R-03-08-28-10F1 - 8/28/2003RESOLUTION NO. R -03-08-28-10F1
WHEREAS, the City of Round Rock desires to retain construction
materials and inspection and testing services for the improvements to
the Dell Diamond/United Heritage Facility, and
WHEREAS, Kleinfelder has submitted an Agreement for Consulting
Services to provide said services, and
WHEREAS, the City Council desires to enter into said agreement
with Kleinfelder, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is
behalf of the City
Construction Materials
Improvements to the
Kleinfelder, a copy of
the
hereby authorized and directed to execute on
an Agreement for Consulting Services for
and Inspection and Testing Services for the
Dell Diamond/United Heritage Facility with
said agreement being attached hereto as Exhibit
and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of
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 28th day of August,
ATTE
NY
. Cit
CHRISTINE R. MARTINEZ, City Secretar
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Round Rock, Texas
Agreement for Consulting Services with Kleinfelder for
Construction Materials and Inspection and Testing Services for
"Improvements to the Dell Diamond/United Heritage Facility"
AGREEMENT made as of the ( ) day of the month of in the year Two
Thousand Three.
(In words, indicate day, month and year.)
BETWEEN the City of Round Rock, Texas, identified herein as "City":
(Name, address and other information.)
City of Round Rock
221 East Main Street
Round Rock, Williamson County, Texas 78664
and Consultant, identified herein as "Kleinfelder":
(Name, address and other information.)
Kleinfelder
3601 Manor Road
Austin, Texas 78723
For the following Project:
(Include detailed description of Project.)
Providing consulting/technical services for the City of Round Rock Project referred to as "Improvements to Dell
Diamond/United Heritage Facility," said services to include sampling and testing of construction materials, field
observations, and professional consultations.
City and Kleinfelder agree as follows:
ARTICLE 1.1 INITIAL INFORMATION
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1.1.1 This Agreement is based on the following information and assumptions.
(Note the disposition for the following items by inserting the requested information or a statement such as "not applicable, " "unknown at time of
execution" or "to be determined later by mutual agreement. ' )
1.1.2 PROJECT PARAMETERS
1.1.2.1 The objective or use is:
(Iden fy or describe, if appropriate, proposed use or goals.)
Objectives include, but are not limited to, obtaining consulting services from Kleinfelder including providing
construction materials inspection and testing on the site of the Dell Diamond/United Heritage Facility.
1.1.2.2 The physical parameters are:
(Ident fy or describe, if appropriate, size, location, dimensions, or other pertinent information, such as geotechnical reports about the site.)
The site of the Dell Diamond/United Heritage Facility in Round Rock, Williamson County, Texas.
1.1.2.3 City's Program is:
(Ident fy documentation or state the manner in which the program will be developed.)
1.1.2.4 The legal parameters are:
(Identfy pertinent legal information, including, if appropriate, land surveys and legal descriptions and restrictions of the site.)
EXHIBIT
a.
a "A"
1.1.2.5 The Scope of Services is as follows:
1. Soils Testing
a. Sample subgrade soils, fill materials, and base courses and deliver to Kleinfelder's laboratory for
reference tests as listed below:
Atterberg Limits
Sieve Analysis
-- Moisture Density Curve
b. Perform visual inspection of pier excavations and load-bearing soils prior to placement of concrete
c. Conduct field moisture and density tests using a nuclear density device
d. Prepare reports of tests
2. Concrete Testing
a. Review the concrete mix design for compliance with the project plans and specifications
b. Sample concrete and test for the following:
-- Slump
Air Content (if requested)
-- Temperature
c. Sample concrete and prepare test cylinders
d. Cure test cylinders and conduct compressive strength tests_
e. Observe final placement of reinforcing steel
f. Prepare report of tests
3. Structural Steel Inspections
a. Review the shop drawings to ensure that they have been approved by the structural engineer
before fabrication
b. Review welder certifications of any welder performing structural welds on the project
c. Confirm placement and spacing of anchor bolts
d. Perform random bolting/welding inspections during erection
e. Prepare reports of inspections
4. Masonry Testing
a. Sample mortar/grout and mold test cubes/cylinders
b. Cure test specimens and perform compressive strength tests
c. Prepare reports of tests
5. Miscellaneous Testing
a. Perform observations of through firestop penetrations
b. Perform observations of wood trusses
c. Prepare reports of tests
6. Engineering Supervision
a. Provide management services, consulting services, and attend project meetings
b. Monitor the project budget and scope of work; inform City of estimated increases/decreases in
fees
c. Coordinate scheduling with the Contractor.
1.1.2.6 The financial parameters are as follows:
The estimated fee for the projected cost for Kleinfelder's consulting services shall be as follows:
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Service Description
SOILS TESTING
Laboratory Testing
Atterberg Limits
Sieve Analysis, Fine Inc Wash C136
Moisture -Density Analysis, Astm D698
Field Testing
Soil Services
Nuclear Density Tests (3 Min)
Vehicle Charge (Per Trip)
PIER OBSERVATION
Laboratory Testing
Concrete Comp Test C-39
Field Testing
Foundation/Excav Obsery
Concrete Services
Rebar Placement Obsery
Vehicle Charge (Per Trip)
CONCRETE TESTING
Laboratory Testing
Concrete Comp Test C-39
Field Testing
Concrete Services
Rebar Placement Obsery
Sample Pick-Up/Delivery
Vehicle Charge (Per Trip)
STRUCTURAL STEEL
Welding/Visual Obsery - Fld
Ultrasonic Testing
Ultrasonic Testing Equipment (Per Day)
Vehicle Charge (Per Trip)
MASONRY TESTING
Laboratory Testing
Mortar Strength, C-109
Grout Strength, C-942
Field Testing
Masonry Services
Vehicle Charge (Per Trip)
ENGINEERING SUPERVISION
Project Management
Vehicle Charge (Per Trip)
TOTAL ESTIMATE
Estimated Estimated
Quantity Unit Price Total Amount
2 each
2 each
2 each
22 hours
33 each
11 trips
40 each
70 hours
20 hours
10 hours
10 trips
$ 65.00 $ 130.00
$ 60.00 $ 120.00
$ 200.00 $ 400.00
$ 40.00 $ 880.00
$ 20.00 $ 660.00
$ 20.00 $ 220.00
Subtotal $ 2,410.00
$ 16.00 $ 640.00
$ 40.00 $ 2,800.00
$ 40.00 $ 800.00
$ 40.00 $ 400.00
$ 20.00 $ 200.00
Subtotal $ 4,840.00
100 each $ 16.00 $ 1,600.00
50 hours$ 40.00 $ 2,000.00
25 hours $ 40.00 $ 1,000.00
10 hours $ 40.00 $ 400.00
25 trips $ 20.00 $ 500.00
Subtotal $ 5,500.00
20 hours
24 hours
06 days
12 trips
09 each
09 each
06 hours
03 trips
17 hours
03 trips
$ 55.00 $ 1,100.00
$ 55.00 $ 1,320.00
$ 105.00 $ 630.00
$ 20.00 $ 240.00
Subtotal $ 3,290.00
$ 16.00
$ 16.00
$ 144.00
$ 144.00
$ 40.00 $ 240.00
$ 20.00 $ 60.00
Subtotal $ 588.00
$ 105.00 $ 1,785.00
$ 20.00 $ 60.00
Subtotal $ 1,845.00
$18,473.00
Kleinfelder made the following assumptions in generating the quantities listed above:
(1) Soils Testing: Kleinfelder assumed that two (2) soils will be submitted for use as backfill, with one assumed to be
subgrade and one select fill. Kleinfelder assumed that Contractor will need to remove some of the existing walkways in
order to install the new foundations, and that Kleinfelder would need to visit the site eleven (11) times in order to
perform compaction testing and soil sampling services.
(2) Pier Observation: Kleinfelder assumed that Contractor will elect to use drilled piers to support the bridge structure.
Kleinfelder assumed that Contractor's schedule may be adversely affected due to possible access problems when drilling
the piers in the existing structure. Therefore, Kleinfelder budgeted ten (10) days at ten (10) hours per day to monitor and
test the pier drilling activities.
