R-02-09-26-11D7 - 9/26/2002RESOLUTION NO. R- 02- 09 -26 -' 1 D 7
WHEREAS, the City of Round Rock desires to retain personal
services for Project Administration and Inspection for 2002 CIP Tank
Rehabilitation Project, and
WHEREAS, John H. Konzen has submitted an Agreement for Personal
Services for Project Administration and Inspection for 2002 CIP Tank
Rehabilitation Project to provide said services, and
WHEREAS, the City Council desires to enter into said agreement
with John H. Konzen, 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 Personal Services for Project
Administration and Inspection for 2002 CIP Tank Rehabilitation Project
with John H. Konzen, a copy of said agreement 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 26th day of Septe
A�T ST:
CHRISTINE R. MARTINEZ, City S retary
01\wdoz \RE90LVTI \R20926D7.WPD /rmc
20
WELL, Mayor
Ci of Round Rock, Texas
AGREEMENT made as of the
(In words, indicate day, month and year)
BETWEEN the City of Round Rock, Texas, identified as the Owner
(Name, address and other information)
City of Round Rock
221 East Main Street
Round Rock, Williamson County, Texas 78664
and John H. Konen:
(Name, address and other information)
John H. Konzen
Post Office Box 1208
Round Rock, Williamson County, Texas 78680
Agreement for Personal Services for
Project Administration and Inspection
for 2002 CIP Tank Rehabilitation Project
with John H. Konzen
( ) day of the month of in the year Two Thousand Two.
For the following Project:
(Include detailed description of Project.)
Personal services including consulting, construction administration and management, and inspection for the City of Round Rock 2002 CIP Water
Tank Rehabilitation Project.
The City and Konzen 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 "nor 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:
(Identify or describe, if appropriate, proposed use or goals)
Objectives include, but are not limited to, obtaining personal services from John H. Konzen including consulting, construction administration
and management, and inspection of the 500 MG Lake Creek Tank, 750 MG Chandler Creek Tank, 750 MG McNeil Tank, 1 MMG WTP
Clearwell, 2M MG WTP Clearwell and 2.5 MMG S.E. Booster Tank Rehabilitation Project, and to prepare
reports, alternate solutions offerings, probable cost estimates, technical data, pre-construction and construction documents, bidding and
negotiation phase documents, and construction phase inspection and administration.
O. \wdn.`COIIR\Mgmmf1Agnl1 n. W PNltg
EXHIBIT
II A II
1.1.2.2 The physical parameters are:
( /dents or describe, if appropriate, size. location, dimensions, or other pertinent information. such as geolechnical reports about the site.)
The sites of the 500 MG Lake Creek Tank, 750 MG Chandler Creek Tank, 750 MG McNeil Tank, IMMG WTP Clearwell, 2MMG WTP
Clearwell and 2.5 MMG S.E. Booster Tank
1.1.2.3 City's Program is:
(ldentinr d cumentation or state the manner in which the program will be derel ped)
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.)
1.1.25 The financial parameters are as follows:
Compensation to Konzen shall be based on a ten percent (10 %) fee of the estimated total contract cost. The estimated cost for each tank
rehabilitation has been budgeted and the total fee for Konzen's personal services is estimated as follows:
Lake Creek Tank (8 98,780 x 10%) $ 9,870.00
Chandler Creek Tank ($243,800 x 10%) $24,380.00
McNeil Tank ($110,700 x 10%) $11,700.00
WTP IMMG Tank ($138,655 x 10%) $13,865.00
WTP 2MMG Tank ($257,370 x 10 %) 825,370.00
S.E. Booster Tank ($216,360 x 10 %) $21,636.00
1.1.2.6 The time parameters are
( Identfy, (appropriate, milestone dates. durations arjast !rack scheduling.)
Eight (8) months from Konzen's receipt of City's written Notice to Proceed.
Time of Performance: All inspection visits shall be scheduled with Owner and Konzen, if required, for performing the necessary inspection and
testing.
1.1.2.7 The proposed procurement or delivery method for the Project is:
(Identify method such as competitive bid, negotiated contract, or construction management.)
Personal services herein are engaged by this negotiated Agreement
1.1.2.8 Other parameters are:
(Identify special characteristics or needs of the Project such as energy, environmental or historic preservation requirements.)
Unknown at this time.
1.1.3 PROJECT TEAM
1.13.1 The Owner's Designated Representative is:
(List name, address and other information.)
Don Rundell, Project Manager
City of Round Rock Public Works
2008 Enterprise Drive
Round Rock, Texas 78664
8106,821.00
1.1 .3.2 The persons or entity, in addition to the Owner's Designated Representative, who is required to review Konzen's submittals to the
Owner are:
(List name. address and other information.)
2
Robert L Bennett, Jr, AICP
City Manager
221 East Main Street
Round Rock, Texas 78664
1.133 The Owner's other consultants and contractors are:
(List discipline and, if known, identify them by name and address)
1.13.4 Konzen's Designated Representative is:
(List name, address and other information)
John H. Konzen
Post Office Box 1208
Round Rock, Texas 78680
1.13.5 The consultants retained at Konzen's expense are:
(List discipline and, if known, identify them by name and address)
None. This is a personal services Agreement with John H. Konzen.
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 The Owner and Konzen 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, the Owner shall provide full information in a timely manner regarding requirements
for and limitations on the Project. The Owner shall furnish to Konzen, within fifteen (15) days after receipt of a written request, information
necessary and relevant for Konzen to evaluate, give notice of or enforce rights.
1.2.2.2 The Owner shall establish and periodically update the budget for the Project, including that portion allocated for the Cost of the Work,
Owner's other costs, and reasonable contingencies related to all costs.
1.2.23 The Owner's Designated Representative identified in Section 1.1.3 shall be authorized to act on the Owner's behalf with respect to the
Project. The Owner or the Owner's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by
Konzen in order to avoid unreasonable delay in the orderly and sequential progress of Konzen's services.
1.2.2.4 Unless otherwise provided in this Agreement, and if requested in writing, the Owner shall furnish or pay for tests, inspections and
reports required by law or the Agreement, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for
hazardous materials.
