL INTEREST PROHIBITED (1) Non -collusion. Engineer warrants that he/she/it has not employed or retained any company or persons, other than a bona fide employee working solely for Engineer, to solicit or secure this Contract, and that he/she/it has not paid or agreed to pay any company or engineer any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City reserves and shall have the right to annul this Contract without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. (2) Financial Interest Prohibited. Engineer covenants and represents that Engineer, his/her/its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the project. ARTICLE 26 INSURANCE (1) Insurance. Engineer, at Engineer's sole cost, shall purchase and maintain during the entire term while this Contract is in effect professional liability insurance coverage in the minimum amount of One Million Dollars per claim from a company authorized to do insurance business in Texas and otherwise acceptable to City. Engineer shall also notify City, within twenty-four (24) hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. 10. (2) Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Engineer, Engineer shall require each subconsultant performing work under this Contract to maintain during the term of this Contract, at the subconsultant's own expense, the same stipulated minimum insurance required in Article 26, Section (1) above, including the required provisions and additional policy conditions as shown below in Article 26, Section (3). Engineer shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Engineer must retain the certificates of insurance for the duration of this Contract, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. (3) Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: (a) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or reduction in limits by endorsement a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 (b) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self -Insured Retentions of whatever nature. (4) Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Engineer shall be borne solely by Engineer, with certificates of insurance evidencing such minimum coverage in force to be filed with City. Such Certificates of Insurance are evidenced as Exhibit E herein entitled "Certificates of Insurance." ARTICLE 27 COPYRIGHTS City shall have the royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any reports developed by Engineer for governmental purposes. ARTICLE 28 SUCCESSORS AND ASSIGNS This Contract shall be binding upon and inure to the benefit of the parties hereto, their successors, lawful assigns, and legal representatives. Engineer may not assign, sublet or transfer any interest in this Contract, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of City. 11. ARTICLE 29 SEVERABILITY In the event any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. ARTICLE 30 PRIOR AGREEMENTS SUPERSEDED This Contract constitutes the sole agreement of the parties hereto, and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. This Contract may only be amended or supplemented by mutual agreement of the parties hereto in writing. ARTICLE 31 ENGINEER'S ACCOUNTING RECORDS Records pertaining to the project, and records of accounts between City and Engineer, shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives at mutually convenient times. The City reserves the right to review all records it deems relevant which are related to this Contract. ARTICLE 32 NOTICES All notices to either party by the other required under this Contract shall be personally delivered or mailed to such party at the following respective addresses: City: City of Round Rock Attention: City Manager 221 East Main Street Round Rock, TX 78664 and to: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664 12. Engineer: Jerome (Jay) Scanlon III, P.E., CFM Project Manager 10814 Jollyville Road Building 4, Suite 100 Austin, TX 78759 ARTICLE 33 GENERAL PROVISIONS (1) Time is of the Essence. Engineer understands and agrees that time is of the essence and that any failure of Engineer to complete the Engineering Services for each phase of this Contract within the agreed Work Schedule may constitute a material breach of this Contract. Engineer shall be fully responsible for his/her/its delays or for failures to use his/her/its reasonable efforts in accordance with the terms of this Contract and the Engineer's standard of performance as defined herein. Where damage is caused to City due to Engineer's negligent failure to perform City may accordingly withhold, to the extent of such damage, Engineer's payments hereunder without waiver of any of City's additional legal rights or remedies. (2) Force Majeure. Neither City nor Engineer shall be deemed in violation of this Contract if prevented from performing any of their obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. (3) Enforcement and Venue. This Contract shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Contract shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. (4) Standard of Performance. The