R-03-02-27-9F2 - 2/27/20031.1 INITIAL INFORMATION
1.2 RESPONSIBILITIES OF THE PARTIES
1.3 TERMS AND CONDITIONS
1.4 COMPENSATION
1.5 MISCELLANEOUS PROVISIONS
AGREEMENT made as of the t .06Allt/ - ( , 1 day of the month of Feb uER Li in the year Two Thousand Three.
BETWEEN Architect's/Consultant's client identified as Owner.
City of Round Rock, Texas
221 East Main Street
Round Rock, Williamson and Travis Countics, Texas 78664
and Architect/Consultant:
For the following Project:
Standard Form of Agreement
Between Owner and Architect/Consultant
Kimley -Horn and Associates, Inc. (KHA)
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251
Based on
AIA Document B141 -1997
1997 Edition - Electronic Format
TABLE OF ARTICLES
Phase One professional services generally including coordination and design management, site evaluation and selection
assistance, master planning, programming and schematic design activities relating to the following: design and construction
of a new outdoor aquatic facility called the Aquatic Recreation Complex on a siteat or near Old Settlers Park in Round
Rock, Williamson County, Texas.
Owner and Architect/Consultant agree as follows:
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ARTICLE 1.1 INITIAL INFORMATION
1.1.1 This Agreement is based on the following information and assumptions.
1.1.2 PROJECT PARAMETERS
1.1.2.1 The objective or use is:
Design and construction of a new outdoor aquatic facility called the Aquatic Recreation Complex on a site at or near Old
Settlers Park in Round Rock, Williamson County, Texas.
1.1.2.2 The physical parameters arc:
Location to be on site at or near Old Settlers Park in Round Rock, Williamson County, Texas.
No environmental assessment, hydraulic studies, floodplain studies, or additional on -site storm water detention should be
required. Water and sanitary sewer are available on -site. Storm drainage is to be directed to the existing drainage channel on
site. Electrical service is to be coordinated with local providers to insure that sufficient power is available on site for the Project,
and Architect/Consultant shall provide load information to assist Owner in coordinating any electrical or gas service
requirements with local providers.
Documents to be furnished to Architect/Consultant shall, when available, include the following: (I) recent master plans
prepared for Old Settlers Park; (2) previous topographic surveys at or near the Aquatic Complex site; (3) previous geo-technical
investigations at or near the Aquatic Complex site (4) as -built plans and information on existing utilities and other adjacent
park facilities; (5) City of Round Rock landscaping ordinances; (6) a list and copies of relevant municipal standards,
requirements, and ordinances that will govem design of the Project.
1.1.2.3 Owner's Scope of Services is:
Basic Services include the following:
Task I Coordination and Design Management
KHA shall serve as the lead design consultant and project design team manager. Items of work included in this Task
1 are as follow:
(A) Coordinate the survey and geo-technical work;
(B) Assist Owner in defining the project scope, design budgets, and assignment of design team responsibilities;
(C) Organize and lead a one -day visit to a similar facility in the Central Texas area
(D) Perform initial due diligence to determine utility services and Owner requirements;
(E) Manage the Project and direct the consulting team during the Phase One schematic design phase; and
(F) Communicate regularly with Owner.
Task 2 Site Evaluation and Selection
KHA shall assist Owner in evaluating three (3) possible sites for the Aquatic Complex within and/or adjacent to Old
Settlers Park. Items of work included in this Task 2 are as follow:
(A) Review availability and cost implications of infrastructure for each site;
(B) Review impact of the Project on vehicular circulation and parking for each site with respect to existing and
proposed improvements to Old Settlers Park; and
(C) Review impact of the Project on adjacent or planned uses for each site.
Task 3 Master Plan and Programming
KHA and Architect's/Consultant's team [including subcontractors Davis and Davis, Inc. (DDI) and Counsilman-
Hunsaker and Associates (CHA)] shall assist Owner in finalizing the design program and master plan for the Project,
including initial and future phases. Items of work included in this Task 3 are as follow:
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(A) Organize and lead a two -day symposium, including a work session with representatives involved in the
Project, to develop the final features to be included; and, if required, organize and lead one public meeting;
(B) Prepare and present an outline Design Program Analysis including pool configurations, user requirements
and programs, adjacencies and circulation, spectator facilities, hydrostatic relief system, traffic patterns,
deck equipment, underwater features, pool piping and filtration options, and safety and maintenance
equipment;
(C) Programming of the entry building including support spaces, first aid, concessions, maintenance, and
dressing rooms and restrooms; and
(D) Prepare and submit a final Design Program Analysis with conceptual drawings to reflect changes and
comments determined by consensus at a meeting with Owner representatives.
Task 4 Schematic Design
Items of work included in this Task 4 are as follow:
(A) Prepare schematic plans, sections, and outline specifications for the pools, buildings, and site development
showing dimensions and features;
(B) Provide a statement of probable costs for the pools, buildings, and site development and answer questions
regarding estimated cost data;
(C) Provide information on finishes, equipment, lighting, outlets, pool water supply and waste, structural
design, and site utilities;
(D) Meet with Owner representatives to present the schematic design and/or to review design comments;
(E) Finalize the schematic design package to reflect changes and comments determined by consensus at
meetings with Owner representatives; and
(F) Present Costs and Master Plan to City Council for comment and to determine if the Project's scope and
budget will be modified.
Included Special Services
Task A Architectural Rendering
KHA shall prepare (with the assistance of a graphic artist), an architectural delineation of the proposed Project. An
initial computer wire frame shall be submitted to Owner to verify the content and direction of theperspective. The
final rendering shall then be done in mixed media (ink, acrylics, and watercolor) at approximately 24" x 36" in size.
The original artwork shall then be scanned so that a digital file can be provided to Owner and for reproduction
purposes. The original artwork shall be matted, framed, and delivered to Owner.