1.2.25 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at
any time for the Project to meet the Owner's needs and interests.
1.2.2.6 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.
1.23 KONZEN'S RESPONSIBILITIES
1.23.1 The services performed by Konzen 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.
3
AGREEMENT made as of the
an words, indicate day, month and year.)
BETWEEN the City of Round Rock, Texas, identified as the Owner:
(Name, address and other information.)
City of Round Rock
221 East Main Street
Round Rock, Williamson County, Texas 78664
and John H. Konzen:
(Name, add and other information.)
John H. Konzen
Post Office Box 1208
Round Rock, Williamson County, Texas 78680
For the following Project:
(Include detailed description of Project.)
Agreement for Personal Services for
Project Administration and Inspection
for 2002 CIP Tank Rehabilitation Project
with John H. Konzen
( ) day of the month of in the year Two Thousand Two.
Personal services including consulting, construction administration and management, and inspection for the City of Round Rock 2002 CIP Water
Tank Rehabilitation Project.
The City and Konzen agree as follows.
ARTICLE 1.1 INITIAL INFORMATION
1.1.1 This Agreement is based on the following information and assumptions.
(Note die disposition for the following items by inserting the requested information or a statement such as "nor applicable, " "unknown at time of execution "or
"to be determined rater by mutual agreement.")
1.12 PROJECT PARAMETERS
1.1.2.1 The objective or use is:
(Ident or describe, if appropriate, proposed use or goals.)
Objectives include, but are not limited to, obtaining personal services from John H. Konzen including consulting, construction administration
and management, and inspection of the 500 MG Lake Creek Tank, 750 MG Chandler Creek Tank, 750 MG McNeil Tank, 1 MMG WTP
Clearwell, 2MMG WTP Clearwell and 2.5 MMG S.E. Booster Tank Rehabilitation Project, and to prepare
reports, alternate solutions offerings, probable cost estimates, technical data, pre- construction and construction documents, bidding and
negotiation phase documents, and construction phase inspection and administration.
o:ti.m.conIVenl* 00033Ir.wsorrr
1.1.2.2 The physical parameters are:
( identify or describe. if appropriate, size, location, dimensions, or other pertinent information, such asgeotechnical reports about the site.)
The sites of the 500 MG Lake Creek Tank, 750 MG Chandler Creek Tank, 750 MG McNeil Tank, IMMG WTP Clearwell, 2MMG WTP
Clearwell and 2.5 MMG S.E. Booster Tank
1.1.23 City's Program is:
(Identify documentation or stale 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.)
1.1.2.5 The Financial parameters are as follows:
Compensation to Konzen shall be based on a ten percent (10 %) fee of the estimated total contract cost. The estimated cost for each tank
rehabilitation has been budgeted and the total fee for Konzen's personal services is estimated as follows:
Lake Creek Tank
Chandler Creek Tank
McNeil Tank
WTP I MMG Tank
WTP 2MMG Tank
S.E. Booster Tank
Don Rundell, Project Manager
City of Round Rock Public Works
2008 Enterprise Drive
Round Rock, Texas 78664
(5 98,780 x 10%)
($243,800 x 10%)
(5110,700 x l0 %)
($138,655 x 10%)
($257,370 x l0%)
($216,360 x l0%)
Total Fee $106,821.00
1.1.2.6 The time parameters are:
(identify if appropriate, milestone dates, durations or fast track scheduling.)
Eight (8) months from Konzen's receipt of City's written Notice to Proceed.
Time of Performance: All inspection visits shall be scheduled with Owner and Konzen, if required, for performing the necessary inspection and
testing.
1.1.2.7 The proposed procurement or delivery method for the Project is:
(Identifit method such as competitive bid, negotiated contract, or construction management)
Personal services herein are engaged by this negotiated Agreement
1.1.2.8 Other parameters are:
(Identify special characteristics or needs of the Project such as energy, environmental or historic preservation requirements.)
Unknown at this time.
1.13 PROJECT TEAM
1.1.3.1 The Owners Designated Representative is:
(List name, address and other information.)
1.1.3.2 The persons or entity, in addition to the Owner's Designated Representative, who is required to review Konzen's submittals to the
Owner are:
(List name, address and other information.)
2
$ 9,870.00
$24,380.00
$11,700.00
$13,865.00
$25,370.00
$21,636.00
Robert L. Bennett, Jr., AICP
City Manager
221 East Main Street
Round Rock, Texas 78664
1.133 The Owner's other consultants and contractors are:
(List discipline and, if known, identify them by name and address.)
1.13.4 Konzen's Designated Representative is:
(List name, address and other information)
John H. Konzen
Post Office Box 1208
Round Rock, Texas 78680
1.13.5 The consultants retained at Konzen's expense are:
(List discipline and, if known. ident' them byname and address)
None. This is a personal services Agreement with John H. Konzen.
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 The Owner and Konzen 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, the Owner shall provide full information in a timely manner regarding requirements
for and limitations on the Project. The Owner shall furnish to Konzen, within fifteen (15) days after receipt of a written request, information
necessary and relevant for Konzen to evaluate, give notice of or enforce rights.
1.2.2.2 The Owner shall establish and periodically update the budget for the Project, including that portion allocated for the Cost of the Work,
Owner's other costs, and reasonable contingencies related to all costs.
1.2.23 The Owner's Designated Representative identified in Section 1.1.3 shall be authorized to net on the Owner's behalf with respect to the
Project. The Owner or the Owner's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by
Konzen in order to avoid unreasonable delay in the orderly and sequential progress of Konzen's services.
1.2.2.4 Unless otherwise provided in this Agreement, and if requested in writing, the Owner shall furnish or pay for tests, inspections and
reports required by law or the Agreement, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for
hazardous materials.
1.22.5 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at
any time for the Project to meet the Owner's needs and interests.
1.2.2.6 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.
1.23 KONZEN'S RESPONSIBILITIES
1.23.1 The services performed by Konzen 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.
3
1.23.2 Konzen's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the
Project Konzen shall submit for the Owner'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 by Owner, as the Project proceeds. This
schedule shall include allowances for periods of time required for the Owner's review, and for approval of submissions by authorities having
jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded
by Konzen or Owner.
