R-2022-096 - 3/24/2022 RESOLUTION NO. R-2022-096
WHEREAS, the City of Round Rock desires to retain professional consulting services related
to environmental services to be provided on an as-needed basis for various projects; and
WHEREAS, Power Engineers, Inc. has submitted an Agreement for Professional Consulting
Services to provide said services; and
WHEREAS, the City Council desires to enter into said agreement with Power Engineers, 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 an
Agreement for Professional Consulting Services for Environmental Services with Power Engineers,
Inc., a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes.
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 24th day of March, 2022.
CRAIG NU G Mayor
City of Rand Roc�k, Texas
ATTEST:
Ci Ay Clerk
4.01. 1 ,
C��v
MEAGAN , INKS, CA
EXHIBIT
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ENVIRONMENTALCITY OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES FOR
STATEWITH
POWER ENGINEERS, INC.
THE
THE CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS
TRAVISCOUNTY OF WILLIAMSON §
COUNTY OF
THIS AGREEMENT for professional consulting services related to environmental
services to be provided on an as-needed basis for various projects (the "Agreement') is made by
and between the CITY OF ROUND , a Texas home-rule municipal corporation with
offices located at 221 East Main Street, Round Rock, Texas 78664-5299 (the "City"), and
POWER ENGINEERS, INC., located at 2600 Via Fortuna, Suite 450, Austin, Texas 7 746 (the
"Consultant"or"POWER Engineers").
City desires to contract for Consultant's professional services generally
described as environmental services; and
City has determined that there is a need for the delineated services; and
desires to contract for such professional services; and
the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder.
THEREFORE,
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
tally agreed between the parties as follows:
DATE,1.0 EFFECTIVE DURATION,
AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto and shall remain in full force and effect unless and until it expires by operation o
the term indicated herein or is terminated or extended as provided herein.
The term of this Agreement shall from the effective date of this Agreement through
December 31, 2024.
4859-16 M 0-8047/ss2
City reserves the right to review the Agreement at any time and may elect to terminate
the Agreement with or without cause or may elect to continue.
2.0 CITY SERVICES
The City agrees to furnish the Consultant the information set forth and appended to this
Agreement as Exhibit "A" titled "Services to be provided by the City," which document is
attached hereto and incorporated herein by reference for all purposes.
3,0 SCOPE OF SERVICES
The Scope of Services is appended to this Agreement as Exhibit "B" titled "Services to
be provided by the Consultant," which document is attached hereto and incorporated herein by
reference for all purposes.
Consultant shall satisfactorily provide all services described herein and as set forth in
Exhibit "B." Consultant's undertaking shall be limited to performing services for City and/or
advising City concerning those matters on which Consultant has been specifically engaged.
Consultant shall perform services in accordance with the appended "Work Schedule," attached
as Exhibit "C" and incorporated herein by reference for all purposes. Services performed by
Consultant shall be in accordance with due care and prevailing consulting industry standards for
comparable services.
4.0 LIMITATION TO SCOPE OF SERVICES
Consultant and City agree that the scope of services to be performed is enumerated in
Exhibit "B" and may not be changed without the express written agreement of the parties.
Notwithstanding anything herein to the contrary, the parties agree that City retains absolute
discretion and authority for all funding decisions, such to be based solely on criteria accepted by
City which may be influenced by but not be dependent on Consultant's work.
5.0 CONTRACT AMOUNT
In consideration for the professional consulting services described in Exhibit "B," City
agrees to pay Consultant an amount not-to-exceed Two Hundred Fifty Thousand and No/100
Dollars ($250,000.00), in accordance with Exhibit "D" entitled "Fee Schedule," which
document is attached hereto and incorporated herein by reference for all purposes.
6.0 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit detailed invoices to
the City, in accordance with the delineation contained herein, for services rendered. Such
invoices for professional services shall track the referenced Scope of Work, and shall detail the
services performed, along with documentation for each service performed. Payment to
Consultant shall be made on the basis of the invoices submitted by Consultant and approved by
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the City. Such invoices shall conform to the schedule of services and costs in connection
therewith.
Should additional backup material be requested by the City relative to service
deliverables, Consultant shall comply promptly. In this regard, should the City determine it
necessary, Consultant shall make all records and books relating to this Agreement available to
the City for inspection and auditing purposes.