Optional Additional Services
Optional Additional Services may be provided by Architect/Consultant, at the sole election and at the express written
direction of Owner, on a negotiated fee basis, such as the following:
(A) Franchise Utility Coordination;
(B) Traffic Impact Studies or Signal Design;
(C) Preparation of Traffic Control Plans;
(D) Revisions due to changes in regulations;
(E) Revisions to previously- approved plans;
(F) Revisions due to increases in Project scope;
(G) Archaeological Survey;
(H) Materials Testing;
(1) Submittal, Permitting Fees, or Impact Fees, other than as called for herein;
(3) Special Site Plan Exhibits/Presentations for Planning Approvals;
(K) Construction Staking;
(L) Off -Site Utility Design;
(M) Off -Site Roadway Design;
(N) Off -Site Easement Descriptions;
(0) Detailed Cost Projections (as prepared by an estimating service);
(P) Record Drawing Survey;
(Q) Preparation of Record Drawings;
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(R) Boundary Surveys;
(S) Wetlands Permitting/Delineation;
(T) Environmental Impact Statement; and/or
(U) Operations and Training Consultation
1.1.2.4 The legal parameters are:
As delineated herein.
1.1.2.5 The financial parameters are as follows.
Architect's/Consultant's compensation for services under this Agreement shall not exceed $86,900.00 for Basic
Services and 54,000.00 for Additional Special Services, totaling the sum of $90,900.00, which sum shall include all
deliverables but shall not include reimbursable expenses. Payment to Architect/Consultant for approved reimbursable
expenses (such as reproduction of plans and specifications, plan distribution, ADA review fees, postage, courier
services, express delivery charges, travel, geo-technical report/soils investigation, and existing conditions/topographic
survey) shall not exceed the sum of $15,000.00 without prior express written approval from Owner.
1.1.2.6 The time parameters are:
Three (3) consecutive months from date of execution of this Agreement, with ability to renew and extend only by
express written agreement of the parties.
1.1.2.7 The proposed procurement or delivery method for the Project is:
Professional services such as architectural planning and consulting will be engaged by negotiated contract.
1.1.2.8 Other time parameters are:
Unless sooner terminated in accordance with the applicable provisions of this Agreement, or extended by mutual
agreement approved by Owner, the term of this Agreement shall be from the date hereof until final completion of the
Project and all architecturallengincenng services in connection therewith, and resolution of any outstanding Project -
related claims or disputes.
1.1.2.9 As to the Project Performance Schedule, time of completion shall be three (3) consecutive months from date of
execution of this Agreement. Architect/Consultant understands and acknowledges that the Project Performance
Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of
services required herein. In this regard, Architect/Consultant shall proceed with sufficient qualified personnel and
consultants necessary to fully and timely accomplish all services required under this Agreement in a manner that is
consistent with professional skill and care and the orderly progress of the Project, excepting delays beyond
Architect's/Consultant's control.
1.1.3 PROJECT TEAM
1.1.3.1 Owner's Designated Representative is:
James Hemenes, RLA, Park Planner
City of Round Rock Parks Department
605 East Palm Valley Boulevard
Round Rock, Texas 78664
1.1.3.2 The persons or entities, in addition to Owner's Designated Representative, who are required to review
Architect's/Consultant's submittals to Owner are:
City Manager James Huse
221 East Main Street -
Round Rock, Texas 78664
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1.1.3.3 Owner's other consultants and contractors are:
Not selected at this time.
1.1.3.4 Architect's/Consultant's Designated Representatives are:
Thomas L. Whalen, Production Manager
Kimley -Horn and Associates, Inc.
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251
Mark C. Hatchel, RLA, ASLA, Associate and Senior Project Manager
Kimley -Horn and Associates, Inc.
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251
1.1.3.5 The consultants retained at the Architect's/Consultant's expense are:
Davis and Davis, Inc.
Counsilman - Hunsaker & Associates, Inc.
The Core Group
Jim Weathers Consulting
1.1.4 When the services under this Agreement include contract administration services, it is intended that the General
Conditions of the Contract for Construction shall be the standard AIA Document as modified between Owner and
Contractor. Architect's/Consultant's responsibility to provide services for the construction phase under this
Agreement commences with the award of the contract for construction and terminates at the issuance to Owner of the
final certificate for payment. Duties, responsibilities and limitations of authority of Architect/Consultant shall not
be restricted, modified or extended without written agreement of Owner and Architect/Consultant with consent of
Contractor, which consent shall not be unreasonably withheld.
1.1.5 The information contained in this Article 1.1 may be reasonably relied upon by Owner and Architect/Consultant in
determining Architect 's /Consultant's compensation. However, it is expressly agreed and understood by all parties
that the total sum of $90,900.00, plus reimbursable expenses in the total sum of $15,000.00 shall represent the
absolute limit of Owner's liability to Architect/Consultant, unless same shall be changed by Supplemental Agreement
hereto. Any such Suppletental Agreement to this Agreement must be duly authorized by City Council resolution.
ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES
1.2.1 Owner and Architect/Consultant shall cooperate with one another to fulfill their respective obligations under this
Agreement. Both parties shall endeavor to maintain good working relationships among all members of theProject
team.
1.2.2 OWNER
1.2.2.1 Unless othenvise provided under this Agreement, Owner shall provide full information in a timely manner regarding
requirements for and limitations on the Project. Owner shall furnish to Architect /Consultant, within fifteen (15) days
after receipt of a written request, information necessary and relevant for Architect/Consultant to evaluate, give notice
of or enforce lien rights.
1.2.2.2 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.
1.2.2.3 Owner's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Owner's behalf with
respect to the Project. Owner or Owner's Designated Representative shall render decisions in a timely manner
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pertaining to documents submitted by Architect/Consultant in order to avoid unreasonable delay in the orderly and
sequential progress of the Architect's/Consultant's services.
1.2.2.4 Owner shall furnish the services of consultants other than those designated in Paragraph 1.1.3 or authorize
Architect/Consultant to fumish them as a Change in Services when such services are requested by Architect/Consultant
and are reasonably required by the scope of the Project and are approved by Owner.
1.2.2.5 Unless otherwise provided in this Agreement, and if requested in writing, Owner shall furnish or pay for tests,
inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests,
tests for air and water pollution, and tests for hazardous materials.