standard of care for all professional engineering, consulting and related services performed or furnished by Engineer and its employees under this Contract will be the care and skill ordinarily used by members of Engineer's profession practicing under the same or similar circumstances at the same time and in the same locality. Excepting Articles 25 and 34 herein, Engineer makes no warranties, express or implied, under this Contract or otherwise, in connection with the Engineering Services. (5) Opinion of Probable Cost. Any opinions of probable project cost or probable construction cost provided by Engineer are made on the basis of information available to Engineer and on the basis of Engineer's experience and qualifications and represents its judgment as an experienced and qualified professional engineer. However, since Engineer has no control over the cost of labor, materials, equipment or services furnished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market conditions, Engineer does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost Engineer prepares. 13. (6) Opinions and Determinations. Where the terms of this Contract provide for action to be based upon opinion, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE 34 SIGNATORY WARRANTY The undersigned signatory for Engineer hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Contract and that he/she has full and complete authority to enter into this Contract on behalf of the firm. The above -stated representations and warranties are made for the purpose of inducing City to enter into this Contract. IN WITNESS WHEREOF, the City of Round Rock has caused this Contract to be signed in its corporate name by its duly authorized City Manager or Mayor, as has Engineer, signing by and through its duly authorized representative(s), thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereof. CITY OF ROUND ROCK, TEXAS By: Alan McGraw, Mayor ATTEST: By: Sara White, City Secretary FREESE AND NICHOLS, INC. By: ... tr./ John Wolthope, P.E. / Principal 14. APP • VED AS T C FORM: �'.� li . 41, l.l' Steph. L. Sheets, City r'ttorney LIST OF EXHIBITS ATTACHED (1) Exhibit A City Services (2) Exhibit B Engineering Services (3) Exhibit C Work Schedule (4) Exhibit D Fee Schedule (5) Exhibit E Certificates of Insurance Exhibit A City Services The City of Round Rock will furnish to the Engineer the following items/information: 1. Assist with right of access to the project site at reasonable times determined by the City and as appropriate for the Engineer to take measurements, observe the site, and perform other tasks to accomplish the services listed in Exhibit B. Engineer or its sub -consultants shall make initial contact with property owners for right of access. 2. Provide one paper copy and/or one electronic copy, in a format determined by the City, of record drawings, maps, or other documents on file at the City that the Engineer requests and that the City determines are germane to accomplishing the services listed in Exhibit B. 3. Provide other assistance requested by the Engineer that the City deems appropriate. Exhibit B Engineering Services PRELIMINARY PHASE — Engineering Report 1. FNI will provide Project Management services including project coordination and communications with the City, monthly status reporting (at a minimum), coordination with other agencies, and periodic Team meetings. 2. Data Collection: A. Collect available and pertinent information regarding the project and the project site including, digital effective hydrologic and hydraulic models, digital floodplain delineations for Dry Branch, construction documents for the upstream and downstream tie-in (culverts) and existing utilities, digital site plan of the proposed high school, and previous engineering reports. B. Review previous engineering reports and construction documents relating to the proposed channel modifications. C. Make site visits as needed to collect data and examine existing conditions. 3. Environmental Review: A. Conduct Field Survey and Letter Report: Prior to making a field visit, FNI will obtain pertinent background information for the site such as soils maps, topographic maps, floodplain maps, and other readily available data. This information will be evaluated to guide the field survey described below. FNI scientists will conduct a pedestrian survey of the proposed project area to identify environmental issues. This investigation will include the following: i. Identification of "waters of the U. S.," including wetlands, as defined by U. S. Army Corps Engineers' regulations. These waters of the U. S. are regulated by the USACE and require a permit for activities conducted within the jurisdictional boundaries. The presence of jurisdictional waters such as ephemeral, intermittent, or perennial streams; wetlands; or other open waters will be documented. ii. The presence of potential habitat for any federally listed threatened or endangered species will be assessed. B. Coordination with Texas Historical Commission (THC): Projects sponsored by municipalities, that affect a cumulative