Payment of Invoices: The City reserves the right to correct any error that may be
discovered in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of an invoice, the City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 8.01 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and the City or because of amounts which the City has a right to withhold under this Agreement
or state law. The City shall be responsible for any sales, gross receipts or similar taxes
applicable to the services, but not for taxes based upon Consultant's net income.
7.0 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by the City to Consultant will be made within thirty (30) days of the date the City receives
goods under this Agreement, the date the performance of the services under this Agreement are
completed, or the date the City receives a correct invoice for the goods or services, whichever is
later. Consultant may charge interest on an overdue payment at the"rate in effect"on September
I of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(6). This Prompt Payment Policy does not apply to
payments made by the City in the event:
(a) There is a bona fide dispute between the City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed
that cause the payment to be late; or
(b) There is a bona fide dispute between Consultant and a subcontractor or
between a subcontractor and its supplier about the goods delivered or the
service performed that causes the payment to be late; or
(c) The terms of a federal contract, grant, regulation, or statute prevent the City
from making a timely payment with federal funds; or
(d) The invoice is not mailed to the City in strict accordance with any instruction
on the purchase order relating to the payment.
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8.0 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of the City's current revenues only. It is understood and
agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal
year if the governing body of the City does not appropriate funds sufficient to purchase the
services as determined by the City's budget for the fiscal year in question. The City may effect
such termination by giving Consultant a written notice of termination at the end of its then-
current fiscal year.
9.0 TIMETABLES
Unless otherwise indicated to Consultant in writing by City, or unless Consultant is
unreasonably delayed in the orderly progress of its work by forces beyond Consultant's control,
the following timetable structure and deliverable due dates shall be in reasonable conformity to
Consultant's schedule tendered to City and attached as Exhibit"C."
10.0 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if the City determines that there
has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
the City shall not be responsible for actions by Consultant nor for any costs incurred by
Consultant relating to additional work not directly authorized by Supplemental Agreement.
11.0 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that the City may terminate this
Agreement for the convenience of the City, upon thirty (30) days' written notice to Consultant,
with the understanding that immediately upon receipt of said notice all work being performed
under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily
completed and shall be compensated in accordance with the terms hereof for work accomplished
prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related to this project shall become the
property of the City upon termination of this Agreement, and shall be promptly delivered to the
City in a reasonably organized form without restriction on future use. Should the City
subsequently contract with a new consultant for continuation of service on the project,
Consultant shall cooperate in providing information.
Termination of this Agreement shall extinguish all rights, duties, and obligations of the
City and the terminated party to fulfill contractual obligations. Termination under this section
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shall not relieve the terminated party of any obligations or liabilities which occurred prior to
termination.
Nothing contained in this section shall require the City to pay for any work which it
deems unsatisfactory or which is not performed in compliance with the terms of this Agreement.
Default: Either party may terminate this Agreement, in whole or in part, for default if
the Party provides the other Party with written notice of such default and the other fails to
satisfactorily cure such default within ten (10) business days of receipt of such notice (or a
greater time if agreed upon between the Parties).
If default results in termination of this Agreement, then the City shall give consideration
to the actual costs incurred by Consultant in performing the work to the date of default. The cost
of the work that is useable to the City, the cost to the City of employing another firm to complete
the useable work, and other factors will affect the value to the City of the work performed at the
time of default. Neither party shall be entitled to any lost or anticipated profits for work
terminated for default hereunder.
The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of the terminating Party and the terminated Party to fulfill contractual obligations.
Termination under this section shall not relieve the terminated party of any obligations or
liabilities which occurred prior to termination.
Nothing contained in this section shall require the City to pay for any work which it
deems unsatisfactory, or which is not performed in compliance with the terms of this Agreement.
12.0 NON-SOLICITATION
Except as may be otherwise agreed in writing, during the term of this Agreement and for
twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or shall
employ any person employed then or within the preceding twelve (12) months by the other or
any affiliate of the other if such person was involved, directly or indirectly, in the performance of
this Agreement. This provision shall not prohibit the hiring of any person who was solicited
solely through a newspaper advertisement or other general solicitation.
13.0 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the City's employees. This Agreement does not create a
partnership, employer-employec, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and the City agree tote following rights
consistent with an independent contractor relationship:
(1) Consultant has the right to perforrn services for others during the term hereof.