1.2.2.6 Owner shall furnish all legal, insurance and accounting services, including auditing services, that maybe reasonably
necessary at any time for the Project to meet Owner's needs and interests.
1.2.2.7 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 in Architect's/Consultant's Instruments of Service.
1.2.2.8 Owner shall famish, or direct Architect/Consultant to obtain at Owner's expense, a certified survey of the selected
site giving, as required, grades and lines of streets, alleys, pavements and adjoining property; rights -of -way,
restrictions, easements, encroachments, zoning, deed restrictions, boundaries, contours and other data pertaining to
existing buildings or adjacent to the site, other improvements and trees; and full information as to available service
and utility lines, both public and private, and test borings, pits, reports and soil bearing values and other necessary
operations for determining subsoil conditions.
1.2.2.9 Owner will furnish building permits without charge. Electrical, plumbing and other trade permits will be the
responsibility of the construction contractor. Any charges which may be assessed for tap fees will be paid by Owner
and are not to be included by Architect/Consultant in the specifications for the Project.
1.2.2.10 Owner will provide Architect/Consult ant with miscellaneous items such as the Project Facility Program, two(2) copies
of the City of Round Rock General and Supplementary Conditions for Building Construction, Instructions to Bidders,
Proposal Forms, Wage Rates, Contract and Bond Forms, Bid Advertisement Form, and such other information and
materials as may be necessary and practicable for the orderly and expeditious progress of the work and the awarding
of the construction contract. To the extent practicable, these documents shall be utilized in the preparation of the
construction documents.
1.2.2.11 Because Architect/Consultant does not control the costs of labor, materials, equipment, services furnished by others,
methods of determining prices, competitive bidding or market conditions, any opinions rendered as to costs shall be
made on the basis of its experience and shall represent its judgment as an experienced and qualified professional.
However, Architect/Consultant does not guarantee that proposals, bids or actual costs will not vary from its opinions
of costs. If Owner wishes greater assurance as to the amount of any cost, Owner shall have the right to employ an
independent cost estimator.
1.23 ARCHITECT /CONSULTANT
1.23.1 The services performed by Architect/Consultant, Architect 's /Consultant's employees and Architect's/Consultant's
subconsultants shall be as enumerated in Paragraphs 1.1.2.3 and 1.2.4 and as enumerated elsewhere herein, in attached
and accompanying documents, in supplemental documents, and in related documents.
1.23.2 Architect's/Consultant's services shall be performed as expeditiously as is consistent with professional skill and care
and the orderly progress of the Project. Architect/Consultant shall submit for Owner's approval a schedule for the
performance of Architect's/Consultant's services which initially shall be consistent with the time periods established
in Paragraph 1.1.2.6 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 Owners review, for the performance of Owner's
consultants, and for approval of submissions by authorities having jurisdiction over the Project. Time limits
established by this schedule approved by Owner shall not, except for reasonable cause, be exceeded by
Architect/Consultant or Owner.
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1.233 Architect's/Consultant's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on
Architect's/Consultant's behalf with respect to the Project.
1.23.4 Architect/Consultant shall maintain the confidentiality of in fonnation specifically designated as confidential by Owner,
unless withholding such information would violate the law, create the risk of significant harm to the public or prevent
Architect /Consultant from establishing a claim or defense in an adjudicatory proceeding. Architect/Consultant shall
require of Architect's/Consultant's subconsultants similar agreements to maintain the confidentiality of information
specifically designated as confidential by Owner.
1.23.5 Except with Owner's knowledge and consent, Architect/Consultant shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise Architect's/Consultant's
professional judgment with respect to this Project.
1.23.6 Architect/Consultant shall review laws, codes, and regulations applicable to Architect's/Consultant's services.
Architect/Consultant shall respond in the design of the Project to requirements imposed by governmental authorities
having jurisdiction over the Project.
1.23.7 Architect /Consultant shall be entitled to reasonably rely on the accuracy and completeness of services and in formation
furnished by 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.
1.2.4 ARCHITECT'S /CONSULTANT'S SERVICES
1.2.4.1 Basic Services.
(I) Architect's/Consultant's Basic Services consist generally of the services described below, and include such other
services as may be necessary to assist Owner in the design and construction of the Project, within the limits Owner
has budgeted or will budget therefor, and in compliance with the Project Facility Program, which is hereby made a
part of this Agreement for all purposes. Architect/Consultant agrees that upon execution of this Agreement, it will
submit to Owner within ten (10)days a list of all additional consultants it intends to utilize, not previously identified,
delineating their respective tasks. All of Architect 's /Consultant's subconsultants shall be subject to the approval of
Owner through its Director of Public Works, and Owner reserves the right to reject any consultant.
Architect/Consultant shall perform all work hereunder in a manner satisfactory and acceptable to Owner, represented
by its Director of Public Works or his/her designee, hereinafter referred to as "Director." A Performance Schedule
shall be agreed to by Architect/Consultant and Director, and Architcct/Consultant agrees to use its best efforts to
complete all services hereunder in accordance with such Performance Schedule.
1.2.4.2 Schematic Design Phase. Architect/Consultant shall provide the following schematic design phase services:
(
Architect/Consultant shall prepare Schematic Design Documents based upon the approved Master Plan and Program
Documents to include outline Specifications for elements of the Project forconsideration and approval by the Director.
Five (5) copies each of said documents will be submitted for distribution, each consisting of drawings and other
documents to fix and describe the size, cross sections and character of the Project as to architectural, structural,
mechanical and electrical systems, materials, and such other essentials as may be necessary and appropriate. The
Schematic Design Phase shall be completed within the agreed Performance Schedule.
(2) Architect/Consultant shall submit to City a Revised Statement of Probable Construction Cost in a form acceptable to
the Director. Any variance in the estimated construction costs that will adversely affect the established Project Budget
will be submitted to the Director with appropriate comments and recommendations prior to beginning the Phase Two
Construction Documents Phase.