area greater than five acres or that disturb more than 5,000 cubic yards require advance project review by the Texas Antiquities Committee according to Section 191.0525 (d) of the Antiquities Code of Texas. Because the proposed project is expected to exceed these disturbance thresholds, coordination with the Committee will be required. FNI will prepare a letter to the Texas Historical Commission (THC) describing the project and requesting the Committee's review and will submit a copy to the City for review and comment prior to sending it to the THC. C. Letter Report: FNI will prepare a letter report that will include a description of field observations described above; an opinion of whether or not jurisdictional waters are present, and if so, the type(s) of waters; an estimate of the area of impact to waters of the U.S.; and a discussion of potential USACE Section 404 permit options, including special considerations for final design and construction. The presence of potential habitat for federally threatened or endangered species will be documented and recommendations will be made regarding the need to coordinate with the U. S. Fish and Wildlife Service. The report will identify any potential "fatal flaws" which could impact the City pursuing the project, including the results of the review by the THC. 4. Field Survey: Field survey shall include a topographic and tree survey. A. "One call" will be contacted prior to survey. B. Survey sufficient shots in project area to generate 1' contours for the project area. C. Develop cross-sections at 50 -foot intervals and at critical points along the creek. D. Provide the location and elevation of visible above ground utilities within the channel survey limits, and survey the flow line of the existing wastewater line (parallel to the channel) at all access points. E. Identify property lines and easement locations based on information provided by the City (boundary verification). Identify all fences and fence material. F. Survey two existing culverts at Gattis School Road. G. Horizontal control will be on the Central Texas State Planar (Grid) Coordinate System (NAD83 feet) and vertical control shall be based on National Geodetic Survey/CORR benchmarks (NAVD 88). Horizontal control will be carried to second -order accuracy and the vertical control will be established to an accuracy of 0.01 feet. A scaling factor will be provided for converting from Grid to Surface coordinates for construction. H. Right -of -Entry: Surveyor shall make initial contact with land owners regarding access for survey. If landowner will not allow access, surveyor will contact the City for assistance in obtaining "right -of -entry". I. McGray and McGray will perform the surveying services per their attached proposal. 5. Existing Hydrologic & Hydraulic Analysis A. Obtain and review the digital Espey Consultants, Inc. hydrologic model for Dry Branch. i. Modify drainage areas DB4 and DB5 based on new topographic data, stream network, and the planned high school development. ii. Revise the hydrologic model based on updated City existing and ultimate land use conditions and develop runs for the following return period events: 1-, 2-, 10-, 25-, 50-, 100-, and 500 -year. The more frequent events will be used to design the low flow channel. B. Pre -project hydraulic model: Create a detailed, existing conditions HEC -RAS hydraulic model using the revised hydrologic model and new topographic data from Dry Branch to Gattis School Road. i. Downstream boundary condition will be set based on the existing Espey model of Dry Branch. ii. Model will begin just upstream of the two culverts at Gattis School Road. iii. Compute flood profiles for each return period in the revised hydrologic model (1, 2, 10, 25, 50, 100, and 500) for existing and ultimate land use conditions. iv. Map the 25 -year and 100 -year existing conditions and ultimate conditions floodplains and assess creek flooding of homes, structures, and roadways, if necessary. C. Upon completion, FNI will provide CORR one hard copy of summary modeling information and output and one electronic copy of the hydrologic and hydraulic models. 6. Channel Analysis: A. Perform preliminary hydraulic modeling needed to develop schematic plan, profile, and cross- sections for natural channel. It is our understanding that the project design criteria includes the following key aspects: i. The new channel shall be built within the CORR drainage easements. Where easements are not available the design shall tie -into the existing alignments +/- 1 -foot. ii. The 100 -year ultimate event shall be contained within the CORR drainage easements. iii. The new channel shall incorporate, to the extent possible, natural channel features in an effort to minimize the use of "hard" armoring, such as concrete. iv. The new channel shall incorporate, to the extent possible, native vegetation and plants in an effort to minimize the need for extensive future maintenance of the channel. v. The new channel shall minimize the impact to existing utilities to the extent possible. vi. The new