(3) Concrete Testing: Kleinfelder assumed that Contractor will elect to form the "Home Run Seating" structure with
multiple concrete placements. Kleinfelder does not anticipate any concrete placement to be over one hundred (100)
cubic yards of concrete in volume, and most placements are assumed to be less than fifty (50) cubic yards. Kleinfelder
estimated approximately twenty (20) concrete placements required for the new Bridge and Private Suites, the Home Run
Seating, and the new entranceway. Therefore, Kleinfelder allowed for twenty-five (25) sets of four (4) cylinders to test
the concrete placement, and twenty (20) visits. Each visit is estimated to be approximately three (3) to four (4) hours
per. A total of five (5) visits have been estimated for situations when Kleinfelder must visit the site for the sole purpose
of transporting cylinders to its laboratory.
(4) Structural Steel: Kleinfelder assumed six (6) half-day trips to test the full penetration welds on the project.
Additionally, Kleinfelder assumed approximately six (6) trips at three (3) hours per trip to visually observe completed
welding and bolting on the project. Two (2) hours have been estimated for Kleinfelder's Structural Steel Technicians to
review the project plans, specifications, and verify welder certifications.
(5) Masonry Testing: Due to the limited amount of masonry on the project, Kleinfelder assumed two (2) visits to test
the masonry in the Home Run Section, and one (1) additional visit to test the masonry by the new entranceway.
(6) Engineering Supervision: Kleinfelder estimated seventeen (17) hours for its materials engineers to monitor work on
the project, consult with its technicians, schedule site visits, and attend any necessary meetings during construction.
Additionally, three (3) trips have been estimated to visit the project site.
Miscellaneous Notations:
Unit rates as shown above include report reproduction, distribution, and miscellaneous administrative support for the
services listed.
Field services are charged portal to portal from Kleinfelder's offices.
Services directed by City to be performed outside the hours of 7:00 am to 5:00 pm or over eight (8) hours per day on
weekdays and anytime on weekends or official federal holidays shall not be billed at an overtime rate, but instead shall
be billed at standard rates.
1.1.2.7 The time parameters are:
(Iden fy if -appropriate, milestone dates, durations or fast track scheduling.)
Until completion of services, but not longer than the Project's Substantial Completion Date of April 1, 2004.
1.1.2.8 The proposed procurement or delivery method for the Project is:
(Ident fy method such as competitive bid, negotiated contract, or construction management.)
Consulting services herein are engaged by this negotiated Agreement.
1.1.2.9 Other parameters are:
(Idents special characteristics or needs of the Project such as energy, environmental or historic preservation requirements.)
Unknown at this time.
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1.1.3 PROJECT TEAM
1.1.3.1 City's Designated Representative is:
(List name, address and other information)
Larry Madsen
Liaison Construction Manager
2008 Enterprise Drive
Round Rock, Texas 78664
Telephone: 512-218-5552
Facsimile: 512-218-5563
Email: larrym@round-rock.tx.us
1.1.3.2 The persons or entity, in addition to City's Designated Representative, who is required to review Kleinfelder's
submittals to City are:
(List name, address and other information.)
James R. Nuse, P.E.
City Manager
221 East Main Street
Round Rock, Texas 78664
1.1.3.3 City's other consultants and contractors are:
(List discipline and, if known, identify them by name and address.)
Not named at this time.
1.1.3.4 Kleinfelder's Designated Representative is:
(List name, address and other information)
Robert S. Wright, Jr., P.E.
Senior Materials Engineer
3601 Manor Road
Austin, Texas 78723
Telephone: 512- 926-6650
Facsimile: 512-926-3312
1.1.3.5 The consultants retained at Kleinfelder's expense are:
(List discipline and, if known, ident fy them by name and address)
Not named at this time.
1.1.4 Other important initial information is:
It is expressly understood and agreed by and between the parties hereto that any alteration in schedule,
compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such
Supplemental Agreement to this Agreement must be duly authorized by City Council resolution.
ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES
1.2.1 City and Kleinfelder shall cooperate with one another to fulfill their respective obligations under this
Agreement. Both parties shall endeavor to maintain good working relationships.
1.2.2 OWNER'S RESPONSIBILITIES
1.2.2.1 Unless otherwise provided under this Agreement, City shall provide full information in a timely manner
regarding requirements for and limitations on the Project. City shall promptly provide Kleinfelder with substantial new
information, including changes in plans.
1.2.2.2 City shall provide Kleinfelder with all information regarding existing conditions, including the existence of
hazardous materials, and proposed uses of the Project site; and shall correctly designate the location of all property lines
of the Project site and all known subsurface installations such as pipes, tanks, cables, electrical lines, telephone lines and
utilities within the Project site.
1.2.2.3 City shall bear the responsibility for notifying all prospective purchasers or other appropriate third parties,
including but not limited to all appropriate municipal, regional, state or federal agencies, of the existence of any known
hazardous materials located in or around the Project site.
1.2.2.4 City shall furnish to Kleinfelder, within fifteen (15) days after receipt of a written request, information
necessary and relevant for Kleinfelder to evaluate, give notice of, or enforce rights. Such information shall include a
correct statement of the record legal title to the property on which the Project is located, the name of the Project lender,
and City's interest therein.
1.2.2.5 City shall establish and periodically update the budget for the Project, including that portion allocated for
the Cost of the Work, City's other costs, and reasonable contingencies related to all costs.
1.2.2.6 City's Designated Representative identified in Section 1.1.3.1 shall be authorized to act on City's behalf
with respect to the Project. City or City's Designated Representative shall render decisions in a timely manner pertaining
to documents submitted by Kleinfelder in order to avoid unreasonable delay in the orderly and sequential progress of
Kleinfelder's services.
1.2.2.7 Unless otherwise provided in this Agreement, and if requested in writing, City shall furnish or pay for tests,
inspections and reports required by law.
1.2.2.8 City shall furnish all legal, insurance and accounting services, including auditing services, that may be
reasonably necessary at any time for the Project to meet City's needs and interests.
1.2.2.9 Each party shall provide prompt written notice to the other if either becomes aware of any fault or defect in
the Project, including any errors, omissions or inconsistencies.
1.2.2.10 City shall notify Kleinfelder at least twenty-four (24) hours in advance of any necessary tests and
observations. If City assigns this responsibility to a contractor, subcontractor, or other third party, or if City fails to
provide the proper notice, then and in that event Kleinfelder shall not be held responsible for damages resulting from
improper notice.
1.2.2.11 As all samples are and shall remain the property of City, City shall promptly and at its own cost remove
and lawfully dispose of samples, cuttings and hazardous materials unless otherwise agreed in writing. Kleinfelder shall
preserve samples obtained for the Project for not longer than thirty (30) days after the issuance of any document that
includes the data obtained from such samples.
1.2.2.12 City acknowledges that data stored on electronic media might deteriorate undetected or be modified
without Kleinfelder's knowledge. Therefore, City agrees that it will accept responsibility for the completeness,
correctness, or readability of the electronic media after an acceptance period of thirty (30) days after delivery of the
electronic files.
1.2.2.13 City shall cooperate with reasonable requests by Kleinfelder that are related to the performance of the
services called for in this Agreement, including but not limited to obtaining permission at City's cost to allow Kleinfelder
access to the Project site.
1.23 KLEINFELDER'S RESPONSIBILITIES
1.2.3.1 The services performed by Kleinfelder shall be as enumerated in Article 1.4 and as enumerated elsewhere
herein, in attached and accompanying documents, in exhibits, in supplemental documents, and in related documents.
1.2.3.2 Kleinfelder's services shall be performed as expeditiously as is consistent with professional skill and care
and the orderly progress of the Project, and Kleinfelder shall perform such services in a manner consistent with the
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standard of care and skill ordinarily exercised by members of the same profession practicing in the same or similar
locality under similar circumstances at the time the services are performed.
1.2.3.3 Kleinfelder shall submit for City's approval a schedule for the performance of services which initially shall
be consistent with the time periods established in this Agreement and which may be adjusted, if necessary and approved
City, as the Project proceeds. This schedule shall include allowances for periods of time required for City's review, and
for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule
approved by City shall not, except for reasonable cause, be exceeded by Kleinfelder or City.
1.2.3.4 Kleinfelder, through its Designated Representative identified in Section 1.1.3.4, shall be the person
authorized to act with respect to the Project.