1.2.43 Project Representation Beyond Basic Services. In the event that circumstances should develop whereby continuous,
full -time representation at the Project site is required, the conditions under which such representation shall be
furnished and the Project Representatives selected, employed and directed shall be governed by an additional written
Supplemental Agreement between Owner and Architect/Consulmnt.
1.2.4.4 Add itional Services. Architect/Consultant shall perform Additional Services, as requested by Owner, after a not
exceed amount has been mutually agreed upon in writing by the Director and Architect/Consultant. Where City
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Council authorization is required, Architect/Consultant shall not proceed until the appropriate Resolution for such
Additional Services has been adopted. The following services are not covered under Paragraphs 1.2.4.1 - 1.2.4.2,
which define and outline Architect's /Consultant's Basic Services. If any of these Additional Services are authorized
in writing by the Director in advance of their performance, they shall be paid for in the manner agreed to at the time
of authorization.
(1) Preparing Change Orders and supporting data and/or revising previously approved plans when the changes in
approved Plans and Specifications are required by Owner, unforeseen circumstances due to hidden or unknown
conditions, or codes/ordinances or other legal requirements which may come into effect during the course of the
Project. If changes are required to be made because of error, oversight, clarification, discrepancy, or budget overruns
in the work of Architect/Consultant, Owner shall not be liable to compensate Architect/Consultant for Additional
Services or expenses in such connection.
(2) Providing other extraordinary professional services over and above the Contract Documents requirements, where
required and requested by Owner, including extraordinary professional services which might result if Owner decides
to "fast track" the Project.
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 Owner
of all elements of the Project designed or specified by Architect/Consultant.
1.3.1.2 The Cost of the Work shall include the cost at reasonable current market rates of labor and materials furnished by
Owner and equipment designed, specified, selected or specially provided for by Architect/Consultant, including the
costs of management or supervision of construction or installation provided by a separate construction manager or
contractor, plus for Contractors overhead and profit.
13.13 The Cost of the Work does not include the compensation of Architect/Consultant and Architect's/Consultant's
subconsultants, the costs of the land, rights -of -way and financing or other costs that are the responsibility of Owner.
13.2 USE OF DOCUMENTS
13.2.1 All documents, including but not limited to drawings, specifications and data or programs stored electronically,
prepared by Architect/Consultant and its subconsultants are related exclusively to the services described in this
Agreement and are intended to be used with respect to this Project. However, it is expressly understood and agreed
by and between the parties hereto that all of Architect's/Consultant's designs and work product under this Agreement
(including but not limited to tracings, drawings, estimates, specifications, investigations, studies and other documents,
completed or partially completed), shall be the property of Owner to be thereafter used in any lawful manner as Owner
elects. Any such subsequent use made of documents by Owner shall be at Owner's sole risk and without liability to
Architect/Consultant, and Owner shall indemnify and hold harmless Architect/Consultant from all claims, damages,
losses and expenses, including but not limited to attomeys fees, resulting therefrom.
By execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement,
Architect/Consultant 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 Architect/Consultant. Architect/Consultant shall be liable to Owner for any loss or damage to any such
documents while they are in the possession of or while being worked upon by Architect/Consultant or anyone
connected with Architect/Consultant, including agents, employees, consultants or subcontractors. All documents so
lost or damaged shall be replaced or restored by Architect/Consultant without cost to Owner.
13.2.2 Upon execution of this Agreement, Architect/Consultant grants to Owner permission to reproduce
Architect's/Consultant's Instruments of Service for purposes of constructing, using and maintaining the Project,
provided that Owner shall comply with its obligations, including prompt payment of all sums when due, under this
Agreement. Architect/Consultant shall obtain similar permission from Architect's/Consultant's subconsultants
consistent with this Agreement. If and upon the date Architect/Consultant is adjudged in default of this Agreement,
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Owner is permitted to authorize other similarly credentialed design professionals to reproduce and, where permitted
by law, to make changes, corrections or additions to the Instruments of Service for the purposes of completing, using
and maintaining the Project.
1.3.2.3 Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to another
party without the prior written agreement of Architect/Consultant. However, Owner shall be permitted to authorize
the contractor, subcontractors, sub - subcontractors and material or equipment suppliers to reproduce applicable
portions of the Instruments of Service appropriate to and for use in their execution of the Work. 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 Owner's sole risk and
without liability to Architect/Consultant and its consultants.
13.2.4 Prior to Architect/Consultant providing to Owner any Instruments of Service in electronic form or Owner providing
to Architect/Consultant any electronic data for incorporation into the Instruments of Service, Owner and
Architect/Consultant shall by separate written agreement set forth the specific conditions governing the format ofsuch
Instruments of Service or electronic data, including any special limitations not otherwise provided in this Agreement.
Any electronic files are provided by Architect/Consultant for the convenience of Owner, and use of them is at Owner's
sole risk. In the case of any defects in electronic files or any discrepancies between them and any hardcopy of the
same documents prepared by Architect/Consultant, the hardcopy shall prevail. Only printed copies of documents
conveyed by Architect/Consultant shall be relied upon. Because data stored in electronic media format can deteriorate
or be modified without authorization of the data's creator, Owner shall have sixty (60) days to perform acceptance
tests, after which time Owner is deemed to have accepted the data transferred.
13.2.5 All plans and drawings will be prepared and submitted by Architect/Consultant to Owner for approval on a minimum
24 -inch by 36 -inch or maximum 32 -inch by 42 -inch drafting sheet, with all lettering processed in ink or pencil and
clearly legible when the sheets are reproduced and reduced to half size.
13.2.6 Architect/Consultant shall have no liability for changes made to the drawings by other architects subsequent to the
completion of the Project. Any such change shall be sealed by the architect making that change and shall be
appropriately marked to reflect what was changed or modified.
133 CHANCE IN SERVICES
133.1 Change in Services of Architect/Consultant, including services required of Architect's/Consultant's subconsultants,
may be accomplished after execution of this Agreement, without invalidating theAgreetnent, if mutually agreed in
writing. It is expressly agreed and understood by all parties that the total sum of $90,900.00, plus reimbursable
expenses in the total sum of $15,000.00 shall represent the absolute limit of Owner's liability to Architect/Consultant,
unless same shall be changed by Supplemental Agreement hereto. Any such Supplemental Agreement to this
Agreement must be duly authorized by City Council resolution.