design may need to include a livestock consideration. vii. The new design shall include provisions for keeping the existing stock tank wet. B. Meet with the CORR after developing the schematic model but prior to beginning the detailed hydraulic modeling. C. Perform the detailed hydraulic channel modeling to evaluate the proposed channel plan, profile, and cross-section. i. FNI will develop alternate designs for each reach of the proposed channel, if necessary. The primary alternative will focus on the natural channel design aspects of the design criteria and, if it is not possible to achieve the flood containment required by the CORR, the alternative will focus strictly on flood control. ii. FNI anticipates that, after the proposed configuration is modeled; several iterations of the hydraulic model will need to be developed as final adjustments are made to the proposed design. D. Develop a schematic design for the main channel and a low flow diversion from the new channel to the existing pond. The schematic design will include modifications to the existing embankment and spillway to integrate the existing pond with the new channel. 7. Prepare an Engineering Design Report: A. Report will contain schematic layouts, sketches and conceptual design criteria with appropriate exhibits to indicate considerations involved and some alternate solutions available to OWNER. B. The report will set forth FNI's findings and recommendation with opinions of probable construction costs for the project including some contingency and an allowance for professional services. C. The report will also include recommendations for additional field investigations for final design if needed. The Environmental Letter Report will be included as an Appendix to the report. D. FNI will meet with the CORR to discuss and receive comment on the Draft report and will incorporate CORR comments into the Final report. DELIVERABLES: FNI will submit the following: 1. One hard copy and one electronic copy of the survey data. 2. One hard copy of the Environmental Letter Report. 3. One hard copy and one electronic copy of the existing hydrologic and hydraulic models. The hard copy will include the model summary input/output. At the time the existing models are submitted, FNI will submit GIS data generated for the project as GIS shapefiles. 4. Two copies of the "Issued for Review Report". The report will include the environmental letter report in the appendices. 5. Five copies of the "Final Report". The City's comments from the Issued for Review Report will be incorporated into the final report. One complete electronic version of the report, including figures, will be submitted on CD-ROM. At this time, FNI will provide one electronic copy of the final hydrologic and hydraulic models and one hard copy of the model summary input/output. Final GIS data generated for the project will be provided as GIS shapefiles. 6. Opinion of Probable Construction Cost will be submitted with the Issued for Review and Final Reports 7. 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: 1. Recreation of existing H&H models if digital files of the effective models are not available. 2. Field layouts or the furnishing of construction line and grade surveys. 3. Making property, boundary and right-of-way surveys, preparation of easement and deed descriptions, including title search and examination of deed records. 4. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. 5. Assisting OWNER in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and/or administrative proceedings in the defense or prosecution of claims disputes with Contractor(s). 6. Providing services after the completion of the engineering report not specifically listed in Article 1. 7. Providing basic or additional services on an accelerated time schedule. The scope of this service include cost for overtime wages of employees and consultants, inefficiencies in work sequence and plotting or reproduction costs directly attributable to an accelerated time schedule directed by the OWNER. TIME OF COMPLETION: FNI is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services in accordance with Exhibit C. 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. DESIGNATED REPRESENTATIVES: FNI and OWNER designate the following representatives: Owner's Designated Representative - Lance Shellenberger; 2008 Enterprise Drive, Round Rock, TX 78664; (512) 218-6609, lshellenbeger@round-rock.tx.us FNI's Project Manager - Jerome (Jay) Scanlon, P.E., CFM; 10814 Jollyville Road, Austin, TX 78759; (512) 617-3100; jay.scanlon@freese.com FNI's Accounting Representative — Patty Berdoll; 10814 Jollyville Road, Austin, TX 78759; (512) 617- 3100; patty.berdoll@freese.com Exhibit C Work Schedule Attached Behind This Page CO m O c CO CO O� O� O -H z N rn N CO `- LC)CO (O U N N Of T n 0 co O 00 (1) N ra- O 0 00 M Mon 8/18/08 r z CO CO N CO 0) O) u_ LL CO O C N 6) LL co co 3> O 0 O Mon 8/18/08 Surveying (McGray) Survey Deliverable 0 0 o 0) co co m N N m L.L. c LL LL Mon 8/18/08 Mon 8/18/08 F F Mon 9/29/08 co CO T. US >. CO Y 3 3m m 3 3 CO (O O0 ( N