1.2.33 Konzen, as his own Designated Representative identified in Section 1.1.3.4, shall be the person authorized to act with respect to the
Project.
1.23.4 Konzen shall maintain the confidentiality of information specifically designated as confidential by the Owner, unless withholding such
information would violate the law, create the risk of significant harm to the public or prevent Konzen from establishing a claim or defense in an
adjudicatory proceeding.
1.23.5 Except with the Owner's knowledge and consent, Konzen shall not engage in any activity, or accept any employment, interest or
contribution that would reasonably appear to compromise Konzen's professional judgment with respect to this Project.
1.2.3.6 Konzen shall review laws, codes, and regulations applicable to his services. Konzen shall respond in the Project to requirements
imposed by governmental authorities having jurisdiction over the Project.
1.23.7 Konzen shall be entitled to reasonably rely on the accuracy and completeness of services and infomtation furnished by the Owner. 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.
ARTICLE 13 TERMS AND CONDITIONS
1.3.1 COST OF THE WORK
13.1.1 The Cost of the Work shall be the total cost or, to the extent the Project is not completed, the estimated cost to the Owner of all
elements of the Project designed or specified by Konzen.
13.1.2 The Cost of the Work shall be as delineated herein in Section 1.1.2.5.
13.2 INSTRUMENTS OF SERVICE
13.2.1 Drawings, reports, specifications and other documents, including those in electronic form, prepared by Konzen are for use solely with
respect to this Project. All Konzen's designs and work product under this Agreement , completed or partially completed, shall be the property of
Owner to be used as Owner desires, without restriction on future use; by execution of this Agreement and in confirmation of the fee for services
to be paid under this Agreement, Konzen hereby conveys, transfers and assigns to Owner all rights under the Federal Copyright Act of 1976 (or
any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights acknowledged by law in the
Project designs and work product developed under this Agreement Copies may be retained by Konzen
13.2.2 Upon execution of this Agreement, Konzen grants to the Owner permission to reproduce Konzen's Instruments of Service for purposes
of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all
sums when due, under this Agreement. If and upon the date Konzen is adjudged in default of this Agreement, the Owner 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.
13.23 The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer anypermission granted herein to another party without
the prior written agreement of Konzen. 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 the Owner's sole risk
and without liability to Konzen
133 CHANGE IN SERVICES
133.1 Change in Services of Konzen 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.
4
13.4 MEDIATION
13.43 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 Konzen's services, Konzen may proceed in accordance with applicable law to comply with the
lien notice or filing deadlines prior to resolution of the matter by mediation.
13.4.2 The Owner and Konzen 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.
1.3.5 ARBITRATION
13.5.1 Owner and Konzen hereby expressly agree that no claims or disputes between Owner and Konzen 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 Owner is subject to an arbitration
proceeding related to the Project, Konzen consents to be joined in the arbitration proceeding if Konzen's presence is required or requested by
Owner for complete relief to be accorded in the arbitration proceeding.
13.6 CLAIMS FOR CONSEQUENTIAL DAMAGES
13.6.1 Konzen and the Owner 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 1.18.
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.
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 run any later than the date when Konzen's services are substantially
completed.
1.3.73 To the extent damages are covered by property insurance during construction, the Owner and Konzen 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 as delineated between Owner and Contractor.
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 the Owner or Konzen
1.3.7.5 If the Owner requests Konzen to execute certificates, the proposed language of such certificates shall be submitted to Konzen for
review at least fourteen (14) days prior to the requested dates of execution. Konzen shall not be required to execute certificates that would require
knowledge, services or responsibilities beyond the scope of this Agreement.
1.3.7.6 The Owner Konzen, 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
the Owner nor Konzen shall assign this Agreement without he written consent of the other, except that the Owner may assign this Agreement to
an institutional lender providing financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under this
Agreement. Konzen shall execute all consents reasonably required to facilitate such assignment.
13.7.7 Konzen 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. Konzen shall further obtain all
permits and licenses required in the performance of the personal services contracted for herein.
5
13.7.8 Konzen will pay all taxes, if any, required by law arising by vinue of the personal 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.
13.7.9 Konzen 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.
13.7.10 Konzen understands and agrees that time is of the essence and that any failure of Konzen to complete the services for each portion
of this Agreement within the agreed schedule will constitute a material breach of this Agreement.
13.7.11 Neither the Owner nor Konzen shall be deemed in violation of this Agreement if prevented from performing any obligations
hereunder by reasons for which it or he are not responsible or circumstances beyond its or his 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 the Owner fails to make payments to Konzen 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 Konzen elects to suspend services,
prior to suspension of services, Konzen shall give fifteen (15) days' written notice to the Owner. In the event of a suspension of services,
Konzen shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming
services, Konzen shall be paid all non - disputed sums due prior to suspension. Konzen'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 Konzen that Owner may cancel or
indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the convenience of Owner, upon fifteen (15)
days' written notice to Konzen, with the understanding that immediately upon receipt of said notice all work and labor being performed under
this Agreement shall cease. Konzen shall invoice Owner for all work satisfactorily completed and shall be compensated in accordance with the
teens of this Agreement for all work accomplished prior to thereceipt of said notice. No amount shall be due for lost or anticipated profits. All
plans, field surveys, maps, cross sections and other data, designs and work related to the Project shall become the property of Owner upon
termination of this Agreement, and shall be promptly delivered to Owner in a reasonably organized form without restriction on future use.
Should Owner subsequently contract with another person for continuation of services on the Project, Konzen shall cooperate in providing
information.
13.83 Nothing contained in Section 1.3.8.2 shall require Owner to pay for any work which is unsatisfactory as determined by Owner's
representative or which is not submitted in compliance with the terms of this Agreement. Owner shall not be required to make any payments to
Konen when Konzen is in default under this Agreement, nor shall this section constitute a waiver of any right, at law or at equity, which Owner
may have if Konzen is in default, including the right to bring legal action for damages or to force specific performance of this Agreement.