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(2) Consultant has the sole right to control and direct the means, manner and method
by which it performs its services required by this Agreement.
(3) Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and the City shall not hire, supervise, or pay assistants to help
Consultant.
(5) Neither Consultant nor its employees or subcontractors shall receive training from
the City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
(7) Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of the City.
14.0 CONFIDENTIALITY; MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by the City for use by Consultant
in connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any
proprietary or confidential information relative to this Agreement, and to not make any use
thereof other than for the performance of this Agreement, provided that no claim may be made
for any failure to protect information that occurs more than three (3) years after the end of this
Agreement.
The parties recognize and understand that the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
All data relating specifically to the City's business and any other information which
reasonably should be understood to be confidential to City is confidential information of City.
Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries,
inventions, know-how, and any other information which reasonably should be understood to be
confidential to Consultant is confidential information of Consultant. The City's confidential
information and Consultant's confidential information is collectively referred to as "Confidential
Information." Each party shall use Confidential Information of the other party only in
furtherance of the purposes of this Agreement and shall not disclose such Confidential
Information to any third party without the other party's prior written consent, which consent
shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the
confidentiality of the other party's Confidential Information and to advise their employees of the
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confidential nature of the Confidential Information and oft e prohibitions herein.
Notwithstanding anything to the contrary contained herein, neither party shall be
obligated to treat as confidential any information disclosed byte other party (the "Disclosing
Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is released by the Disclosing Party to any other person or entity (including
governmental agencies) without restriction; (3) is independently developed by the recipient
without any reliance on Confidential Information; or (4) is or later becomes publicly available
without violation of this Agreement or may be lawfully obtained by a party from any non-party.
Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information
of the other to a third party as may be required by law, statute, rule or regulation, including
subpoena or other similar for of process, provided that (without breaching any legal or
regulatory requirement) the party to who the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall
preclude or limit Consultant from providing similar services for other clients.
Notwithstanding the foregoing, either party will be entitled to disclose Confidential
Information of the other to a third party as may be required by law, statute, rule or regulation,
including subpoena or other similar for of process, provided that (without breaching any legal
or regulatory requirement) the party to whom the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall
preclude or limit Consultant from providing similar services for other clients.
Neither the City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered tote City under the terms of this Agreement (the "Deliverables"); and
Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods,
techniques, processes, software, or other similar information which may have been discovered,
created, developed or derived by Consultant either prior to or as a result of its provision of
services under this Agreement (other than Deliverables). Consultant's working papers and
Consultant's Confidential Information (as described herein) shall belong exclusively to the
Consultant. City shall have a non-exclusive, non-transferable license to use Consultant's
Confidential Information for City's own internal use and only for the purposes for which they are
delivered to the extent that they for part of the Deliverables.
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15.0 WARRANTIES
Consultant represents that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be perfonned in a
professional manner. Consultant shall re-perform any work not in compliance with this
representation reported to Consultant within one (1)year of completion of the work.
16.0 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of the City or of this
Agreement, then and in that event the City shall give written notification to Consultant;
thereafter, (a) Consultant shall either promptly re-perform such services to the City's satisfaction
at no additional charge, or (b) if such deficient services cannot be cured within the cure period
set forth herein,then this Agreement may be terminated for default.
In no event will Consultant be liable for any loss, damage, cost or expense attributable to
negligence, willful misconduct or misrepresentations by the City, its directors, employees or
agents.
In no event shall Consultant be liable to the City, by reason of any act or omission
relating to the services provided under this Agreement (including the negligence of Consultant),
whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit,
punitive, special or similar damages relating to or arising from the services, or (b) in any event,
in the aggregate, for any amount in excess of the total professional fees paid by the City to
Consultant under this Agreement, except to the extent determined to have resulted from
Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service
provided hereunder.
17.0 INDEMNIFICATION
Consultant and the City each agree to indemnify and hold harmless the other from and
against amounts payable under any judgment, verdict, court order or settlement for death or
bodily injury or the damage to or loss or destruction of any real or tangible property to the extent
arising out of the indemnitor's negligence in the performance of this Agreement.