1.2.3.5 Kleinfelder shall maintain the confidentiality of information specifically designated as confidential by City,
unless withholding such information would violate the law, create the risk of significant harm to the public or prevent
Kleinfelder from establishing a claim or defense in an adjudicatory proceeding.
1.2.3.6 Except with City's knowledge and consent, Kleinfelder shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise Kleinfelder's professional judgment
with respect to this Project.
1.2.3.7 Kleinfelder shall review laws, codes, and regulations applicable to his services. Kleinfelder shall respond
in the Project to requirements imposed by governmental authorities having jurisdiction over the Project.
1.2.3.8 Kleinfelder shall be entitled to reasonably rely on the accuracy and completeness of services and
information furnished by City. Each party shall provide prompt written notice to the other if either becomes aware of
any errors, omissions or inconsistencies in such services or information.
1.2.3.9 Kleinfelder's construction observation services shall be limited to observation of construction operations to
provide City with an understanding of the general nature, progress and quality of the work. Unless otherwise agreed in
writing, Kleinfelder shall not be responsible for continuous or exhaustive inspection of the work. In no event shall
Kleinfelder be responsible for the means and methods of construction or for the safety procedures employed by City's
Contractor.
1.2.3.10 Kleinfelder shall sign certifications only if it approves the form prior to the commencement of services,
provided such certification is included in Kleinfelder's scope of services, and provided such certification is limited to a
statement of professional opinion and does not constitute a warranty or guarantee, express or implied.
1.2.3.11 If reasonable precautions would likely be inadequate to prevent foreseeable bodily injury or death resulting
from a hazardous material or substance encountered on the Project site, Kleinfelder shall, upon recognizing the
condition, immediately stop work m the affected area and report the condition to City.
1.2.3.12 Kleinfelder's reports, boring logs, maps, field data, drawings, test results and other like work product are
part of its professional services and do not constitute goods or products. Kleinfelder reserves the right to copyright such
work; however, such copyright is not intended to limit City's use of the services pursuant to this Agreement.
ARTICLE 1.3 TERMS AND CONDITIONS
1.3.1 COST OF THE WORK
1.3.1.1 The Cost of the Work shall be the total cost or, to the extent the Project is not completed, the estimated cost
to City of all elements of the Project designed or specified by Kleinfelder. The Cost of the Work shall be as delineated
herein in Section 1.1.2.6.
1.3.2 INSTRUMENTS OF SERVICE
1.3.2.1 Drawings, reports, specifications and other documents, including those in electronic form, prepared by
Kleinfelder are for use solely with respect to this Project.
1.3.2.2 Upon execution of this Agreement, Kleinfelder grants to City permission to reproduce its Instruments of
Service for purposes of constructing, using and maintaining the Project, provided that City shall comply with all
obligations, including prompt payment of all sums when due, under this Agreement. If and upon the date Kleinfelder is
adjudged in default of this Agreement, City is permitted to authorize other similarly credentialed persons to reproduce
and, where permitted by law, to make changes, corrections or additions to the Instruments of Service for the purposes of
completing, using and maintaining the Project.
1.3.23 City shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to
another party without the prior written agreement of Kleinfelder. Submission or distribution of Instruments of Service
to meet official regulatory requirements or for similar purposes in connection with the Project is permitted. Any
unauthorized use of the Instruments of Service shall be at City's sole risk and without liability to Kleinfelder.
1.3.3 CHANGE IN SERVICES
1.3.3.1 Change in Services of Kleinfelder may be accomplished after execution of this Agreement, without
invalidating the Agreement, if mutually agreed in writing. It is expressly understood and agreed by and between the
parties hereto that any alteration in schedule, compensation and Change in Services shall be effected only by
Supplemental Agreement hereto. Any such Supplemental Agreement to this contract must be duly authorized by City
Council resolution.
1.3.4 MEDIATION
1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to
mediation. If such matter relates to or is the subject of a lien arising out of Kleinfelder's services, Kleinfelder may
proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the
matter by mediation.
1.3.4.2 City and Kleinfelder shall endeavor to resolve claims, disputes and other matters in question between them by
mediation. Request for mediation shall be filed in writing with the other party to this Agreement, and mediation shall
proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of sixty (60)
days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.
13.43 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place
where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be
enforceable as settlement agreements in any court having jurisdiction thereof.
13.5 ARBITRATION
13.5.1 City and Kleinfelder hereby expressly agree that no claims or disputes between City and Kleinfelder arising out
of or relating to this Agreement or a breach hereof shall be decided by any arbitration proceeding, including, without
limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-14) or any applicable state arbitration
statute, except that in the event that City is subject to an arbitration proceeding related to the Project, Kleinfelder
consents to be joined in the arbitration proceeding if Kleinfelder's presence is required or requested by City for complete
relief to be accorded in the arbitration proceeding.
13.6 CLAIMS FOR CONSEQUENTIAL DAMAGES
13.6.1 Kleinfelder and City waive consequential damages for claims, disputes or other matters in question arising out
of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due
to either party's termination in accordance with Section 1.3.8.
13.7 MISCELLANEOUS PROVISIONS
13.7.1 This Agreement shall be governed by the laws of the state of Texas, and venue shall lie in Williamson County,
Texas.
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13.7.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed
to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of
Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the
final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such
statutes of limitations commence to nm any later than the date when Kleinfelder's services are substantially completed.
13.73 To the extent damages are covered by property insurance during construction, City and Kleinfelder waive
all rights against each other and against the contractors, consultants, agents and employees of the other for damages,
except such rights as they may have to the proceeds of insurance as delineated between City and Kleinfelder.
13.7.4 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in
favor of a third party against either City or Kleinfelder.
1.3.7.5 City and Kleinfelder, respectively, bind themselves, their successors, assigns and legal representatives to
the other party to this Agreement and to the successors, assigns and legal representatives of such other party with respect
to all covenants of this Agreement. Neither City nor Kleinfelder shall assign this Agreement without the written consent
of the other, except that City may assign this Agreement to an institutional lender providing financing for the Project. In
such event, the lender shall assume City's rights and obligations under this Agreement. Kleinfelder shall execute all
consents reasonably required to facilitate such assignment.
1.3.7.6 Kleinfelder shall comply with all applicable federal and state laws, the Charter and ordinances of the City
of Round Rock, and with all applicable rules and regulations promulgated by all local, state and national boards, bureaus
and agencies. Kleinfelder shall further obtain all permits and licenses required in the performance of the consulting
services contracted for herein.
13.7.7 Kleinfelder will pay all taxes, if any, required by law arising by virtue of the 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.
13.7.8 Kleinfelder covenants and represents that he 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 Project.
1.3.7.9 Kleinfelder understands and agrees that time is of the essence and that any failure of Kleinfelder to
complete the services for each portion of this Agreement within the agreed schedule will constitute a material breach of
this Agreement.
13.7.10 Neither City nor Kleinfelder shall be deemed in violation of this Agreement if prevented from performing
any obligations hereunder by reasons for which it is not responsible or circumstances beyond its control. However,
notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to
mitigate its effects.
13.8 TERMINATION OR SUSPENSION
13.8.1 If City fails to make payments to Kleinfelder in substantial compliance with this Agreement, such failure may
be considered substantial nonperformance and cause for suspension of performance of services under this Agreement.
If Kleinfelder elects to suspend services, prior to suspension of services, Kleinfelder shall give fifteen (15) days' written
notice to City. In the event of a suspension of services, Kleinfelder shall have no liability to City for delay or damage
caused City because of such suspension of services. Before resuming services, Kleinfelder shall be paid all non -
disputed sums due prior to suspension. Kleinfelder's fees for the remaining services and the time schedules shall be
equitably adjusted.
13.8.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Kleinfelder that
City may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the
convenience of City, upon fifteen (15) days' written notice to Kleinfelder, with the understanding that immediately
upon receipt of said notice all work and labor being performed under this Agreement shall cease. Kleinfelder shall
invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this
Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated
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profits. All plans, field surveys, maps, cross sections and other data, designs and work related to the Project which
become the property of City upon termination of this Agreement shall be promptly delivered to City in a reasonably
organized form without restriction on future use. Should City subsequently contract with another person for
continuation of services on the Project, Kleinfelder shall cooperate in providing information.