13.9 PAYMENTS TO KONZEN
13.9.1 Payments on account of services rendered shall be made monthly upon presentation of Konzen's invoices. No deductions shall be
made from Konzen'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 Konzen 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 the Owner and
Konzen and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by
written instrument signed by both Owner and Konzen
1.4.1.1 Other documents as follows:
(List other documents, if any, forming part of the Agreement)
Exhibit "A" entitled " Konzen's Scope of Services.
1.4.2 Special Terms and Conditions.Special terms and conditions that modify this Agreement are as follows:
ARTICLE 15 COMPENSATION
15.1 For Konzen's services as described herein, compensation shall be computed as follows:
In accordance with Section 1.1.2.5 herein.
6
1.5.2 If the services of Konzen arc changed as described in Section 1.3.3.1, the compensation may be adjusted. Such adjustment shall he
calculated in an equitable manner.
(insert basis of compensation, including rules and multiples of Direct Personnel Expense for Principals and employees, and ;denlily Principals and classih•
employees. if required. Identify specific services to which particular method of compensation apply)
13.3 Payments are due and payable thirty (30) days from the date of Konzen'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 Konzen.
(Insert rale al agreed upon.)
One and one -half percent (I ''A %) per month
(Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations al 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).Konzen 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 anyperson or persons, that may arise out of or be occasioned by Konzen's breach of any of the
terms or provisions of this Agreement, or by any negligent act or omission of Konzen in the performance of this Agreement; except that the
indemnity provided for in this section shall not apply to any liability resulting fromthe sole negligence of City, its officers, agents, employees or
separate contractors, and in the event of joint and concurrent negligence of both Konzen 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. Konen, at his 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 550,000 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 5300,000 for each occurrence, and Property Damage minimum limits of 550,000 for each occurrence. Konzen 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 Konzen from a company authorized to do insurance business in Texas and otherwise acceptable
to City.
(2) Konzen shall not commence work at any sites under this Agreement until he has obtained all required insurance and until such
insurance has been approved by City. Konzen 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 Konzen hereunder.
1.73 Insurance Policy Endorsements.Each insurance policy hereunder shall include the following conditions by endorsement to the
policy:
(I) 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:
7
Robert L. Bennett, Jr., AICP
City Manager, City of Round Rock
221 Easi Main Street
Round Rock, Texas 78664
ATTEST:
Konzen 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 Konzen
(3)
The Tenn "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 then official capacities, and/or while acting on behalf of the City of
Round Rock.
(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.
(5) Konzen and City mutually waive subrogation rights each may have against the other for loss or damage, to the extentsame is
covered by the proceeds of insurance.
1.7.3 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Konzen shall be borne solely by Konzen,
with certificates of insurance evidencing such minimum coverage in force to be filed with the 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 John H. Konzen, 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
By:
Nyle Maxwell, Mayor
Christine R. Martinez, City Secretary
8
PROVIDER OF PERSONA VICES:
JOHN H. KONZEN
A. PRELIMINARY PHASE
1. Attend preliminary conference with Owner/Engineer regarding the project.
2. Prepare a preliminary report on the project indicating the problem involved and alternate
solutions available, including probable costs.
3. Furnish Owner with copy of preliminary report and discuss which plan of action to take
based on the projected outcomes of each alternative.
B. DESIGN PHASE
1. Establish the scope of any investigations or special surveys and test which, in the opinion
of Owner/Engineer, maybe required for design; assist Owner /Engineer in arranging for such
work to be done, for the Owner's account.
2. Furnish to Owner, where required by the circumstances of the assignment, the technical data
necessary for application for routine permits by local, state and federal authorities.
3. Prepare detailed probable project cost estimates of authorized construction. The accuracy
of these estimates shall not be guaranteed by Konzen.
C. PRE - CONSTRUCTION PHASE
1. Establish the scope of work and specifications based on the site surveys and research
conducted. Prepare contract documents authorized by Owner.
2. Assist Owner in the advertisement of the project for bids.
3. Assist Owner in the opening and tabulation of bids for construction of the project and
consult with Owner as to the proper action to be taken, based on all considerations involved.
4. Assist in the preparation of formal Contract Documents.
5. Conduct a pre - construction meeting with Owner and Contractor.
D. CONSTRUCTION PHASE
f ,... , olift,nPgmnal•iNN.133$05.WPU/j4g
EXHIBIT "A"
KONZEN'S SCOPE OF SERVICES
Conduct on -site visits to provide Quality Assurance Surveillance and observe the progress
and quality of the executed work in accordance with the Contract Documents. Reasonable
measures shall be taken by Konzen in performing these services to protect Owner against
1
defects and deficiencies in Contractor's work. Konzen shall not guarantee responsibility for
the actual supervision of construction operations or for the safety measures which
Contractor takes or should take.
2. Konen, as an AWS Certified Welding Inspector and NACE Certified Coating Inspector,
shall be on the referenced project. The objective of this project is to provide quality
assurance surveillance of the welding, sandblasting, and painting during the rehabilitation
of the tanks. Inspection and testing visits shall be strategic and at the discretion of
Owner/Engineer. Services so rendered shall include the following:
Welding and Repair Inspection
•
Review tank project drawings to provide comments and recommendations.
Review welder qualification records, and welding procedures.
Verify proper welding electrodes and electrode storage to be used on project.
Conduct inspections on shop fabricated components.
Conduct inspections of field welding and repairs.
The inspection methods to be implemented for the above - referenced inspections shall
consist of Visual Testing. All inspections shall verify compliance with the Contract
Specifications, Konzen, as an AWS Certified Welding Inspector and NACE Certified
Coating Inspector, shall conduct all welding inspections.
Shop fabricated items shall be inspected on -site as they arrive unless Owner requests a shop
visit. The fabrication and weld quality shall be inspected for compliance to AWWA D100-
96. If Owner requires a shop inspection, it shall consist of a Visual Inspection of the
fabricating practices and operations to determine compliance with the AWWA Standard.
All travel and labor expenses, when pre - approved by Owner in writing, shall be reimbursed
at actual costs.
Sandblasting and Coating Inspection
Pre - surface preparation inspection.