Consultant agrees to indemnify and hold harmless the City from and against any and all
amounts payable under any judgment, verdict, court order or settlement for Third Party claims of
infringement of any trade secrets, copyrights, trademarks or trade names alleged to have
occurred and arising from the deliverables provided by the Consultant to the City. Should the
City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i)
procure for the City the right to continue using such deliverables provided or (ii) replace or
modify them to make their use non-infringing while yielding substantially equivalent results. If
neither of the above options is or would be available on a basis that is commercially reasonable,
then Consultant may terminate this Agreement, the City shall return such deliverables provided,
and Consultant will refund to the City the fees paid for the deliverables provided. This
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infringement indemnity does not cover claims arising from the combination of such deliverables
with products or services not provided by Consultant; the modification of such deliverables by
any person other than Consultant; deliverables complying with or based upon (1) designs
provided by or at the direction of the City or (2) specifications or other information provided by
or at the direction of the City; or use of systems, materials or work perfon-ned in a manner not
permitted hereunder or by another obligation of the City to Consultant.
The indemnities in this section are contingent upon: (1) the indemnified party promptly
notifying the indemnifying party in writing of any claim which gives rise to a claim for
indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense
and settlement of such claim; and (3) the indemnified party cooperating with all reasonable
requests of the indemnifying party (at the indemnifying party's expense) in settling a claim. The
indemnified party shall have the right, at its option and expense, to participate in the defense of
any suit or proceeding through counsel.
18.0 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval, which approval shall not be unreasonably withheld.
19.0 LOCAL,STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. The City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf, or
(3) Withhold state or federal income tax from any of Consultant's payments.
If requested, the City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
20.0 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
A. Consultant, its consultants, agents, employees and subcontractors shall use best
efforts in accordance with the standard of care set forth in Section 15,0 of this Agreement to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights as set forth in Exhibit "A," and same shall belong solely to
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the City at the expiration of the term of this Agreement.
B. In accordance with Chapter 2271, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) and will not
boycott Israel during the term of the contract. The signatory executing this Agreement on behalf
of Consultant verifies that Consultant does not boycott Israel and will not boycott Israel during
the term of this Agreement.
C. In accordance with 2274, Texas Government Code, a governmental entity may
not enter into a contract with a company with at least ten (10) full-time employees for value of
at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has a
provision in the contract verifying that it: (1) does not have a practice, policy, guidance, or
directive that discriminates against a firearm entity or firearm trade association; and (2) will not
discriminate during the term of the contract against a firearm entity or firearm trade association.
The signatory executing this Contract on behalf of the Engineer verifies Engineer does not have
a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm
trade association, and it will not discriminate during the term of this Contract against any
firearm entity or firearm trade association,
D. In accordance with 2274, Texas Government Code, a governmental entity may
not enter into a contract with a company with at least ten (10) full-time employees for a value of
at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has a
provision in the contract verifying that it: (1) does not boycott energy companies; and (2) will
not boycott energy companies during the term of this Contract. The signatory executing this
Contract on behalf of Engineer verifies Engineer does not boycott energy companies, and it will
not boycott energy companies during the term of this Contract.
21.0 INSURANCE
A. Insurance. Consultant, at Consultant's sole cost, shall purchase and maintain
during the entire term while this Agreement 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 the City. Consultant shall also notify
the 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.
B. Subconsultant Insurance. Without limiting any of the other obligations or
liabilities of Consultant, Consultant shall require each subconsultant performing work under this
Agreement to maintain during the term of this Agreement, at the subconsultant's own expense,
the same stipulated minimum insurance required in Paragraph A above, including the required
provisions and additional policy conditions as shown below in Paragraph C.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant
in order to assure compliance with the insurance requirements. Consultant must retain the
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certificates of insurance forte duration of this Agreement, and shall have the responsibility of
enforcing these insurance requirements among its subconsultants. The City shall be entitled,
upon request and without expense, to receive copies oft ese certificates of insurance.
C. Cost of Insurance. The cost of all insurance required herein to be secured and
maintained by Consultant shall be borne solely by Consultant, with certificates of insurance
evidencing such minimum coverage in force to be filed with the City. Such Certificates of
Insurance are evidenced as Exhibit E herein entitled "Certificates of Insurance."
D. Notice. As set forth in the Certificate of Insurance, thirty (30) days prior tothe
expiration, cancellation, non-renewal or reduction in limits by endorsement, a notice thereof
shall be given to the City by certified mail to:
City Manager
221 East Main Street
Round Rock, TX 78664
22.0 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials orequipment that will be recommended or required hereunder.