13.83 Nothing contained in Section 1.3.8.2 shall require City to pay for any work which is unsatisfactory as
determined by City's representative or which is not submitted in compliance with the terms of this Agreement. City
shall not be required to make any payments to Kleinfelder when Kleinfelder is in default under this Agreement, nor
shall this section constitute a waiver of any right, at law or at equity, which City may have if Kleinfelder is in default,
including the right to bring legal action for damages or to force specific performance of this Agreement.
13.9 PAYMENTS TO KLEINFELDER
1.3.9.1 Payments on account of services rendered shall be made monthly upon presentation of Kleinfelder's invoices.
No deductions shall be made from Kleinfelder's compensation on account of penalty, liquidated damages or other sums
withheld from payments, or on account of the cost of Changes in the Work, other than those for which Kleinfelder has
been adjudged to be liable.
ARTICLE 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS
1.4.1 Enumeration of Parts of the Agreement. This Agreement represents the entire and integrated agreement
between City and Kleinfelder and supersedes all prior negotiations, representations or agreements, either written or oral.
This Agreement may be amended only by written instrument signed by both City and Kleinfelder.
1.4.2 Special Terms and Conditions.
Special terms and conditions that modify this Agreement are as follows:
None
ARTICLE 1.5 COMPENSATION
1.5.1 For Kleinfelder's services as described herein, compensation shall be computed as follows:
In accordance with Section 1.1.2.6 herein.
1.5.2 If the services of Kleinfelder are changed as described in Section 1.3.3.1, the compensation may be adjusted.
Such adjustment shall be calculated in an equitable manner.
(Insert basis of compensation, including rates and multiples of Direct Personnel Expense for Principals and employees, and idents Principals and
classes employees, if required. Idents specific services to which particular methods of compensation apply)
1.53 Payments are due and payable thirty (30) days from the date of Kleinfelder's invoice, or not later than the time
period required under the Texas Prompt Payment Act, whichever is later. Non -disputed amounts unpaid sixty (60) days
after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing
from time to time at the principal place of business of Kleinfelder.
(Insert rate of interest agreed upon.)
One and one-half percent (1 1/2%) per month
(Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the
Owner's and Architect's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal
advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.)
ARTICLE 1.6 INDEMNIFICATION
1.6.1 Indemnification (Damage Claims). Kleinfelder agrees to defend, indemnify and hold City, its officers, agents
and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury
(including death), property damage or other harm for which recovery of damages is sought, suffered by any person or
10
persons, that may arise out of or be occasioned by Kleinfelder's breach of any of the terms or provisions of this
Agreement, or by any negligent act or omission of Kleinfelder in the performance of this Agreement; except that the
indemnity provided for in this section shall not apply to any liability resulting from the sole negligence of City, its
officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both
Kleinfelder and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the
laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law
and without waiving any defenses of the parties under Texas law. The provisions of this section are solely for the benefit
of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
ARTICLE 1.7 INSURANCE
1.7.1 Insurance. Kleinfelder, at its sole cost, shall purchase and maintain during the term and entire duration of
this Agreement minimum insurance coverages in the types and amounts as follow:
A. Comprehensive General Liability Insurance with minimum Bodily Injury limits of $300,000 for each
occurrence including like coverage for acts and omissions of subcontractors and contractual liability coverage;
B. Property Damage Insurance with minimum limits of $50,000 for each occurrence including like coverage
for acts and omissions of subcontractors and contractual liability coverage.
C. Automobile Liability Insurance for all owned, non -owned, and hired vehicles with minimum limits for
Bodily Injury of $100,000 for each person and $300,000 for each occurrence, and Property Damage minimum limits of
$50,000 for each occurrence. Kleinfelder shall require subcontractors to provide Automobile Liability Insurance with
the same minimum limits.
1.7.2 Insurance Requirements.
(1) All insurance shall be obtained by Kleinfelder from a company authorized to do insurance business in
Texas and otherwise acceptable to City.
(2) Kleinfelder shall not commence work at any site under this Agreement until it has obtained all required
insurance and until such insurance has been approved by City. Kleinfelder shall not allow any subcontractors to
commence work until all insurance required has been obtained and approved. Approval of the insurance by City shall
not relieve or decrease the liability of Kleinfelder hereunder.
1.7.3 Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by
endorsement to the policy:
(1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -renewal or any
material change in coverage, a notice thereof shall be given to City by certified mail to:
James R. Nuse, P.E.
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Kleinfelder shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation,
non -renewal, or material change in coverage it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums
or assessments for any deductibles which all are at the sole responsibility and risk of Kleinfelder.
(3) The terms "City" or "City of Round Rock" shall include all authorities, Boards, Commissions,
Departments, and officers of City and the individual members, employees and agents thereof in their official capacities,
and/or while acting on behalf of the City of Round Rock.
11
(4) 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.
1.7.4 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Kleinfelder shall
be borne solely by Kleinfelder, with certificates of insurance evidencing such minimum coverage in force to be filed
with City.
IN WITNESS WHEREOF, the City of Round Rock has caused this Agreement to be signed in its corporate name
by its Mayor, duly authorized to execute the same in its behalf by Resolution No. approved by the
City Council on , and by the duly authorized representative of Kleinfelder, with both parties binding
themselves, their successors and assigns and legal representatives for the faithful and full performance of the terms and
provisions of this Agreement.
OWNER: CONSULTANT:
CITY OF ROUND ROCK, TEXAS
By:
Nyle Maxwell, Mayor
ATTEST:
Christine R. Martinez, City Secretary
12
KLEINFELDER
By:
J
Authorized Representative
CERTIFICATE OF LIABILITY INSURANCE
PRODUCER
Marsh Risk & Insurance Services
P.O. Box 193880
San Francisco, CA 94119-3880
Date: 7/30/03
COMPANIES AFFORDING COVERAGE
A National Union Fire Ins. Co.
B American Guarantee and Liability Ins. Co.
INSURED C
Kleinfelder, Inc.
5015 Shoreham Place
San Diego CA 92122
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.
American Home Assurance Company
D Zurich American Insurance Co.
CO TYPE OF INSURANCE POLICY EFFECTIVE EXPIRATION
LTR NUMBER DATE DATE
A
A
GENERAL LIABILITY
LIMITS
AUTOMOBILE LIABILITY
EXCESS LIABILITY
B Umbrella
C
GL933-2548 3/31/03 3/31/04
GENERAL AGGREGATE $
PRODUCTS-COMP/OP AGG. $
PERSONAL & ADV. INJURY $
EACH OCCURRENCE $
FIRE DAMAGE (Any one fire) $
MED. EXPENSE (Any one person) $
2,000,000
2,000,000
1,000,000
1,000,000
250,000
5,000
8261355 3/31/03
3/31/04
COMBINED SINGLE LIMIT
BODILY INJURY (Per person)
BODILY INJURY (Per accident)
PROPERTY DAMAGE
1,000,000
3/31/03 3/31/04
AUC -9303286-01
WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
PROFESSIONAL LIABILITY
EACH OCCURRENCE
AGGREGATE
4,000,000
4,000,000
WC7165638 4/1/03 4/1/04
STATUTORY LIMITS
EACH ACCIDENT
DISEASE - POLICY LIMIT
DISEASE - EACH EMPLOYEE
$ Statutory
$ 1,000,000
$ 1,000,000
$ 1,000,000
D EOC 379527000 3/31/03 3/31/04
DESCRIPTION OF OPERATIONS/[DCATIONSNEHICLES/SPECIAL ITEMS/EXCEPTIONS
Re: Dell Diamond Renovation
Each Claim
Aggregate
$ 500,000
$ 500,000
The City of Round Rock is named as additional insured with respect to all policies except Workers' Compensation and Employers' Liability
and Professional Liability. 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:
CC L
City Manager
City of Round Rock
221 E. Main Street
Round Rock, Texas 78664
Re/6 r/iC WaltS
RECD AUG 0 4 2003
insurance certificate city of round rock.doc
Marsh Risk & Insurance Svcs.
SIGNATURE OF AUTHORIZED RBER28821ffikflafficBroker
Typed Name: Rri an J_ Connolly •
Title: Assistant Vice President
EXHIBIT -
Revised 10/2002
. , DEL DI MOND
�/.
\.