Measurement of ambient conditions.
Evaluating compressor and surface preparation equipment.
• Determination of surface preparation cleanliness and profile.
• Inspection of application equipment.
Witnessing coating mixing.
2
E. WORK EXCLUDED
Inspecting coating application.
Determination of wet film thickness.
Determination of dry film thickness.
Evaluation of cleanliness between coats.
Witnessing holiday testing conducted by Contractor.
Evaluating cure.
The inspection methods to be implemented for the sandblasting and coating inspections shall
consist of Visual Inspections, mil gauging, holiday testing, profile gauging and atmospheric
measuring. All inspections shall verify compliance with the AWWA D102-97 and Contract
Specifications. The measurement of air temperature, surface temperature, humidity, dew
point, coating thickness and holiday detection shall be recorded in an inspector's logbook.
The equipment to obtain such measurements shall be supplied by Konzen.
3. Consult and advise with Owner, issue all instructions to Contractor as requested by Owner;
and prepare and issue routine change orders with Owner's prior written approval.
4. Review with Owner all submittals by Contractor. This review shall be for the benefit of
Owner and shall cover general conformance with the information given by the Contract
Documents. This review shall not relieve Contractor of any responsibility such as
appropriate safety measures to protect workers, property, and the public, or of the necessity
to construct a complete and workable facility in accordance with the Contract Documents.
5. Obtain and review monthly and final estimates for payments to Contractor, and furnish to
Owner any recommended payments to Contractor and suppliers; and assemble written
guarantees which are required by the Contract Documents.
6. Conduct with Owner and Contractor a final inspection of the project for compliance with
the Contract Documents; and submit recommendations concerning project status as it may
affect Owner's fmal payment to Contractor.
1. Work required for safely accessing the tanks is not included in the cost of this project. It
shall be Contractor's responsibility to provide safe access to all areas of the tanks for
inspection and testing during construction. OSHA- approved staging shall be necessary for
complete access of the tanks.
2. This Agreement assumes that the tanks will be accessible for inspection, and that any
restrictions requiring special work will affect the cost of performance.
3
1
2002 -2003 TANK
REHABILITATION PROJECT
S/GRAPHICS /ENGINEERING/TANK REHAB PROJ
DATE: September 20, 2002
SUBJECT: City Council Meeting — September 26, 2002
ITEM: *11 D 7 Consider a resolution authorizing the Mayor to execute and
Agreement for Personal Services for Project Administration and
Inspection with John H. Konen for the 2002 CIP Tank
Rehabilitation Project.
Resource: Jim Nuse, Chief of Operations /Assistant City Manager
Tom Clark, Director of Utilities
Don Rundell, Chief Utility Engineer
History: The state requires annual inspections of all water tanks within our distribution
system. With the information from these inspections we schedule each tank for
repairs and painting, based on its present condition. In general, steel tanks need
re- painting every 10 to 15 years.
Public Comment: N/A
Sponsor: N/A
The work under this contract will include general project administration,
construction management and inspection for each of the six (6) tanks to be
rehabilitated between November 2002 and February 2004. Estimated
rehabilitation cost for all six (6) tanks is $1,065,665.00, in addition to the
$106,821.00 for personal services. The total fee for this professional service is
$106,821.00
Funding:
Cost: $106,821.00
Source of funds: Self- Financed Utility Funds
Outside Resources: John H. Konzen
Impact/Benefit: To comply with The Texas Commission on Environmental Quality
(TCEQ) (formerly TNRCC) requirements and maximizing the useful life
of each tank for a fraction of their replacement cost.
AGREEMENT made as of the Aarggl -S!k (ale ) day of the month of SEPTCM/36,4 in the year Two Thousand Two.
(In words, indicate day, month and year.)
BETWEEN the City of Round Rock, Texas, identified as the Owner:
(Name, address and other information)
City of Round Rock
221 East Main Street
Round Rock, Williamson County, Texas 78664
and John H. Konzen:
(Name, address and other information.)
John H. Konzen
Post Office Box 1208
Round Rock, Williamson County, Texas 78680
For the following Project:
(Include detailed description of Project.)
Personal services including consulting, construction administration and management, and inspection for the City of Round Rock 2002 CIP Water
Tank Rehabilitation Project.
The City and Konzen agree as follows.
ARTICLE 1.1 INITIAL INFORMATION
Agreement for Personal Services for
Project Administration and Inspection
for 2002 CIP Tank Rehabilitation Project
with John H. Konzen
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:
(/denti& or describe, if appropriate, proposed use or goals.)
Objectives include, but are not limited to, obtaining personal services from John H. Konzen including consulting, construction administration
and management, and inspection of the 500 MG Lake Creek Tank, 750 MG Chandler Creek Tank, 750 MG McNeil Tank, 1 MMG WTP
Clearwell, 2MMG WTP Clearwell and 2.5 MMG S.E. Booster Tank Rehabilitation Project, and to prepare
reports, alternate solutions offerings, probable cost estimates, technical data, pre - construction and construction documents, bidding and
negotiation phase documents, and construction phase inspection and administration.
1.1.2.2 The physical parameters are:
(Identify or describe, if appropriate, size, location, dimensions, or other pertinent information, such asgeotechnical reports about the site.)
The sites of the 500 MG Lake Creek Tank, 750 MG Chandler Creek Tank, 750 MG McNeil Tank, IMMG WTP Clearwell, 2MMG WTP
Clearwell and 2.5 MMG S.E. Booster Tank
1.1.23 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:
(Idemfy pertinent legal information, including, if appropriate, land surveys and legal descriptions and restrictions of the sire.)
1.1.2.5 The financial parameters are as follows:
Compensation to Konzen shall be based on a ten percent (10 %) fee of the estimated total contract cost. The estimated cost for each tank
rehabilitation has been budgeted and the total fee for Konzen's personal services is estimated as follows:
1.1.2.6 The time parameters are:
(Identify, if appropriate, milestone dates, durations orfast track scheduling.)
Eight (8) months from Konzen's receipt of City's written Notice to Proceed.