23.0 DESIGNATION OF REPRESENTATIVES
The City hereby designates the following representative authorized to act in its behalf
with regard tothis Agreement:
Joseph Daley
Utilities and Environmental Services
Manager- Stormwater
3400 Sunrise Road
on Rock, TX 78665
(512) 218-6646
idalev awtoundroc ktexas.gov
Consultant hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Steve McVey, P.G.
Senior Project Manager
2600 Via Fortuna, Suite 450
Austin, TX 78746
(512) 879-6625
steve.mcvey namoweren2.com
24.0 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
POWER Engineers, Inc.
2600 Via Fortuna, Suite 450
Austin, TX 78746
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of the City and Consultant.
25.0 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, 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 Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
26.0 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including exhibits, constitute the entire
agreement between the parties and supersede all previous communications, representations, and
agreements, either written or oral, with respect to the subject matter hereof. The parties
expressly agree that, in the event of any conflict between the terms of this Agreement and any
other writing, this Agreement shall prevail. No modifications of this Agreement will be binding
on any of the parties unless acknowledged in writing by the duly authorized governing body or
representative for each party.
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27.0 DISPUTE RESOLUTION
The City and Consultant hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1-1 ) or any applicable state arbitration statute.
In the event a dispute or claim arises under this Agreement, the parties must attempt to
resolve the dispute or claim using the following procedure prior to terminating the Agreement:
The party with the dispute shall make a written request for a telephone conference to be held
between a representative of each party within five (5) days of the request. The purpose of this
telephone conference and any subsequent telephone conferences shall be to negotiate in good
faith the matter(s) constituting the dispute. If within ten (10) calendar days of the initial
telephone conference, the parties have not reached a mutually satisfactory resolution, then the
parties shall attempt to resolve the dispute or claim with the assistance of a mutually selected
mediator. If the parties cannot agree on a mediator, the parties shall each select a mediator and
the two mediators shall agree upon a third mediator. A mediator shall be chosen within fifteen
(15) days or within Such time frame as agreed upon by both parties. Any mediation proceeding
shall occur in Round Rock, Texas. Any costs and fees, other than attorney fees, associated with
the mediation shall be shared equally by the parties. Failing resolution through mediation, either
party may pursue legal action in Williamson County,Texas.
28.0 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision, The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
29.0 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, according to generally accepted business practices as set forth in Section 15.0 of
this Agreement.
13,
30.0 GRATUITIES AND BRIBES
City, may by written notice to Consultant, cancel this Agreement without incurring any
liability to Consultant if it is determined by City that gratuities or bribes in the form of
entertainment, gifts, or otherwise were offered or given by Consultant or its agents or
representatives to any City Officer, employee or elected representative with respect to the
performance of this Agreement. In addition, Consultant may be subject to penalties stated in
Title 8 of the Texas Penal Code.
31.0 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure an anticipatory repudiation of this Agreement.
32.0 MISCELLANEOUS PROVISIONS
Time is of the Essence. Consultant agrees that time is of the essence and that failure of
Consultant to complete the services for each phase of this Agreement within the agreed project
schedule may constitute a material breach of this Agreement. Consultant shall be fully
responsible for its delays or for failures to use reasonable efforts in accordance with the terms of
this Agreement. Where damage is caused to City due to Consultant's failure to perform in these
circumstances, City may withhold, to the extent of such damage, Consultant's payments
hereunder without a waiver of any of City's additional legal rights or remedies. City shall render
decisions pertaining to Consultant's work promptly to avoid unreasonable delays in the orderly
progress of Consultant's work.
Force Majeure. Notwithstanding any other provisions hereof to the contrary, no failure,
delay or default in performance of any obligation hereunder shall constitute an event of default
or breach of this Agreement, only to the extent that such failure to perform, delay or default
arises out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Section Numbers. The section numbers and headings contained herein are provided for
convenience only and shall have no substantive effect on construction of this Agreement.
Waiver. No delay or omission by either party in exercising any right or power shall
impair such right or power or be construed to be a waiver. A waiver by either party of any of the
covenants to be performed by the other or any breach thereof shall not be construed to be a
waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid
14
unless in writing and signed by an authorized representative of the party against who such
waiver or discharge is sought to be enforced.