N
W-#£ DELL DIAMOND
S
DATE: August 22, 2003
SUBJECT: City Council Meeting - August 28, 2003
ITEM: 10.F.1. Consider a resolution authorizing the Mayor to execute an
Agreement for consulting Services with Kleinfelder for
Construction Materials and Inspection and Testing Services
for the Improvements to the Dell Diamond/United Heritage
Facility.
Resource: Tom Word, Chief of Public Works Operations
Larry Madsen, Construction Manager
History: Kleinfelder responded to a request for qualifications for the testing
of soils, steel masonry and concrete for structural engineering at the
Dell Diamond/United Heritage Center Facility. Staff then requested
a proposal for the work and inspections that were required.
Funding:
Cost: $18,473.00
Source of funds: Convention Center Expansion Funds
Outside Resources: Kleinfelder
Impact/Benefit:
Provide professional testing services for different phases
of construction at the Dell Diamond/United Heritage
Center Facility.
Public Comment: N/A
Sponsor: N/A
EXECUTED
DOCUMENT
FOLLOWS
Agreement for Consulting Services with Kleinfelder for
Construction Materials and Inspection and Testing Services for
"Improvements to the Dell Diamond/United Heritage Facility"
AGREEMENT made as of the 1 nI./-6I&iff (ag ) day of the month of A-kI iJ6-1"
Thousand Three.
(In words, indicate day, month and year.)
BETWEEN the City of Round Rock, Texas, identified herein as "City":
(Name, address and other information.)
City of Round Rock
221 East Main Street
Round Rock, Williamson County, Texas 78664
and Consultant, identified herein as "Kleinfelder":
(Name, address and other information)
Kleinfelder
3601 Manor Road
Austin, Texas 78723
For the following Project:
(Include detailed description of Project)
in the year Two
Providing consulting/technical services for the City of Round Rock Project referred to as "Improvements to Dell
Diamond/United Heritage Facility," said services to include sampling and testing of construction materials, field
observations, and professional consultations.
City and Kleinfelder agree as follows:
ARTICLE 1.1 INITIAL INFORMATION
1.1.1 This Agreement is based on the following information and assumptions.
(Note the disposition for the following items by inserting the requested information or a statement such as "not applicable, " "unknown at time of
execution" or "to be determined later by mutual agreement. ')
1.1.2 PROJECT PARAMETERS
1.1.2.1 The objective or use is:
(Idents or describe, if appropriate, proposed use or goals.)
Objectives include, but are not limited to, obtaining consulting services from Kleinfelder including providing
construction materials inspection and testing on the site of the Dell Diamond/United Heritage Facility.
1.1.2.2 The physical parameters are:
(Idents or describe, if appropriate, size, location, dimensions, or other pertinent information, such as geotechnical reports about the site.)
The site of the Dell Diamond/United Heritage Facility in Round Rock, Williamson County, Texas.
1.1.2.3 City's Program is:
(Identify documentation or state the manner in which the program will be developed.)
1.1.2.4 The legal parameters are:
(Identify pertinent legal information, including, if appropriate, land surveys and legal descriptions and restrictions of the site.)
/jkg
R -O3 -O8-c8 -1DFJ
1.1.2.5 The Scope of Services is as follows:
1. Soils Testing
a. Sample subgrade soils, fill materials, and base courses and deliver to Kleinfelder's laboratory for
reference tests as listed below:
Atterberg Limits
Sieve Analysis
-- Moisture Density Curve
b. Perform visual inspection of pier excavations and load-bearing soils prior to placement of concrete
c. Conduct field moisture and density tests using a nuclear density device
d. Prepare reports of tests
2. Concrete Testing
a. Review the concrete mix design for compliance with the project plans and specifications
b. Sample concrete and test for the following:
Slump
Air Content (if requested)
-- Temperature
c. Sample concrete and prepare test cylinders
d. Cure test cylinders and conduct compressive strength tests
e. Observe final placement of reinforcing steel
f. Prepare report of tests
3. Structural Steel Inspections
a. Review the shop drawings to ensure that they have been approved by the structural engineer
before fabrication
b. Review welder certifications of any welder performing structural welds on the project
c. Confirm placement and spacing of anchor bolts
d. Perform random bolting/welding inspections during erection
e. Prepare reports of inspections
4. Masonry Testing
a. Sample mortar/grout and mold test cubes/cylinders
b. Cure test specimens and perform compressive strength tests
c. Prepare reports of tests
5. Miscellaneous Testing
a. Perform observations of through firestop penetrations
b. Perform observations of wood trusses
c. Prepare reports of tests
6. Engineering Supervision
a. Provide management services, consulting services, and attend project meetings
b. Monitor the project budget and scope of work; inform City of estimated increases/decreases in
fees
c. Coordinate scheduling with the Contractor.
1.1.2.6 The financial parameters are as follows:
The estimated fee for the projected cost for Kleinfelder's consulting services shall be as follows:
2
Service Description
SOILS TESTING
Laboratory Testing
Atterberg Limits
Sieve Analysis, Fine Inc Wash C136
Moisture -Density Analysis, Astm D698
Field Testing
Soil Services
Nuclear Density Tests (3 Min)
Vehicle Charge (Per Trip)
PIER OBSERVATION
Laboratory Testing
Concrete Comp Test C-39
Field Testing
Foundation/Excav Obsery
Concrete Services
Rebar Placement Obsery
Vehicle Charge (Per Trip)
CONCRETE TESTING
Laboratory Testing
Concrete Comp Test C-39
Field Testing
Concrete Services
Rebar Placement Obsery
Sample Pick-Up/Delivery
Vehicle Charge (Per Trip)
STRUCTURAL STEEL
WeldingNisual Obsery - Fld
Ultrasonic Testing
Ultrasonic Testing Equipment (Per Day)
Vehicle Charge (Per Trip)
MASONRY TESTING
Laboratory Testing
Mortar Strength, C-109
Grout Strength, C-942
Field Testing
Masonry Services
Vehicle Charge (Per Trip)
ENGINEERING SUPERVISION
Project Management
Vehicle Charge (Per Trip)
TOTAL ESTIMATE
Estimated Estimated
Quantity Unit Price Total Amount
2 each
2 each
2 each
22 hours
33 each
11 trips
40 each
70 hours
20 hours
10 hours
10 trips
100 each
50 hours
25 hours
10 hours
25 trips
20 hours
24 hours
06 days
12 trips
09 each
09 each
06 hours
03 trips
17 hours
03 trips
$ 65.00 $ 130.00
$ 60.00 $ 120.00
$ 200.00 $ 400.00
$ 40.00 $ 880.00
$ 20.00 $ 660.00
$ 20.00 $ 220.00
Subtotal $ 2,410.00
$ 16.00 $ 640.00
$ 40.00 $ 2,800.00
$ 40.00 $ 800.00
$ 40.00 $ 400.00
$ 20.00 $ 200.00
Subtotal $ 4,840.00
$ 16.00 $ 1,600.00
$ 40.00 $ 2,000.00
$ 40.00 $ 1,000.00
$ 40.00 $ 400.00
$ 20.00 $ 500.00
Subtotal $ 5,500.00
$ 55.00 $ 1,100.00
$ 55.00 $ 1,320.00
$ 105.00 $ 630.00
$ 20.00 $ 240.00
Subtotal $ 3,290.00
$ 16.00
$ 16.00
$ 144.00
$ 144.00
$ 40.00 $ 240.00
$ 20.00 $ 60.00
Subtotal $ 588.00
$ 105.00 $ 1,785.00
$ 20.00 $ 60.00
Subtotal $ 1,845.00
$18,473.00
Kleinfelder made the following assumptions in generating the quantities listed above:
(1) Soils Testing: Kleinfelder assumed that two (2) soils will be submitted for use as backfill, with one assumed to be
subgrade and one select fill. Kleinfelder assumed that Contractor will need to remove some of the existing walkways in
order to install the new foundations, and that Kleinfelder would need to visit the site eleven (11) times in order to
perform compaction testing and soil sampling services.
(2) Pier Observation: Kleinfelder assumed that Contractor will elect to use drilled piers to support the bridge structure.
Kleinfelder assumed that Contractor's schedule may be adversely affected due to possible access problems when drilling
the piers in the existing structure. Therefore, Kleinfelder budgeted ten (10) days at ten (10) hours per day to monitor and
test the pier drilling activities.