Time of Performance: All inspection visits shall be scheduled with Owner and Konzen, if required, for performing the necessary inspection and
testing.
1.1.2.7 The proposed procurement or delivery method for the Project is:
(Identify method such as competitive bid, negotiated contract', or construction management.)
Personal services herein are engaged by this negotiated Agreement
1.1.2.8 Other parameters are:
(Identify special characteristics or needs of the Project such as energy. environmental or historic preservation requirements.)
Unknown at this time.
Lake Creek Tank
Chandler Creek Tank
McNeil Tank
WTP 1 MMG Tank
WTP 2MMG Tank
S.E. Booster Tank
1.13 PROJECT TEAM
Total Fee 5106,821.00
1.1.3.1 The Owner's Designated Representative is:
(List name, address and other information.)
(5 98,780 x 10 %)
(5243,800 x 10 %)
($110,700 x 10 %)
($138,655 x 10 %)
($257,370 x l0 %)
($216,360 x 10 %)
$ 9,870.00
524,380.00
511,700.00
$13,865.00
$25,370.00
$21,636.00
Don Rundell, Project Manager
City of Round Rock Public Works
2008 Enterprise Drive
Round Rock, Texas 78664
1.1.3.2 The persons or entity, in addition to the Owners Designated Representative, who is required to review Konzen's submittals to the
Owner are:
(List name. address and other information)
2
Robert L. Bennett, Jr., AICP
City Manager
221 East Main Street
Round Rock, Texas 78664
1.1.3.3 The Owner's other consultants and contractors are:
(List discipline and, if known, identify them by name and address.)
1.1.3.4 Konzen's Designated Representative is:
(List name. address and other information)
John H. Konzen
Post Office Box 1208
Round Rock, Texas 78680
1.13.5 The consultants retained at Konzen's expense are:
(List discipline and, if known, identify them by name and address)
None. This is a personal services Agreement with John H. Konzen.
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 The Owner and Konzen 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, the Owner shall provide full information in a timely manner regarding requirements
for and limitations on the Project. The Owner shall furnish to Konzen, within fifteen (15) days after receipt of a written request, information
necessary and relevant for Konzen to evaluate, give notice of or enforce rights.
1.2.2.2 The Owner shall establish and periodically update the budget for the Project, including that portion allocated for the Cost of the Work,
Owner's other costs, and reasonable contingencies related to all costs.
1.2.23 The Owner's Designated Representative identified in Section 1.1.3 shall be authorized to act on the Owner's behalf with respect to the
Project. The Owner or the Owner's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by
Konzen in order to avoid unreasonable delay in the orderly and sequential progress of Konzen's services.
1.2.2.4 Unless otherwise provided in this Agreement, and if requested in writing, the Owner shall furnish or pay for tests, inspections and
reports required by law or the Agreement, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for
hazardous materials.
1.2.2.5 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at
any time for the Project to meet the Owner's needs and interests.
1.2.2.6 Each party shall provide prompt written notice to the other if either becomes aware of any fault or defect in the Project, including any
crrors, omissions or inconsistencies.
1.23 KONZEN'S RESPONSIBILITIES
1.23.1 The services performed by Konzen 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.
3
1.2.3.2 Konzen's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the
Project. Konzen shall submit for the Owner'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 by Owner, as the Project proceeds. This
schedule shall include allowances for periods of time required for the Owner's review, and for approval of submissions by authorities having
jurisdiction over the Project. Time Limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded
by Konzen or Owner.
1.2.3.3 Konzen, as his own Designated Representative identified in Section 1.1.3.4, shall be the person authorized to act with respect to the
Project.
1.23.4 Konzen shall maintain the confidentiality of information specifically designated as confidential by the Owner, unless withholding such
information would violate the law, create the risk of significant harm to the public or prevent Konzen from establishing a claim or defense in an
adjudicatory proceeding.
1.23.5 Except with the Owner's knowledge and consent, Konzen shall not engage in any activity, or accept any employment, interest or
contribution that would reasonably appear to compromise Konzen's professional judgment with respect to this Project
1.2.3.6 Konzen shall review laws, codes, and regulations applicable to his services. Konzen shall respond in the Project to requirements
imposed by governmental authorities having jurisdiction over the Project.
1.23.7 Konzen shall be entitled to reasonably rely on the accuracy and completeness of services and information furnished by the Owner. 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.
ARTICLE 13 TERMS AND CONDITIONS
13.1 COST OF THE WORK
13.1.1 The Cost of the Work shall be the total cost or, to the extent the Project is not completed, the estimated cost to the Owner of all
elements of the Project designed or specified by Konzen.
1.3.1.2 The Cost of the Work shall be as delineated herein in Section 1.1.2.5.
13.2 INSTRUMENTS OF SERVICE
1.3.2.1 Drawings, reports, specifications and other documents, including those in electronic form, prepared by Konzen are for use solely with
respect to this Project All Konzen's designs and work product under this Agreement , completed or partially completed, shall be the property of
Owner to be used as Owner desires, without restriction on future use; by execution of this Agreement and in confirmation of the fee for services
to be paid under this Agreement, Konzen hereby conveys, transfers and assigns to Owner all rights under the Federal Copyright Act of 1976 (or
any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights acknowledged by law in the
Project designs and work product developed under this Agreement. Copies may be retained by Konzen
13.2.2 Upon execution of this Agreement, Konzen grants to the Owner permission to reproduce Konzen's instruments of Service for purposes
of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all
sums when due, under this Agreement. If and upon the date Konzen is adjudged in default of this Agreement, the Owner 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
13.2.3 The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to another party without
the prior written agreement of Konzen. 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 the Owner's sole risk
and without liability to Konzen
13.3 CHANCE IN SERVICES
133.1 Change in Services of Konzen 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.
4
13.4 MEDIATION
13.4.1 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 Konzen's services, Konzen 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 The Owner and Konzen 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.
13.5 ARBITRATION
13.5.1 Owner and Konzen hereby expressly agree that no claims or disputes between Owner and Konzen 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 Owner is subject to an arbitration
proceeding related to the Project, Konzen consents to be joined in the arbitration proceeding if Konzen's presence is required or requested by
Owner for complete relief to be accorded in the arbitration proceeding.