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 ofa lien arising out of Architect's/Consultant's services, Architect/Consultant
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 Ownerand Architect/Consultant shall endeavor to resolve claims, disputes and other matters in question behveen 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.
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13.5 ARBITRATION
13.5.1 Owner and Architect/Consultant hereby expressly agree that no claims or disputes between Owner and
Architect/Consultant arising out of or relating to the contract documents or a breach thereof 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, Architect/Consultant consents to be joined in the arbitration proceeding if
Architect's/Consultant'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 Architect /Consultant and Owner waive consequential damages for claims, disputes or other matters in question arising
out oforrelating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages
due to either party's termination in accordance with Paragraph 1.3.7.
13.7 TERMINATION OR SUSPENSION
13.7.1 If Owner fails to make payments to Architect/Consultant 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 Architect/Consultant elects to suspend services, prior to suspension of services, Architect/Consultant
shall give fifteen (15) days' written notice to Owner. In the event of a suspension of services, Architect/Consultant
shall have no liability to Owner for delay or damage caused Owner because of such suspension of services. Before
resuming services, Architect/Consultant shall be paid all non - disputed sums due prior to suspension
Architect' s / Consultant's fees for the remaining services and thetimeschedules shall be equitably adjusted. However,
it is expressly agreed and understood by all parties that the total sum of $90,900.00, plus reimbursable expenses in
the total sum of $15,000.00 shall represent the absolute limit of Owner's liability to Architect/Consultant, unless
same shall be changed by Supplemental Agreement hereto. Any such Supplemental Agreement to this Agreement
must be duly authorized by City Council resolution.
13.7.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Architect/Consultant
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 Architect/Consultant, with the
understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement
shall cease. Architect/Consultant 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 the receipt 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 a new architect for continuation of services on the Project, Architect/Consultant
shall cooperate in providing information.
13.73 Nothing contained in Paragraph 1.3.7.2 immediately above 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 Architect/Consultant when
Architect/Consultant 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 Architect/Consultant is in default, including the right to bring legal action for
damages or to force specific performance of this Agreement.
13.8 PAYMENTS TO ARCHITECT /CONSULTANT
13.8.1 Payments on account of services rendered and for Reimbursable Expenses incurred shall be made monthly upon
presentation of Architect's/Consultant's statement of services. Architect's/Consultant's invoices to Owner shall
provide complete information and documentation to substantiate Architect's/Consultant's charges, and shall be in
a form specified by Owner. All payments to Architect/ Consultant shall be made on the basis of the invoices submitted
by ArchitectlConsultant and approved by Owner's Director. Such invoices shall conform to the schedule of services
and costs in connection therewith.
10
1.3.8.2 Reimbursable Expenses are in addition to compensation for Architect's/Consultant's services and include expenses
incurred by Architect/Consultant and its employees and consultants directly related to the Project, as identified herein:
.1 transportation in connection with the Project, authorized out -of -town travel, and electronic communications;
.2 reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service;
.3 reimbursable expenses as designated in Article 1.4;
.4 other similar direct Project related expenditures.
1.3.8.3 Records of Reimbursable Expenses, of expenses pertaining to a Change in Services, and of services performed on
the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to Owner or Owner's authorized
representative at mutually convenient times. All Reimbursable Expenses shall be clearly shown on invoices. Should
additional backup material be requested by Owner, Architect/Consultant shall comply promptly with such request.
In this regard, should Owner's Director determine it necessary, Architect/Consultant shall make all records and books
relating to this Agreement available to Owner for inspection and auditing purposes.
1.3.8.4 Direct Personnel Expense is defined as the direct salaries of Architect's/Consultant's personnel engaged on the
Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such
as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, employee
retirement plans and similar contributions.
13.8.5 Owner reserves the right to correct any error that may be discovered in any invoice that may have been paid to
Architect/Consultant and to adjust the same to meet the requirements of this Agreement. Following approval of
invoices, Owner will endeavor to pay Architect/Consultant promptly, but not later than the time period required under
the Texas Prompt Payment Act; however, under no circumstances shall Architect/Consultant beentitled to receive
interest on payments which are late because of a good faith dispute between Architect/Consultant and Owner or
because of amounts which Owner has a right to withhold under this Agreement or state law.
13.8.6 Owner may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes)
lawfully due to Owner from Architect/Consultant, regardless of whether the amount due arises pursuant to this
Agreement or otherwise and regardless of whether the debt due to Owner has been reduced to judgment by a court.
13.8.7 Records of Architect/Consultant pertaining to this Project, and records of accounts between Owner and
Architect/Consultant, shall be kept on a generally recognized accounting basis and shall be available to Owner or its
authorized representatives at mutually convenient times.
13.9 INDEMNIFICATION
13.9.1. Architect' s / Consultant 'sResponsibility forWork. Approval byOwner shall not constitute nor be deemed a release
of the responsibility and liability of Architect/Consultant, its employees, subcontractors, agents and subconsultants
for the accuracy and competency of their Designs, Working Drawings, Specifications or other documents and work;
nor shall such approval be deemed to be an assumption of such responsibility by Owner for any defect, error or
omission in the Designs, Working Drawings, and Specifications or other documents prepared by Architect/Consultant,
its employees, subcontractors, agents and subconsultants.
1.3.9.2 Indemnification (Damage Claims). Architect/Consultant agrees to defend, indemnify and hold Owner, its officers,
agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal
injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any
person or persons, that may arise out of or be occasioned by Architect's/Consultant's breach of any of the terms or
provisions of this Agreement, or by any negligent act or omission of Architect/Consultant, its officers, agents,
associates, employees or subconsultants, in the performance of this Agreement; except that the indemnity provided
for in this paragraph shall not apply to any liability resulting from the negligence of Owner, its officers, agents,
employees or separate contractors, and in the event of joint and concurrent negligence of both Architect/Consultant
and Owner, 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 Owner under Texas law and
without waiving any defenses of the parties under Texas law. The provisions of this paragraph 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.