N N Field Reconn and Data Collectii Environmental Report Env. Letter Report Deliverable CO as O Existing H&H Analysis co C,r F Mon 10/13/08 Meet - Review H&H ILo F Ex. H&H Model Deliverable O IN - o 0 o o La 6- N LL LL lL LL Mon 10/20/08 Mon 11/17/08 Mon 11/17/08 W (2, 0) N LL Fri Mon 12/8/08 CO - CO CO m 3 3 CO -0 CO N Channel Design/Analysis OD O) Le) Preliminary Engineering Report O N N Draft Report Deliverabe N N N a) CO N Fr Mon 12/22/08 Meet - Review Report N 0 0 0 0 N (O CO CO LL LL LL Mon 12/22/08 0) O) O) 0 0 0 CO CO C \ O c _ LL LL n CO N N >. Y CO CO a N 6 'O O O Final Report Deliverable Final Electronic Files Del N (N N IN Ns CO External Tasks • E> Extemal Milestone 0 m 0) 0 i Y cn CO a 1- CO a Exhibit D Fee Schedule Attached Behind This Page EXHIBIT "D" Page 1 of 2 Pages FNI Deliverables: Task No. Description Milestone Fee 1 Survey $ 26,402.42 2 Environmental Letter Report $ 11,293.74 3 H&H Models $ 30,484.65 4 Draft Report $ 12,657.30 5 Final Report $ 6,609.92 Upon Approval Plat Drainage Easements $ 4,924.70 Total $ 92,372.73 EXHIBIT "D" Page 2 of 2 Pages FNI DIRECT LABOR: Task No. Descri.tion Principal Hours Dry PM Hours Branch East PE Hours City Tributary Revised EIT Hours of Round - Channelization 7/11/2008 Fee Estimate ENV. SCI Hours Rock ENG INTERN Hours / Restoration CADD Hours GIS Hours Word Proc/Admin Hours Total Labor Hours Total Labor Cost 1 Project Management 2 16 6 0 0 0 0 0 0 24.00 1,104.00 Bi -monthly one 2 8 3 0 0 0 0 0 0 PM reports 0 8 3 0 0 0 0 0 0 2 Field Reconn and Data 0 6 16 6 8 4 0 4 0 44.00 1,510.00 Site Visits 0 6 10 3 0 0 0 0 0 Data Collection 0 0 6 3 0 4 0 4 0 3 Environmental Report 0 2 2 0 40 0 0 0 0 44.00 1,650.00 4 Surveying (McGray) 0 2 2 0 0 0 0 0 0 4.00 170.00 5 Existing H&H Analysis 0 6 22 58 0 18 0 6 0 110.00 3,218.00 Update Hydrolo 0 2 8 24 0 4 0 0 0 Develop Hydra 0 2 12 30 0 6 0 0 Mapping 0 2 2 4 0 8 0 4 0 6 Channel Design/Analy- 2 22 72 28 4 4 12 0 0 144.00 5,314.00 Hydraulic Mode 1 4 24 12 0 4 0 0 0 Schematic Desi 18 48 16 4 0 12 0 0 7 Preliminary Engineerin 0 8 20 48 12 12 32 12 4 148.00 4,384.00 Draft 0 4 12 32 8 8 24 8 2 Final 0 4 8 16 4 4 8 4 2 8 Meetings 0 6 8 6 0 0 0 0 0 20.00 762.00 11111113:=1111i1ECIMINMIUMamm®o■ 538.00 $18112.00 EEMEIM $67.00 $46.00 $39.00 $29.00 MOM= $16.00 $28.00 $19.00 IIMEMENIE 538.00 Subtotal b Labor Classification $268.00 $3 128.00 MIERMINMEIMENI $2 368.00 $608 00 MEINIMMIIIMEEIM EMBER Total FNI Labor Cost: 558,042.73 Total FNI Expense Cost: 88,230.00 General Expenses (mileage, reproduction, etc.) $1,000.00 Computers $4,620.00 Markup on Subs 10% $2,610.00 Subconsultant Expenses McGray and McGray $28,100.00 $26,100.00 MAXIMUM NOT -TO -EXCEED AMOUNT $92,372.73 Direct Labor Cost: Direct Labor Overhead (Fringe): General and Administrative Overhead: TOTAL Labor and Overhead: Profit on Labor TOTAL Labor Cost: 71.83% 11430% 12% $18,112.00 $13,009.85 $20,702.02 $51,823.87 $6,218.86 $58,042.73 EXHIBIT E Certificates of Insurance Attached Behind This Page CERTIFICATE OF LIABILITY INSURANCE Exhibit "E" PRop t;ER: William Riqq-Hub International 777 Main St. C-50 Fort Worth, TX 76102 Phone: 817-820-81(l:Qmail: Scott. mi I ler@hubinternational.com INSURED: Freese and Nichols) Inc. 4055 International I5Iz, #200 Fort Worth. TX 76119 Phone: 817-735-7300mail: kjs@freese.com THIS ITO CERTIFY THAT the Insured named above is insured by the Companies listed above with respect to the business operations hereinafter described, for the types of insurance and in accordance with the provisions of the standard policies used by the companies, and further hereinafter described. Exceptions to the policies are noted below. Date: TDI number required. Please refer to the Texas Dept of Insurance webslte: http:Uwww.tdi.state.tx.usf CO TYPE OF POLICY EFFECTIVE EXPIRATION LTR INSURANCE NUMBER DATE DATE LIMITS PROFESSIONAL LIABILITY AEA008214422 12.31 .07 - 12.31 .08 $5,000,000 Each Claim $10,000,000 Aggregate $400,000 Deductible Should any of the above described policies be cancelled or changed before the expiration date thereof, the issuing company will mail thirty (30) days written notice to the certificate holder named below. CERTIFICATE HOLDER: City Manager City of Round Rock 221 E. Main Street Round Rock, Texas 78664 SIGNA E OF AGENT L NSED IN IN STATE OF TEXAS Typed Name: Scott Miller Title: Sr. Vice President 140185 Page 2 Certificate of Liability Insurance COMPANIES AFFORDING COVERAGE TDI A Continental Casualty Co. 2n550 B c D CO TYPE OF POLICY EFFECTIVE EXPIRATION LTR INSURANCE NUMBER DATE DATE LIMITS PROFESSIONAL LIABILITY AEA008214422 12.31 .07 - 12.31 .08 $5,000,000 Each Claim $10,000,000 Aggregate $400,000 Deductible Should any of the above described policies be cancelled or changed before the expiration date thereof, the issuing company will mail thirty (30) days written notice to the certificate holder named below. CERTIFICATE HOLDER: City Manager City of Round Rock 221 E. Main Street Round Rock, Texas 78664 SIGNA E OF AGENT L NSED IN IN STATE OF TEXAS Typed Name: Scott Miller Title: Sr. Vice President 140185 Page 2 Certificate of Liability Insurance