Multiple Counterparts. This Agreement may be executed in multiple counterparts,
which taken together shall be considered one original. The City agrees to provide Consultant
with one fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock,Texas Powkm(B*as, I10
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By: By:
Lessner )M:2012:03M 11017:14 016W
Printed Name: Printed Name: Timothy P, qq§§per
Title. Title: —Business Unit Director
Date Signed: Date Signed: ..........31.112.0.22...........................................__.....................
For City,Attest:
By:
Meagan Spinks, City Clerk
For City, Approved as to Form:
By:
Stephan L. Sheets, City Attorney
City of Round Rock Environmental Services
Contract for Consultant Services
Exhibit A
Services to be provided by the City
The City will provide the following information and other assistance to the Consultant that the City
deems appropriate and necessary:
I. Any readily available pertinent existing information relating to the services to be performed
by the Consultant; the City will provide one copy of such information in a format chosen by
the City.
2. Clear direction and/or response to questions or requests made by the Consultant in the course
of the Consultant's performance of services.
3. Timely review of deliverables that have been properly completed and submitted by the
Consultant; and timely provisions of comments, if any,to the Consultant resulting from said
reviews.
Page A-1 of I
City of Round Rock Environmental Services
Contract for Consultant Services
EXHIBIT B
Services to be provided b
I the Co sultant
The City of on Rock is seeking assistance on an as-needed basis for environmental related
tasks. The Consultants will provide a support team with sufficient qualified staff to ensure prompt
availability with minimal notice for each task.
Work authorizations(WAs) will be issued with discreet scopes and budgets.To maintain accurate
accounting of contract value authorized and spent, the Consultant will provide a monthly report
summarizing all WAs issued, total budget amount, cumulative invoiced amount, current invoice
amount, budget remaining and status of the work completion. This monthly reporting task would
be a stand-alone line item ands of be included by the City of Round Rock in budgeting purposes
as a fixed, monthly cost (see Exhibit D ,,, Fee Schedule Env Services).
Types of technical work may include:
Environmental Review, Permitting, an Anal_Iqd _ _
Support for City projects and/or interests regarding compliance with various Federal and State
Regulatory Agencies including: Texas Commission on Environmental Quality (TCEQ),
Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (DACE), U.S. Fish
and Wildlife Service (USFWS), and Texas Parks and Wildlife Department(TPWD).
Work may include biological surveys, archaeological surveys, and other environmental
assessment activities necessary for site assessments, risk assessment and management, records
management, construction support, regulatory strategy and liaison for the following:
• Phase I and 11 Environmental Site Assessments (ESAs)
• National Environmental Policy Act (NEPA) Documentation
• TCEQ Edwards Aquifer Protection Program
• USA CE 404 Permitting and Regulatory Wetland Delineations
• Total Maximum Daily Load (TMDL) and associated I-Plan
• TCEQ TPDES Wastewater Treatment Plant Permitting and Compliance Support
• TCEQ Drinking Water Supply Permitting and Compliance Support
Hazardous MaterialsHazardous Waste,.and Solid Waste Mang- ment Issues
.......................................... aerialsazar................................................................. ................................................................
.....................p
. ............................................
Assistance with Federal and State environmental regulations governing the management of city-
generated hazardous/special waste, hazardous/special material spills, clean up, and restoration.
Work may include support and guidance regarding the storage, transportation, use, removal,
lawful disposal, manifests, underground tanks, health and safety concerns, training, and permit
requirements. Tasks may include hazardous and special waste management services (including
but not limited to): preparation of annual waste reports,training for City staff regarding waste
management, and assistance to the City regarding the classification and proper disposal of waste.
Page B-I of
City of Round Rock Environmental Services
Contract for Consultant Services
Facilities Environmental Management& Inspections
Asbestos: The Consultant may be required to perform asbestos surveys, prepare abatement
project specifications, and oversee abatement activities. The Consultant shall provide a Licensed
Asbestos Consultant Agency and a Licensed Asbestos Individual Consultant to perform or
oversee the services.
Other Related Risks (e.g. Mold, Lead-Based Paint. Radon. and Radiation): The Consultant may
be required to provide guidance and assistance regarding the assessment and remediation for
potential mold, lead-based paint, radon, radiation, and/or indoor air quality concerns.