13.93 Indemnification (Patent and Copyright Claims ).Architect /Consultant agrees to completely defend and indemnify
Owner, its officers, agents and employees, against a claim that any of the Designs, Plans or Specifications prepared
by Architect/Consultant, its employees, associates or subconsultants, pursuant to this Agreement infringe a U.S. patent
or copyright directly, indirectly or contributorily. Architect/Consultant will pay any and all resulting costs, damages
and attorney's fees finally awarded, provided that:
(1) Owner promptly notifies Architect/Consultant in writing of the claim; and
(2) Architect/Consultant has sole control of the defense and all related settlement negotiations.
(3)
(a) If Architect/Consultant defends Owner against such claims, the City Attorney of Owner shall be
kept informed of settlement negotiations, and shall execute any settlement agreement reached by
Architect/Consultant on Owner's behalf.
(b)
13.10 INSURANCE
Architect's/Consultant's defense and indemnification under this section is conditioned on
Owner's agreement that if any of the Designs, Plans or Specifications, become, or in Architect's
opinion are likely to become, the subject of such a claim, Owner will permit
Architect/Consultant, at Architect's/Consultant's option and expense, either to procure the right
for Owner to continue using the designs, plans or specifications or to replace or modify the same
so that they become non - infringing; and if neither of the foregoing alternatives is available on
terms which are reasonable in Architect's/Consultant's judgment, Owner, to the extent Owner
is legally able to do so, will cease using the Designs, Plans or Specifications on written request
of Architect/Consultant, in which instance Owner has the sole option to either require
Architect/Consultant to perform new design work at Architect's/Consultant's sole expense, or
to terminate this Agreement.
(c) Architect /Consultant has no liability under this section for any claim of infringement based upon
the modification or alteration of the Designs, Plans or Specifications prepared under this
Agreement subsequent to the Project by Owner, or by any engineering consultant subsequently
employed by Owner.
(d) The foregoing states the entire obligation of Architect/Consultant with respect to infringement
of patents and copyrights.
The indemnification and defense provisions as set forth in this Paragraph 1.3.9 shall not apply to products
or materials which Owner has required that Architect/Consultant includes in any of the Designs, Plans and
Specifications, or which are substituted by Contractor or any of its subcontractors during the Construction
Phase of this Agreement.
13.10.1 Insurance. Architect/Consultant, at its sole cost, shall have and maintain during the term of this Agreement
professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized
to do insurance business in Texas and otherwise acceptable to Owner.
13.10.2 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Architect/Consultant,
Architect/Consultant shall require each subconsultant performing work under this Agreement to maintain during the
tern of this Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in
Paragraph 1.3.10.1 above, including the required provisions and additional policy conditions as shown below in
Paragraph 1.3.10.3. As an alternative, Architect/Consultant may include its subconsultants as additional insureds on
its own coverages as prescribed under these requirements. Architect's/Consultant's certificate of insurance shall note
in such event that the subconsultants are included as additional insureds.
Architect/Consultant shall obtain and monitor the certificates of insurance from cach subconsultant in order to assure
compliance with the insurance requirements Architect/Consultant must retain the certificates of insurance for the
12
duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its
subconsultants. Owner shall be entitled, upon request and without expense, to receive copies of these certificates of
insurance.
13.103 Insurance Policy Endorsements. Each insurance policy under Paragraph 1.3.10.1 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 Owner by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Architect/Consultant shall also notify Owner, 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 Owner for payment of any
premiums or assessments for any deductibles which all are at the sole responsibility and risk of
Architect/Consultant.
(3)
The Term "City" or "City of Round Rock "shall include all authorities, Boards, Commissions, Departments,
and officers of Ownerand 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 Owner,
to any such future coverage, or to Owner's Self- Insured Retentions of whatever nature.
13.10.4 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Architect/Consultant
shall be home solely by Architect/Consultant, with certificates of insurance evidencing such minimum coverage in
force to be filed with Owner. Such Certificates of Insurance are evidenced as Exhibit "A" entitled "Certificates of
Insurance."
ARTICLE 1.4 COMPENSATION
1.4.1 For Architect's/Consultant's services as comprehensively described herein, compensation shall be computed as
follows:
Architect's/Consultant's compensation for services under this Agreement shall not exceed $86,900.00 for Basic
Services and $4,000.00 for Additional Special Services, totaling the sum of $90,900 00, which sum shall include all
deliverables but shall not include reimbursable expenses. Payment to Architect/ Consultant for approved reimbursable
expenses (such as reproduction of plans and specifications, plan distribution, ADA review fees, postage, courier
services, express delivery charges, travel, geo-technical report/soils investigation, and existing conditions/topographic
survey) shall not exceed the sum of $15,000.00 without prior written approval from Owner.
1.4.2 If the services of Architect/Consultant are changed as described in Paragraph 1.33, Architect's/Consultant's
compensation shall be adjusted. Such adjustment shall be calculated as described below.
1.43 For a Change in Services of Architect's/Consultant's subconsultants, compensation shall be computed as a multiple
of one (1.00) times the amounts billed to Architect/Consultant for such services.
1.4.4 For Reimbursable Expenses as described herein, and any other items included in Article 1.4 as Reimbursable
Expenses, the compensation shall be computed as a multiple of one (1.00) times the expenses incurred by
Architect/Consultant and its employees and subconsultants.
1.4.5 Other Reimbursable Expenses, if any, are as follows: Technical use of computers for design, analysis, and graphics
shall be billed at the rate of $25.00 per hour.
13
1.4.6 An initial payment of Zero and No /100 Dollars ($ 0 00) shall be made upon execution of this Agreement and is the
minimum payment under this Agreement. Subsequent payments for services shall be made monthly and, where
applicable, shall be in proportion to services performed on the basis set forth in this Agreement.