(3) Concrete Testing: Kleinfelder assumed that Contractor will elect to form the "Home Run Seating" structure with
multiple concrete placements. Kleinfelder does not anticipate any concrete placement to be over one hundred (100)
cubic yards of concrete in volume, and most placements are assumed to be less than fifty (50) cubic yards. Kleinfelder
estimated approximately twenty (20) concrete placements required for the new Bridge and Private Suites, the Home Run
Seating, and the new entranceway. Therefore, Kleinfelder allowed for twenty-five (25) sets of four (4) cylinders to test
the concrete placement, and twenty (20) visits. Each visit is estimated to be approximately three (3) to four (4) hours
per. A total of five (5) visits have been estimated for situations when Kleinfelder must visit the site for the sole purpose
of transporting cylinders to its laboratory.
(4) Structural Steel: Kleinfelder assumed six (6) half-day trips to test the full penetration welds on the project.
Additionally, Kleinfelder assumed approximately six (6) trips at three (3) hours per trip to visually observe completed
welding and bolting on the project. Two (2) hours have been estimated for Kleinfelder's Structural Steel Technicians to
review the project plans, specifications, and verify welder certifications.
(5) Masonry Testing: Due to the limited amount of masonry on the project, Kleinfelder assumed two (2) visits to test
the masonry in the Home Run Section, and one (1) additional visit to test the masonry by the new entranceway.
(6) Engineering Supervision: Kleinfelder estimated seventeen (17) hours for its materials engineers to monitor work on
the project, consult with its technicians, schedule site visits, and attend any necessary meetings during construction.
Additionally, three (3) trips have been estimated to visit the project site.
Miscellaneous Notations:
Unit rates as shown above include report reproduction, distribution, and miscellaneous administrative support for the
services listed.
Field services are charged portal to portal from Kleinfelder's offices.
Services directed by City to be performed outside the hours of 7:00 am to 5:00 pm or over eight (8) hours per day on
weekdays and anytime on weekends or official federal holidays shall not be billed at an overtime rate, but instead shall
be billed at standard rates.
1.1.2.7 The time parameters are:
(Identify, if appropriate, milestone dates, durations or fast track scheduling.)
Until completion of services, but not longer than the Project's Substantial Completion Date of April 1, 2004.
1.1.2.8 The proposed procurement or delivery method for the Project is:
(Identify method such as competitive bid, negotiated contract, or construction management.)
Consulting services herein are engaged by this negotiated Agreement.
1.1.2.9 Other parameters are:
(Idents special characteristics or needs of the Project such as energy, environmental or historic preservation requirements.)
Unknown at this time.
4
1.1.3 PROJECT TEAM
1.1.3.1 City's Designated Representative is:
(List name, address and other information)
Larry Madsen
Liaison Construction Manager
2008 Enterprise Drive
Round Rock, Texas 78664
Telephone: 512-218-5552
Facsimile: 512-218-5563
Email: larrym@round-rock.tx.us
1.1.3.2 The persons or entity, in addition to City's Designated Representative, who is required to review Kleinfelder's
submittals to City are:
(List name, address and other information.)
James R. Nuse, P.E.
City Manager
221 East Main Street
Round Rock, Texas 78664
1.1.3.3 City's other consultants and contractors are:
(List discipline and, if known, idents them by name and address.)
Not named at this time.
1.1.3.4 Kleinfelder's Designated Representative is:
(List name, address and other information)
Robert S. Wright, Jr., P.E.
Senior Materials Engineer
3601 Manor Road
Austin, Texas 78723
Telephone: 512- 926-6650
Facsimile: 512-926-3312
1.1.3.5 The consultants retained at Kleinfelder's expense are:
(List discipline and, if known, identify them by name and address)
Not named at this time.
1.1.4 Other important initial information is:
It is expressly understood and agreed by and between the parties hereto that any alteration in schedule,
compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such
Supplemental Agreement to this Agreement must be duly authorized by City Council resolution.
ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES
1.2.1 City and Kleinfelder shall cooperate with one another to fulfill their respective obligations under this
Agreement. Both parties shall endeavor to maintain good working relationships.
1.2.2 OWNER'S RESPONSIBILITIES
1.2.2.1 Unless otherwise provided under this Agreement, City shall provide full information in a timely manner
regarding requirements for and limitations on the Project. City shall promptly provide Kleinfelder with substantial new
information, including changes in plans.
5
1.2.2.2 City shall provide Kleinfelder with all information regarding existing conditions, including the existence of
hazardous materials, and proposed uses of the Project site; and shall correctly designate the location of all property lines
of the Project site and all known subsurface installations such as pipes, tanks, cables, electrical lines, telephone lines and
utilities within the Project site.
1.2.2.3 City shall bear the responsibility for notifying all prospective purchasers or other appropriate third parties,
including but not limited to all appropriate municipal, regional, state or federal agencies, of the existence of any known
hazardous materials located in or around the Project site.
1.2.2.4 City shall furnish to Kleinfelder, within fifteen (15) days after receipt of a written request, information
necessary and relevant for Kleinfelder to evaluate, give notice of, or enforce rights. Such information shall include a
correct statement of the record legal title to the property on which the Project is located, the name of the Project lender,
and City's interest therein.
1.2.2.5 City shall establish and periodically update the budget for the Project, including that portion allocated for
the Cost of the Work, City's other costs, and reasonable contingencies related to all costs.
1.2.2.6 City's Designated Representative identified in Section 1.1.3.1 shall be authorized to act on City's behalf
with respect to the Project. City or City's Designated Representative shall render decisions in a timely manner pertaining
to documents submitted by Kleinfelder in order to avoid unreasonable delay in the orderly and sequential progress of
Kleinfelder's services.
1.2.2.7 Unless otherwise provided in this Agreement, and if requested in writing, City shall furnish or pay for tests,
inspections and reports required by law.
1.2.2.8 City shall furnish all legal, insurance and accounting services, including auditing services, that may be
reasonably necessary at any time for the Project to meet City's needs and interests.
1.2.2.9 Each party shall provide prompt written notice to the other if either becomes aware of any fault or defect in
the Project, including any errors, omissions or inconsistencies.
1.2.2.10 City shall notify Kleinfelder at least twenty-four (24) hours in advance of any necessary tests and
observations. If City assigns this responsibility to a contractor, subcontractor, or other third party, or if City fails to
provide the proper notice, then and in that event Kleinfelder shall not be held responsible for damages resulting from
improper notice.
1.2.2.11 As all samples are and shall remain the property of City, City shall promptly and at its own cost remove
and lawfully dispose of samples, cuttings and hazardous materials unless otherwise agreed in writing. Kleinfelder shall
preserve samples obtained for the Project for not longer than thirty (30) days after the issuance of any document that
includes the data obtained from such samples.
1.2.2.12 City acknowledges that data stored on electronic media might deteriorate undetected or be modified
without Kleinfelder's knowledge. Therefore, City agrees that it will accept responsibility for the completeness,
correctness, or readability of the electronic media after an acceptance period of thirty (30) days after delivery of the
electronic files.
1.2.2.13 City shall cooperate with reasonable requests by Kleinfelder that are related to the performance of the
services called for in this Agreement, including but not limited to obtaining permission at City's cost to allow Kleinfelder
access to the Project site.
1.23 KLEINFELDER'S RESPONSIBILITIES
1.2.3.1 The services performed by Kleinfelder shall be as enumerated in Article 1.4 and as enumerated elsewhere
herein, in attached and accompanying documents, in exhibits, in supplemental documents, and in related documents.
1.2.3.2 Kleinfelder's services shall be performed as expeditiously as is consistent with professional skill and care
and the orderly progress of the Project, and Kleinfelder shall perform such services in a manner consistent with the
6
standard of care and skill ordinarily exercised by members of the same profession practicing in the same or similar
locality under similar circumstances at the time the services are performed.
1.2.3.3 Kleinfelder shall submit for City's approval a schedule for the performance of services which initially shall
be consistent with the time periods established in this Agreement and which may be adjusted, if necessary and approved
City, as the Project proceeds. This schedule shall include allowances for periods of time required for City's review, and
for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule
approved by City shall not, except for reasonable cause, be exceeded by Kleinfelder or City.
1.2.3.4 Kleinfelder, through its Designated Representative identified in Section 1.1.3.4, shall be the person
authorized to act with respect to the Project.