Storm Water Management: The Consultant may be required to assist the City with management of its
TPDES MS4,CGP, and/or MSGP permits including providing direction and guidance in storm water
pollution prevention plans(SWP3). The Consultant may also be required to conduct storm water
monitoring, training,and inspections of City facilities in relation to appropriate permits.
In support of the activities above, the consultant may also be required to
Task Supplemental 1;Analytical Laboratory Services
The City expects that analytical laboratory services will be required for this contract to perform
analytical testing in support of the above mentioned environmental services. The laboratories
should maintain accreditation by an approved, independent accrediting organization, e.g.,
American Association of Laboratory Accreditation (A2LA) and/or demonstrate successful
participation in appropriate proficiency analytical testing programs for the testing that they will
perform under this contract, and/or be in good standing with TCEQ and EPA, as necessary.
Task Supplemental 2: Texas Antiguities Code/Texas Historical Commission
It is not uncommon for environmental and archeological consulting services to overlap on the same
project. The consultant (or its partner firm) may be required to conduct investigations for
environmental, antiquities, and historical concerns often inform and direct decisions on land
acquisition, preliminary site layout, etc. Antiquities/Historical consultants shall have knowledge
and experience of Federal and State regulations and grant requirements.
1. KEY PERSONNEL
A summary of the proposed engineering team including names and titles are presented in table
B-1.
TABLE B-1
SUMMARY OF PROPOSED CONSULTANT TEAM PERSONNEL
NAME TITLE
Steve McVey Senior Project Manager
Julie Morelli Senior Project Manager
Rob von Czoernig Project 1 Manager
Jennifer Knowles Staff 3 Scientist/GIS
Jacob Geesin Natural Resource Scientist
Ryan Bayer Senior Consultant
Page B-1 of
City of Round Rock Environmental Services
Contract for Consultant Services
Matt Klaser Senior Technician
Betty Moore Senior Consultant
Paul Moore Project 3 Manager
Dave Sorrells Senior Consultant
Darren Schubert Principal Investigator
Josh Hill Project Archeologist
Bill Bishop Asbestos Consultant
Lee Thompson Asbestos & Mold Consultant
Troy Jenkins —Asbestos, of & Indoor Air Consultant
Page B-I of
City of Round Rock Environmental Services
Contract for Consultant Services
EXHIBIT C
Work Schedule
All work shall be complete by December 31,2024.
(Work Schedule to be determined with each individual Work Authorization.)
Exhibit D- Fee Schedule Env Services 2022
POWER Engineers, Inc., Prime Contractor
Labor Category Hourly Rate
Principal $240
Senior Consultant $220
Senior Project Manager/Engineer/Scientist $205
Project 3 Manager/Engineer/Scientist $185
Project 2 Manager/Engineer/Scientist $170
Project 1 Manage r/Engineer/Scientist $165
Senior Staff Engineer/Scientist $160
Staff 3 Engineer/Scientist $140
to 2 Engineer/Scientist $130
Principal investigator $130
Staff 1 Engineer/Scientist $120
Natural Resources Scientist $110
Natural Resources Specialist $100
Project Archeologist $100
Senior Tech ni cia n/Draftsma n $95
Tech n ician/D raftsma n $90
Project Support Specialist $75
Administrative Assistant $65
Jenkins Environmental,Subcontractor
Labor Category Hourly Rate
Principal Consultant (indoor Air Quality) $180
Asbestos/M old/Lead Consultant $120
Lead/Asbestos Project Manager $120
Inspector Project Manager $100
Program Management&Monthly Reporting Task Hourly Rate
Assumes Principal and Project Support Specialist will spend
1 hour per month to generate this report. $275
Exhibit "E"
Client#:25483 POWEENG11
DATE(MMIDDIYYYY)
ACORD,. CERTIFICATE OF LIABILITY INSURANCE 3/30/2021
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERIS),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(les)must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on
this certificate does not confer any rights to the certificate holder In lieu of such endorsement(s).