1.4.7 Payments are due and payable thirty (30) days from the date of Architect's/Consultant'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 Architect/Consultant
One percent (1 %) per month
(Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other
regulations at Owner's and Architect's /Consultant'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)
1.4.8 No deductions shall be made from Architect's/Consultant's compensation on account of penalty, liquidated damages
or other sums withheld from payments to contractors.
1.4.9 No additions shall bemade to Architect's/Consultant's compensation based upon Project construction claims, whether
paid by Owner or denied.
ARTICLE 1.5 MISCELLANEOUS PROVISIONS
1.5.1 This Agreement shall be governed by the laws of the state of Texas, and venue shall lie in Williamson County, Texas.
This Agreement contains the entire and fully integrated agreement between the parties hereto and supersedes all prior
and contemporaneous negotiations, representations, agreements, or understandings, whether written or oral. This
Agreement may be supplemented or amended only by a written document executed by both parties and implemented
in accordance with provisions herein. Any provision in this Agreement which is prohibited or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other
jurisdiction. The non - enforcement of any provision by either party shall not constitute a waiver of that provision nor
shall it affect the enforceability of that provision or of the remainder of this Agreement.
1.5.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have
accrued and 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 begin to run any later than the date when Architect's/Consultant's services are substantially completed.
1.5.3 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third
party against either Owner or Architect/Consultant.
1.5.4 Unless otherwise provided in this Agreement, Architect and Architect's/Consultant's subconsultants shall have no
responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous
materials or toxic substances in any form at the Project site. It is expressly understood and agreed by and between the
parties hereto that Owner does not request or require that Architect/Consultant undertake or perform any services,
studies or tests, or make any determinations involving hazardous substances or conditions, as defined by federal or state
law. Therefore, Architect/Consultant undertakes no such obligation, and Owner agrees to indemnify and hold harmless
Architect/Consultant from and against any claims, losses, damages, liability, and costs arising out of or in any manner
connected with the presence, discharge, release, or escape of hazardous substances or conditions of any kind, or
environmental liability of any nature, in any manner related to services performed by Architect/Consultant. If any
hazardous substance or condition is observed by Architect/Consultant, it maybe permitted by Owner to cease services
until the hazardous substance or condition has been eliminated. Architect/Consultant shall have theobligation to notify
Owner of any such substance or condition of which Architect/Consultant becomes aware, and Owner shall be
responsible for its elimination.
1.5.5 Architect /Consultant shall have the right to include photographic or artistic representations of the design of the Project
among the Architect's/Consultant's promotional and professional materials. Architect/Consultant shall be given
reasonable access to the completed Project to make such representations. However, Architect's/Consultant's materials
14
shall not include Owner's confidential or proprietary information if Owner has previously advised Architect/Consultant
in writing of the specific information considered by Owner to be confidential or proprietary. Owner shall provide
professional credit for Architect/Consultant in Owner's promotional materials for the Project.
1.5.6 If Owner requests Architect/Consultant to execute certificates, the proposed language of such certificates shall be
submitted to Architect/Consultant for review at least fourteen (14) days prior to the requested dates of execution.
Architect/Consultant shall not be required to execute certificates that would require knowledge, services or
responsibilities beyond the scope of this Agreement.
1.5.7 Owner and Architect/Consultant, respectively, bind themselves, their partners, successors, assigns and legal
representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives
of such other party with respect to all covenants of this Agreement. Nothing in this Agreement shall be construed to
give any rights or benefits in this Agreementto anyone other than Architect/Consultant and Owner, and all duties and
responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and
Architect /Consultant and not for the benefit of any other party. Neither Owner nor Architect /Consultant shall assign,
sublet or transfer any rights under or interest in this Agreement without the written consent of the other, except that
Owner may assign this Agreement to an institutional lender providing financing for the Project. In such event, the
lender shall assume Owner's rights and obligations under this Agreement. Architect/Consultant shall execute all
consents reasonably required to facilitate such assignment.
1.5.8 Architect/Consultant, its subconsultants, agents, employees and subcontractors, shall comply with all applicable
federal and state laws, the Charter and ordinances of the City of Round Rock, in effect at applicable times, and with
all applicable rules and regulations promulgated by all local, state and national boards, bureaus and agencies.
Architect/Consultant shall further obtain all permits and licenses required in the performance of the professional
services contracted for herein.
1.5.9 Architect/Consultant shall pay any taxes required by law arising by virtue of services performed hereunder. Owner
is qualified for exemption pursuant to provisions of §I51.309 of the Texas Limited Sales, Excise, and Use Tax Act.
1.5.10 Architect/Consultant covenants and represents that Architect/Consultant, its officers, employees, agents,
subconsultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any
product, materials or equipment that will be recommended or required for the design or construction of the Project.
1.5.11 All notices and correspondence to Owner by Architect/Consultant shall be mailed or delivered as follows:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
All notices and correspondence from Owner to Architect/Consultant shall be mailed or delivered as follows:
Kimley -Hom and Associates, Inc. (KHA)
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251
This Agreement entered into as of the day and year first written above.
By:
well, ayor
OWNER ARCHITECT /CONSULTANT
CITY OF ROUN t ROCCC� EXAS
,e
Christine R. Martinez, City Secretary
15
By:
KIMLEY -HO N 3 ASSO ATES, INC.
Thomas L. Whalen, Production Manager
CERTIFICATE OF LIABILITY INSURANCE
PRODUCER
ABERCROMBIE INSURANCE AGENCY, INC.
P. 0. BOX 5857
JACKSONVILLE, FL 32247 -5857
INSURED
KIMLEY — HORN AND ASSOCIATES, INC.
P. 0. BOX 33068
RALEIGH, NC 27636 -3068
THIS IS TO CERTIFY THAT the Insured named above is insured by the Companies listed above with respect to the business
operations hereinafter described, for the types of insurance and in accordance with the provisions of the standard policies used
by the companies, and further hereinafter described. Exceptions to the policies are noted below.