1.2.3.5 Kleinfelder shall maintain the confidentiality of information specifically designated as confidential by City,
unless withholding such information would violate the law, create the risk of significant harm to the public or prevent
Kleinfelder from establishing a claim or defense in an adjudicatory proceeding.
1.2.3.6 Except with City's knowledge and consent, Kleinfelder shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise Kleinfelder's professional judgment
with respect to this Project.
1.2.3.7 Kleinfelder shall review laws, codes, and regulations applicable to his services. Kleinfelder shall respond
in the Project to requirements imposed by governmental authorities having jurisdiction over the Project.
1.2.3.8 Kleinfelder shall be entitled to reasonably rely on the accuracy and completeness of services and
information furnished by City. Each party shall provide prompt written notice to the other if either becomes aware of
any errors, omissions or inconsistencies in such services or information.
1.2.3.9 Kleinfelder's construction observation services shall be limited to observation of construction operations to
provide City with an understanding of the general nature, progress and quality of the work. Unless otherwise agreed in
writing, Kleinfelder shall not be responsible for continuous or exhaustive inspection of the work. In no event shall
Kleinfelder be responsible for the means and methods of construction or for the safety procedures employed by City's
Contractor.
1.2.3.10 Kleinfelder shall sign certifications only if it approves the form prior to the commencement of services,
provided such certification is included in Kleinfelder's scope of services, and provided such certification is limited to a
statement of professional opinion and does not constitute a warranty or guarantee, express or implied.
1.2.3.11 If reasonable precautions would likely be inadequate to prevent foreseeable bodily injury or death resulting
from a hazardous material or substance encountered on the Project site, Kleinfelder shall, upon recognizing the
condition, immediately stop work in the affected area and report the condition to City.
1.2.3.12 Kleinfelder's reports, boring logs, maps, field data, drawings, test results and other like work product are
part of its professional services and do not constitute goods or products. Kleinfelder reserves the right to copyright such
work; however, such copyright is not intended to limit City's use of the services pursuant to this Agreement.
ARTICLE 1.3 TERMS AND CONDITIONS
1.3.1 COST OF THE WORK
1.3.1.1 The Cost of the Work shall be the total cost or, to the extent the Project is not completed, the estimated cost
to City of all elements of the Project designed or specified by Kleinfelder. The Cost of the Work shall be as delineated
herein in Section 1.1.2.6.
1.3.2 INSTRUMENTS OF SERVICE
1.3.2.1 Drawings, reports, specifications and other documents, including those in electronic form, prepared by
Kleinfelder are for use solely with respect to this Project.
1.3.2.2 Upon execution of this Agreement, Kleinfelder grants to City permission to reproduce its Instruments of
Service for purposes of constructing, using and maintaining the Project, provided that City shall comply with all
obligations, including prompt payment of all sums when due, under this Agreement. If and upon the date Kleinfelder is
adjudged in default of this Agreement, City is permitted to authorize other similarly credentialed persons to reproduce
and, where permitted by law, to make changes, corrections or additions to the Instruments of Service for the purposes of
completing, using and maintaining the Project.
1.3.2.3 City shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to
another party without the prior written agreement of Kleinfelder. Submission or distribution of Instruments of Service
to meet official regulatory requirements or for similar purposes in connection with the Project is permitted. Any
unauthorized use of the Instruments of Service shall be at City's sole risk and without liability to Kleinfelder.
1.3.3 CHANGE IN SERVICES
1.3.3.1 Change in Services of Kleinfelder may be accomplished after execution of this Agreement, without
invalidating the Agreement, if mutually agreed in writing. It is expressly understood and agreed by and between the
parties hereto that any alteration m schedule, compensation and Change in Services shall be effected only by
Supplemental Agreement hereto. Any such Supplemental Agreement to this contract must be duly authorized by City
Council resolution.
1.3.4 MEDIATION
1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to
mediation. If such matter relates to or is the subject of a lien arising out of Kleinfelder's services, Kleinfelder may
proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the
matter by mediation.
1.3.4.2 City and Kleinfelder shall endeavor to resolve claims, disputes and other matters in question between them by
mediation. Request for mediation shall be filed in writing with the other party to this Agreement, and mediation shall
proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of sixty (60)
days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.
1.3.4.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place
where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be
enforceable as settlement agreements in any court having jurisdiction thereof.
1.3.5 ARBITRATION
1.3.5.1 City and Kleinfelder hereby expressly agree that no claims or disputes between City and Kleinfelder arising out
of or relating to this Agreement or a breach hereof shall be decided by any arbitration proceeding, including, without
limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-14) or any applicable state arbitration
statute, except that in the event that City is subject to an arbitration proceeding related to the Project, Kleinfelder
consents to be joined in the arbitration proceeding if Kleinfelder's presence is required or requested by City for complete
relief to be accorded in the arbitration proceeding.
1.3.6 CLAIMS FOR CONSEQUENTIAL DAMAGES
1.3.6.1 Kleinfelder and City waive consequential damages for claims, disputes or other matters in question arising out
of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due
to either party's termination in accordance with Section 1.3.8.
1.3.7 MISCELLANEOUS PROVISIONS
1.3.7.1 This Agreement shall be governed by the laws of the state of Texas, and venue shall lie in Williamson County,
Texas.
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1.3.7.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed
to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of
Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the
final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such
statutes of limitations commence to run any later than the date when Kleinfelder's services are substantially completed.
1.3.7.3 To the extent damages are covered by property insurance during construction, City and Kleinfelder waive
all rights against each other and against the contractors, consultants, agents and employees of the other for damages,
except such rights as they may have to the proceeds of insurance as delineated between City and Kleinfelder.
1.3.7.4 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in
favor of a third party against either City or Kleinfelder.
1.3.7.5 City and Kleinfelder, respectively, bind themselves, their successors, assigns and legal representatives to
the other party to this Agreement and to the successors, assigns and legal representatives of such other party with respect
to all covenants of this Agreement. Neither City nor Kleinfelder shall assign this Agreement without the written consent
of the other, except that City may assign this Agreement to an institutional lender providing financing for the Project. In
such event, the lender shall assume City's rights and obligations under this Agreement. Kleinfelder shall execute all
consents reasonably required to facilitate such assignment.
1.3.7.6 Kleinfelder shall comply with all applicable federal and state laws, the Charter and ordinances of the City
of Round Rock, and with all applicable rules and regulations promulgated by all local, state and national boards, bureaus
and agencies. Kleinfelder shall further obtain all permits and licenses required in the performance of the consulting
services contracted for herein.
1.3.7.7 Kleinfelder will pay all taxes, if any, required by law arising by virtue of the 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.
1.3.7.8 Kleinfelder covenants and represents that he 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 Project.
1.3.7.9 Kleinfelder understands and agrees that time is of the essence and that any failure of Kleinfelder to
complete the services for each portion of this Agreement within the agreed schedule will constitute a material breach of
this Agreement.
1.3.7.10 Neither City nor Kleinfelder shall be deemed in violation of this Agreement if prevented from performing
any obligations hereunder by reasons for which it is not responsible or circumstances beyond its control. However,
notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to
mitigate its effects.
1.3.8 TERMINATION OR SUSPENSION
1.3.8.1 If City fails to make payments to Kleinfelder in substantial compliance with this Agreement, such failure may
be considered substantial nonperformance and cause for suspension of performance of services under this Agreement.
If Kleinfelder elects to suspend services, prior to suspension of services, Kleinfelder shall give fifteen (15) days' written
notice to City. In the event of a suspension of services, Kleinfelder shall have no liability to City for delay or damage
caused City because of such suspension of services. Before resuming services, Kleinfelder shall be paid all non -
disputed sums due prior to suspension. Kleinfelder's fees for the remaining services and the time schedules shall be
equitably adjusted.
1.3.8.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Kleinfelder that
City may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the
convenience of City, upon fifteen (15) days' written notice to Kleinfelder, with the understanding that immediately
upon receipt of said notice all work and labor being performed under this Agreement shall cease. Kleinfelder shall
invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this
Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated
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profits. All plans, field surveys, maps, cross sections and other data, designs and work related to the Project which
become the property of City upon termination of this Agreement shall be promptly delivered to City in a reasonably
organized form without restriction on future use. Should City subsequently contract with another person for
continuation of services on the Project, Kleinfelder shall cooperate in providing information.