PRODUCER NAME; Carly Underwood
Greyling Ins.Brokerage/EPIC PHONE 770.670.532_4_ __ FA —
A!_GNo Ext: QA1C Node__________________
3780 Mansell Read,Suite 370 E•MAILL t carUnerwoore n
ADDRESS: ydd @gIl
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Alpharetta,GA 30022 _..__._.__.-------------—_.-___..�u�.,..._--------
INSURER(S)AFFORDING COVERAGE NAIC 0
INSURER A_:National Union Fire Ins.CO. 19445
INSURED INSURER B Allied World Assurance Company(U.S.)____________ 19489 MMM
POWER Engineers, Inc.
INSURER C:New Hampshire Ins.Co. 23841
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3940 Glenbrook Drive; P.O.Box 1066 :AIU Insurance Company 19399
INSURER 0D p Y
Hailey,ID 83333 S ndicate 26231623 at Llo d's 085202
INSURER E E: Y Y
INSURER F:
COVERAGES CERTIFICATE NUMBER: 21-22 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT„ TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INBR �'.-----------------------------ADHL§TE _____________ ---OLIICY EFF POLICY EXP
LTR TYPE OF INSURANCE IN, R VWD ________I----- --- -R Q„M q! ____�.Q„MI�PQ____ __________________LIMITS
A X COMMERCIAL GENERAL LIABILITY _ GL5268183��� --- 4/0112021 04/011202 EACH OCCURRENCE �� S 1 OOO OPO __
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--_]CLAIMS MADE I XI'OCCUR �krk P. M5500
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MED EXP(Any one per_r 25 000__________
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GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGA fEMMMM $2,000,000
.__
X11 PRO __________________-----------------------
POLICY
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_ POLICY d, X .)Ecr X LOC PRODUCTS-COMPA'?P ACC 52,000,000____
OTHER_______________________ _ _ _____________ __ $
_ -------
OTHER
--------
A_ AUTOMOBILE LIABILITY CA4489679 410112021 04/011202 COMBINED SINGLE LIMIT____.______
$2,000,000
X ANY AUTO (AOS) BODILY INJURY(Per person) 5
OWNED _ sUHEDULt o CA4489678 410112021 04/011202 BODILY INJURY(Per accident) s
A _ AUTOS ONLY _ Al1TOS
X AUTOS ONLY J( NON-OVMED MA PGt WERTY dii t94GE�� _ .S
AUTOS ONLY ( Pia ecdden0.k _________ .________________
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B X UMBRELLA LIAB_ X OCCUR 03122825 _ H
410112021 041011202 E_aaC_H_O_C_C_UR_RENCE $5000 000
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X( EXCESS LIAB _ CLAWS-MADEA43GREGATE___________ SS OOO OOO
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AND EMPLOYERS'LIABILITY t ---- --- �----------------------
ANY PROPRIETORIPARTNERIEXECUT'VE YIN (AOS) E.L EACH ACCIDENT A109-0199A
OFFICERIMEMBER EXCLIaDE09 I N,: NIA -------
D (Mandatory in NHJ WC015893718 0410112021 04/011202 E_L DIsEASE-EA EMPLOYEE s1 l000o0P0_______
PP yyon, IPTu01 OF er
O RCA _ E-L RISEASE POLICY LIMIT S�
DES�RIPT ON OF OPERATIONS below____ __ -(_ p_ __ ,000,000
E Professional Liab W13B97210901 4101/2021 04/011202 Per Claim$5,000,000
incl.Pollution Aggregate$5,000,000
DESCRIPTION OF OPERATIONS I LOCATIONS 1 VEHICLES(ACORD 101.,Additional Remarks Schedule,may be attached if more space Is required)
The City of Round Rock is named as an Additional Insured on the above referenced liability policies with the
exception of workers compensation&professional liability where required by written contract.Should any of
the above described policies be cancelled by the issuing insurer before the expiration date thereof,30
days'written notice(except 10 days for nonpayment of premium)will be provided to the Certificate Holder.
L_
CERTVFICATE HOLDER CANCELLATION
City f Round Rock SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE(CANCELLED BEFORE
ty D 'THE EXPII TIONDATE THEREOF, NOTICE WILL, IBE DELIVERED IN
City Manager ACCORDANCE Wl.rH THE POLICY PROVISIONS.
221 East Dain Street
Round Rock,TX 78664-0000 AUTHORIZED REPRESENTATIVE
1988-2015 ACORD CORPORATION.All rights reserved.
ACORD 25 12010103) 1 Oft The ACORD name.and Iloo are registered marks of ACORD
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