1.3.6 CLAIMS FOR CONSEQUENTIAL DAMAGES
13.6.1 Konzen and the Owner 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.
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 as occurring after Substantial
Completion. In no event shall such statutes of limitations commence to run any later than the date when Konzen's services are substantially
completed.
13.73 To the extent damages are covered by property insurance during construction, the Owner and Konzen 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 as delineated between Owner and Contractor.
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 the Owner or Konzen
13.7.5 If the Owner requests Konzen to execute certificates, the proposed language of such certificates shall be submitted to Konzen for
review at least fourteen (14) days prior to the requested dates of execution. Konzen shall not be required to execute certificates that would require
knowledge, services or responsibilities beyond the scope of this Agreement
13.7.6 The Owner Konzen, 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
the Owner nor Konzen shall assign this Agr cement without the written consent of the other, except that the Owner may assign this Agreement to
an institutional lender providing financing for the Project In such event, the lender shall assume the Owner's rights and obligations under this
Agreement. Konzen shall execute all consents reasonably required to facilitate such assignment.
13.7.7 Konzen 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. Konzen shall further obtain all
permits and licenses required in the performance of the personal services contracted for herein.
5
13.7.8 Konzen will pay all taxes, if any, required by law arising by virtue of the personal 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.
13.7.9 Konzen 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.
13.7.10 Konzen understands and agrees that time is of the essence and that any failure of Konzen to complete the services for each portion
of this Agreement within the agreed schedule will constitute a material breach of this Agreement.
13.7.11 Neither the Owner nor Konzen shall be deemed in violation of this Agreement if prevented from performing any obligations
hereunder by reasons for which it or he are not responsible or circumstances beyond its or his 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 the Owner fails to make payments to Konzen 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 Konzen elects to suspend services,
prior to suspension of services, Konzen shall give fifteen (15) days' written notice to the Owner. In the event of a suspension of services,
Konzen shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming
services, Konzen shall be paid all non - disputed sums due prior to suspension. Konzen'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 Konzen that Owner may cancel or
indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the convenience of Owner, upon fifteen (15)
days' written notice to Konzen, with the understanding that immediately upon receipt of said notice all work and labor being performed under
this Agreement shall cease. Konzen shall invoice Owner for all work satisfactorily completed and shall be compensated in accordance with the
terms of this Agreement for all work accomplished prior to thereceipt of said notice. No amount shall be due for lost or anticipated profits. All
plans, field surveys, maps, cross sections and other data, designs and work related to the Project shall become the property of Owner upon
termination of this Agreement, and shall be promptly delivered to Owner in a reasonably organized form without restriction on future use.
Should Owner subsequently contract with another person for continuation of services on the Project, Konzen shall cooperate in providing
information.
13.83 Nothing contained in Section 1.3.8.2 shall require Owner to pay for any work which is unsatisfactory as determined by Owner's
representative or which is not submitted in compliance with the terms of this Agreement. Owner shall not be required to make any payments to
Konzen when Konzen is in default under this Agreement, nor shall this section constitute a waiver of any right, at law or at equity, which Owner
may have if Konzen is in default, including the right to bring legal action for damages or to force specific performance of this Agreement.
13.9 PAYMENTS TO KONZEN
13.9.1 Payments on account of services rendered shall be made monthly upon presentation of Konzen's invoices. No deductions shall be
made from Konzen'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 Konzen 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 the Owner and
Konzen and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by
written instrument signed by both Owner and Konzen
1.4.1.1 Other documents as follows:
(List other documents, if any, forming part of the Agreement.)
Exhibit `A" entitled " Konzen's Scope of Services.
1.4.2 Special Terms and Conditions.Special teens and conditions that modify this Agreement are as follows:
ARTICLE 1.5 COMPENSATION
1.5.1 For Konzen's services as described herein, compensation shall be computed as follows:
In accordance with Section 1.1.2.5 herein.
6
1.5.2 If the services of Konzen 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 classify
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 Konzen'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 Konzen.
(Insert rate of interest agreed upon.)
One and one -half percent (1 V, %) 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).Konzen 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 anyperson or persons, that may arise out of or be occasioned by Konzen's breach of any of the
terms or provisions of this Agreement, or by any negligent act or omission of Konzen in the performance of this Agreement; except that the
indemnity provided for in this section shall not apply to any liability resulting fromthe sole negligence of City, its officers, agents, employees or
separate contractors, and in the event of joint and concurrent negligence of both Konzen 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. Konzen, at his 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 550,000 for each occurrence including like coverage for acts and omissions of
subcontractors and contractual liability coverage.
C. Automobile Liability Insurance for all owned, nonowned, and hired vehicles with minimum limits for Bodily Injury of $100,000 for each
person and 5300,000 for each occurrence, and Property Damage minimum limits of $50,000 for each occurrence. Konzen 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 Konzen from a company authorized to do insurance business in Texas and otherwise acceptable
to City.
(2) Konzen shall not commence work at any sites under this Agreement until he has obtained all required insurance and until such
insurance has been approved by City. Konzen 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 Konzen hereunder.
1.73 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:
7
Robert L. Bennett, Jr., AICP
City Manager, City of' Round Rock
221 East Main Street
Round Rock, Texas 78664
(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 Konzen
(3)
Konzen 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.
The Term "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.
(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.
(5) Konzen and City inutually waive subrogation rights each may have against the other for loss or damage, to the extentsame is
covered by the proceeds of insurance.
1.7.3 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Konzen shall be borne solely by Konzen,
with certificates of insurance evidencing such minimum coverage in force to be filed with the 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. 12-02-0946.-107 approved by the City Council on ,56p7'. al,, .Z�pnd
by John H. Konzen, 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, TE
Bv:
axwell, Mayor
Christine R. Martinez, City Secretary
8
A. PRELIMINARY PHASE
B. DESIGN PHASE
C. PRE - CONSTRUCTION PHASE
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EXHIBIT "A"
KONZEN'S SCOPE OF SERVICES
1. Attend preliminary conference with Owner/Engineer regarding the project.
2. Prepare a preliminary report on the project indicating the problem involved and alternate
solutions available, including probable costs.