1.3.8.3 Nothing contained in Section 1.3.8.2 shall require City to pay for any work which is unsatisfactory as
determined by City's representative or which is not submitted in compliance with the terms of this Agreement. City
shall not be required to make any payments to Kleinfelder when Kleinfelder is in default under this Agreement, nor
shall this section constitute a waiver of any right, at law or at equity, which City may have if Kleinfelder is in default,
including the right to bring legal action for damages or to force specific performance of this Agreement.
1.3.9 PAYMENTS TO KLELNFELDER
1.3.9.1 Payments on account of services rendered shall be made monthly upon presentation of Kleinfelder's invoices.
No deductions shall be made from Kleinfelder's compensation on account of penalty, liquidated damages or other sums
withheld from payments, or on account of the cost of Changes in the Work, other than those for which Kleinfelder has
been adjudged to be liable.
ARTICLE 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS
1.4.1 Enumeration of Parts of the Agreement. This Agreement represents the entire and integrated agreement
between City and Kleinfelder and supersedes all prior negotiations, representations or agreements, either written or oral.
This Agreement may be amended only by written instrument signed by both City and Kleinfelder.
1.4.2 Special Terms and Conditions.
Special terms and conditions that modify this Agreement are as follows:
None
ARTICLE 1.5 COMPENSATION
1.5.1 For Kleinfelder's services as described herein, compensation shall be computed as follows:
In accordance with Section 1.1.2.6 herein.
1.5.2 If the services of Kleinfelder are changed as described in Section 1.3.3.1, the compensation may be adjusted.
Such adjustment shall be calculated in an equitable manner.
(Insert basis of compensation, including rates and multiples of Direct Personnel Expense for Principals and employees, and identify Principals and
classes employees, if required. Identify specific services to which particular methods of compensation apply)
1.5.3 Payments are due and payable thirty (30) days from the date of Kleinfelder's invoice, or not later than the time
period required under the Texas Prompt Payment Act, whichever is later. Non -disputed amounts unpaid sixty (60) days
after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing
from time to time at the principal place of business of Kleinfelder.
(Insert rate of interest agreed upon.)
One and one-half percent (1 '/2%) per month
(Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the
Owner's and Architect's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal
advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.)
ARTICLE 1.6 INDEMNIFICATION
1.6.1 Indemnification (Damage Claims). Kleinfelder agrees to defend, indemnify and hold City, its officers, agents
and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury
(including death), property damage or other harm for which recovery of damages is sought, suffered by any person or
I0
persons, that may arise out of or be occasioned by Kleinfelder's breach of any of the terms or provisions of this
Agreement, or by any negligent act or omission of Kleinfelder in the performance of this Agreement; except that the
indemnity provided for in this section shall not apply to any liability resulting from the sole negligence of City, its
officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both
Kleinfelder and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the
laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law
and without waiving any defenses of the parties under Texas law. The provisions of this section are solely for the benefit
of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
ARTICLE 1.7 INSURANCE
1.7.1 Insurance. Kleinfelder, at its sole cost, shall purchase and maintain during the term and entire duration of
this Agreement minimum insurance coverages in the types and amounts as follow:
A. Comprehensive General Liability Insurance with minimum Bodily Injury limits of $300,000 for each
occurrence including like coverage for acts and omissions of subcontractors and contractual liability coverage;
B. Property Damage Insurance with minimum limits of $50,000 for each occurrence including like coverage
for acts and omissions of subcontractors and contractual liability coverage.
C. Automobile Liability Insurance for all owned, non -owned, and hired vehicles with minimum limits for
Bodily Injury of $100,000 for each person and $300,000 for each occurrence, and Property Damage minimum limits of
$50,000 for each occurrence. Kleinfelder shall require subcontractors to provide Automobile Liability Insurance with
the same minimum limits.
1.7.2 Insurance Requirements.
(1) All insurance shall be obtained by Kleinfelder from a company authorized to do insurance business in
Texas and otherwise acceptable to City.
(2) Kleinfelder shall not commence work at any site under this Agreement until it has obtained all required
insurance and until such insurance has been approved by City. Kleinfelder shall not allow any subcontractors to
commence work until all insurance required has been obtained and approved. Approval of the insurance by City shall
not relieve or decrease the liability of Kleinfelder hereunder.
1.7.3 Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by
endorsement to the policy:
(1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -renewal or any
material change in coverage, a notice thereof shall be given to City by certified mail to:
James R. Nuse, P.E.
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Kleinfelder shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation,
non -renewal, or material change in coverage it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums
or assessments for any deductibles which all are at the sole responsibility and risk of Kleinfelder.
(3) The terms "City" or "City of Round Rock" shall include all authorities, Boards, Commissions,
Departments, and officers of City and the individual members, employees and agents thereof in their official capacities,
and/or while acting on behalf of the City of Round Rock.
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(4) 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.
1.7.4 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Kleinfelder shall
be borne solely by Kleinfelder, with certificates of insurance evidencing such minimum coverage in force to be filed
with City.
IN WITNESS WHEREOF, the City of Round Rock has caused this Agreement to be signed in its corporate name
by its Mayor, duly authorized to execute the same in its behalf by Resolution No. R -793--01-8'419F I approved by the
City Council on g -03 , and by the duly authorized representative of Kleinfelder, with both parties binding
themselves, their successors and assigns and legal representatives for the faithful and full performance of the terms and
provisions of this Agreement.
OWNER:
CITY OF ROUND ROCK, TEXAS
CONSULTANT:
KLEINFELDER
By: (/i ��//L�� By:
or
ATTEST:
Christine R. Martinez, City Secretary
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_- 4.1
Je '' . Weat /V., uthorized Representative
CERTIFICATE OF LIABILITY INSURANCE
PRODUCER
Marsh Risk & Insurance Services
P.O. Box 193880 A
San Francisco, CA 94119-3880
B
INSURED C
Kleinfelder, Inc.
5015 Shoreham Place
San Diego CA 92122
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: 7/30/03
COMPANIES AFFORDING COVERAGE
National Union Fire Ins. Co.
American Guarantee and Liability Ins. Co.
American Home Assurance Company
D Zurich American Insurance Co.
CO TYPE OF INSURANCE POLICY EFFECTIVE EXPIRATION LIMITS
LTR NUMBER DATE DATE
A
A
GENERAL LIABILITY
AUTOMOBILE LIABILITY
GL933-2548 3/31/03 3/31/04
GENERAL AGGREGATE $ 2,000,000
PRODUCTS-COMP/OP AGG. $ 2,000,000
PERSONAL & ADV. INJURY $ 1,000,000
EACH OCCURRENCE $ 1,000,000
FIRE DAMAGE (Any one fire) $ 250,000
MED. EXPENSE (Any one person) $ 5,000
8261355 3/31/03
3/31/04
EXCESS LIABILITY 3/31/03 3/31/04
B Umbrella AUC -9303286-01
C
WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
COMBINED SINGLE LIMIT
BODILY INJURY (Per person)
BODILY INJURY (Per accident)
PROPERTY DAMAGE
$ 1,000,000
EACH OCCURRENCE
AGGREGATE
$ 4,000,000
$ 4,000,000
WC7165638 4/1/03 4/1/04
PROFESSIONAL LIABILITY
D EOC 379527000 3/31/03 3/31/04
STATUTORY LIMITS
EACH ACCIDENT
DISEASE - POLICY LIMIT
DISEASE - EACH EMPLOYEE
$ Statutory
$ 1,000,000
$ 1,000,000
$ 1,000,000
DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/SPECIAL ITEMS/EXCEPTIONS
Re: Dell Diamond Renovation
Each Claim $ 500,000
Aggregate $ 500,000
The City of Round Rock is named as additional insured with respect to all policies except Workers' Compensation and Employers' Liability
and Professional Liability. 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 Marsh Risk & Insurance Svcs.
City of Round Rock SIGNATURE OF AUTHORIZED FIBPABSENIAIIMixBroker
221 E. Main Street
Round Rock, Texas 78664 1 a
Typed Name:` Rri an .T . Cnnnnl 1 y
Title: Assistant Vice President
CC: t • Rth a)oi-e_s
RECD AUG 0 4 2003
insurance certificate city of round rock.doc
EXHIBIT -
Revised 10/2002