3. Furnish Owner with copy of preliminary report and discuss which plan of action to take
based on the projected outcomes of each alternative.
1. Establish the scope of any investigations or special surveys and test which, in the opinion
of Owner/Engineer, maybe required for design; assist Owner/Engineer in arranging for such
work to be done, for the Owner's account.
2. Furnish to Owner, where required by the circumstances of the assignment, the technical data
necessary for application for routine permits by local, state and federal authorities.
3. Prepare detailed probable project cost estimates of authorized construction. The accuracy
of these estimates shall not be guaranteed by Konzen.
1. Establish the scope of work and specifications based on the site surveys and research
conducted. Prepare contract documents authorized by Owner.
2. Assist Owner in the advertisement of the project for bids.
3. Assist Owner in the opening and tabulation of bids for construction of the project and
consult with Owner as to the proper action to be taken, based on all considerations involved.
4. Assist in the preparation of formal Contract Documents.
5. Conduct a pre- construction meeting with Owner and Contractor.
D. CONSTRUCTION PHASE
1. Conduct on -site visits to provide Quality Assurance Surveillance and observe the progress
and quality of the executed work in accordance with the Contract Documents. Reasonable
measures shall be taken by Konzen in performing these services to protect Owner against
I
defects and deficiencies in Contractor's work. Konzen shalt not guarantee responsibility for
the actual supervision of construction operations or for the safety measures which
Contractor takes or should take.
2. Konzen, as an AWS Certified Welding Inspector and NACE Certified Coating Inspector,
shall be on the referenced project. The objective of this project is to provide quality
assurance surveillance of the welding, sandblasting, and painting during the rehabilitation
of the tanks. Inspection and testing visits shall be strategic and at the discretion of
Owner/Engineer. Services so rendered shall include the following:
Welding and Repair Inspection
Review tank project drawings to provide comments and recommendations.
Review welder qualification records, and welding procedures.
Verify proper welding electrodes and electrode storage to be used on project.
Conduct inspections on shop fabricated components.
Conduct inspections of field welding and repairs.
The inspection methods to be implemented for the above - referenced inspections shall
consist of Visual Testing. All inspections shall verify compliance with the Contract
Specifications. Konzen, as an AWS Certified Welding Inspector and NACE Certified
Coating Inspector, shall conduct all welding inspections.
Shop fabricated items shall be inspected on -site as they arrive unless Owner requests a shop
visit. The fabrication and weld quality shall be inspected for compliance to AWWA D100-
96. If Owner requires a shop inspection, it shall consist of a Visual Inspection of the
fabricating practices and operations to determine compliance with the AWWA Standard.
All travel and labor expenses, when pre- approved by Owner in writing, shall be reimbursed
at actual costs.
Sandblasting and Coating Inspection
Pre - surface preparation inspection.
• Measurement of ambient conditions.
Evaluating compressor and surface preparation equipment.
• Determination of surface preparation cleanliness and profile.
• Inspection of application equipment.
Witnessing coating mixing.
2
•
•
•
•
The inspection methods to be implemented for the sandblasting and coating inspections shall
consist of Visual Inspections, mil gauging, holiday testing, profile gauging and atmospheric
measuring. All inspections shall verify compliance with the AWWA D102-97 and Contract
Specifications. The measurement of air temperature, surface temperature, humidity, dew
point, coating thickness and holiday detection shall be recorded in an inspector's logbook.
The equipment to obtain such measurements shall be supplied by Konzen.
3. Consult and advise with Owner, issue all instructions to Contractor as requested by Owner;
and prepare and issue routine change orders with Owner's prior written approval.
4. Review with Owner all submittals by Contractor. This review shall be for the benefit of
Owner and shall cover general conformance with the information given by the Contract
Documents. This review shall not relieve Contractor of any responsibility such as
appropriate safety measures to protect workers, property, and the public, or of the necessity
to construct a complete and workable facility in accordance with the Contract Documents.
5. Obtain and review monthly and fmal estimates for payments to Contractor, and furnish to
Owner any recommended payments to Contractor and suppliers; and assemble written
guarantees which are required by the Contract Documents.
6. Conduct with Owner and Contractor a fmal inspection of the project for compliance with
the Contract Documents; and submit recommendations concerning project status as it may
affect Owner's final payment to Contractor.
E. WORK EXCLUDED
Inspecting coating application.
Determination of wet film thickness.
Determination of dry film thickness.
Evaluation of cleanliness between coats.
Witnessing holiday testing conducted by Contractor.
Evaluating cure.
1. Work required for safely accessing the tanks is not included in the cost of this project. It
shall be Contractor's responsibility to provide safe access to all areas of the tanks for
inspection and testing during construction. OSHA - approved staging shall be necessary for
complete access of the tanks.
2. This Agreement assumes that the tanks will be accessible for inspection, and that any
restrictions requiring special work will affect the cost of performance.
3
Mayor
Nyle Maxwell
Mayor Pro -tem
Tom Nielson
Council Members
Alan McGraw
Carrie Pitt
Scot Knight
Isabel Gallahan
Gary Coe
City Manager
Robert L Bennett, Jr.
City Attorney
Stephan L. Sheets
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
October 21, 2002
Mr. John H. Konzen
P.O. Box 1208
Round Rock, TX 78680
Dear Mr. Konzen:
The Round Rock City Council approved Resolution No. R- 02- 09 -26-
11D7 at their regularly scheduled meeting on September 26, 2002.
This resolution approves an Agreement for Personal Services for
Project Administration and Inspection for 2002 CIP Tank
Rehabilitation Project.
Enclosed is a copy of the resolution and original Agreement for your
files. If you have any questions, please do not hesitate to contact Tom
Clark at 218 -6617.
cerely,Ll n n I�
Christine R. Martinez
City Secretary
Enclosure
CITY OF ROUND ROCK 221 East Main Street • Round Rock, Texas 78664
Phone: 512.218.5400 • Fax: 512.218,7097 • www.ci,round- rock.tx.us