CO TYPE OF INSURANCE POLICY NUMBER
LTR
A
GENERAL LIABILITY
EXCESS LIABn1TY
OTHER
CERTIFICATE HOLDER: City of Round Rock
221 E. Main Street
Round Rock, Texas 75664
Attn: Christine Martinez
O:1wdox \FORMSIcorr1unl\00033647.DOC
COMPANIES AFFORDING COVERAGE
A. TRAVELERS PROPERTY CASUALTY INS CO (A++)
B.
C.
D.
Date: 1/17/03
EFFECTIVE EXPIRATION LIMITS
DATE DATE
GENERAL AGGREGATE 52,000,000
P- 630 - 315X3476 TIL - 02 9/1/02 9/1/03 PRODUCTS COMPIOPAGG. $2,000,000
PERSONAL & ADV. INJURY $ 1,000,000
EACH OCCURRENCE 51,000,000
• FIRE DAMAGE (Any one ttre) $ 500,000
5,000
MED. EXPENSE (Any one person)$
AUTOMOBILE LIABILITY
A CAP- 836G876A -02 9/1/02 9/1/03
DESCRIPTION OF OPERATIONS / LOCATIONS /VEHICLES /SPECIAL ITEMS/EXCEPTIONS
PROJECT: OLD SETTLERS PARK AQUATIC FACILITY, ROUND ROCK, TX.
COMBINED SINGLE LIMIT $ 1,000,000
BODILY INJURY (Per person) $
BODILY INJURY (Per accident) $
PROPERTY DAMAGH $
EACH OCCURRENCE $
AGGREGATE 5
WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY STATUTORY LIMITS
A 836G878 - 3 - 02 9/1/02 9/1/03 EACH ACCIDENT
DISEASE - POLICY LIMIT
DISEASE - POLICY LIMIT
$ 500,000
$ 500,000
$ 500,000
The City of Round Rock is named as additional insured with respect to all policies except Workers' Compensation and Employers'
Liability. Should any of the above described policies be cancelled or changed before the expiration date thereof, the issuing company will
mail thirty (30) days written notice to the certificate holder named below.
SIGNATURE OF AUTHORIZEf)'REPRESENTATIVE
JAMES JAMES E. ABERCR012SIn, JR.
Tie: V, CE— PRESIDENT /AGENT
03/28/2003 TUE 17:07 FAX
•
CERTIFICATE OF LIABILITY INSURANCE Date:1 -28 -03
PRODUCER
BB&T Insurance Services
PO Box 18708
Greensboro, NC 27419
COMPANIES AFFORDING COVERAGE
A. Security Ins. Co of Hartford
B.
[6002.002
INSURED C.
Kitnley -Horn and Associates Inc
PO Box 33068 D,
Raleigh, NC 27636
THIS IS TO CERTIFY THAT the Insured named above is insured by the Companies listed above with respect to the business
operations hereinafter described, for the types of Insurance and in accordance with the provisions of the standard policies used
by the companies, and further hereinafter described. Exceptions to the policies are noted below,
CO TYPE OF INSURANCE POLICY NUMBER EFFECTIVE EXI'IItATION LIMITS
LTR
GENERAL LIABILITY
AUTOMONILE LIABILITY
EXCESS IJABILITY
WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY
OTHER Professional Liability PL 119905
DATE DATE.
DESCRIPTION OF OPERATIONS /LOCATIONS/VEHICLES /SPECIAL 1TBMS /EXCEPTIONS
Old Settlers Park Aquatic Facility
CERTIFICATE HOLDER: City of Round Rock
221 G. Main Street
Round Rock, Texas 78664
Attn: Christine Martinez
O : \W c1Ox\FORMS\c nrr\unIVIN133a67.D0C
GENERAL AGGREGATE 5
PRODUCTS- COMP /OP AGG. 5
PERSONAL At ADV. INIURY S
EACH OCCURRENCE S
FIRE DAMAGE (Any nnc ere) 1
MED. EXPENSE (Any uric pnnuu)S
COMBINED SINGLE LIMIT S
BODILY INJURY (Per pcnun) $
BODILY INJURY (Pcr acndcn.l 6
PROPERTY DAMAGE S
EACH OCCURRENCE 0
AGGREGATE 5
STATUTORY LIMITS
EACH ACCIDENT
DISEASE - POLICY LIMIT
DISEASE - POLICY LIMIT
is
8-1 -02 8 -1 -04 Lima Each cairn: 61,000.000
oil**. Should any of the above described policies be cancelled mennors before the expiration date thereof, the issuing company will
mail thirty (30) days written notice to the certificate holder named below.
SIGNATURE�V E
uTHORIZED P ESENTAT1
Typed Typed Mum:
Tide:
- r, KimleyHorn
11■111111L3 and Associates, Inc.
TEL 972 770 1300
Page 1
Transmittal
Date: March 5, 2003
Project Name:
To: Mr. James Hemenes, Park Planner
We are sending these by
U.S. Mail ® FedEx Hand Deliver
❑ Other:
We are sending you
Attached ❑ Under separate cover via the following items:
Shop Drawings ❑ Prints/Plans El Samples 0 Specifications ❑ Change Orders
® Other: Signature sheets
Copies Date No. Description
2 3/5/03 1 Signature sheet from Professional Services Agreement
These are transmitted as checked below:
® For your use ❑ Approved as submitted i] Resubmit ❑ Copies for approval
® As requested ❑ Approved as noted Submit ❑ Copies for distribution
For review and comment Returned for corrections D Return ❑ Corrected punts
Remarks:
City of Round Rock Parks & Recreation Department
605 E. Palm Valley Blvd.
Round Rock, Texas 78664
Job Number: 000008021
Copy to: File Signed
12700 Park Central Dr.
Suite 1800
Dallas, Texas 75251
FAX 972 239 3820
Transmittal
SVT1VQ
'OOSSH'8 NNOH-
EooZ e 0 ate
GgIA9WOUND ROCK
""s"""'''''"''' ND R IX TDCAS
PARKS Ea RECREATION DEPARTMENT
Date: Friday, February 21, 2003
To: Mr. Mark C. Hatchel, RLA, ASLA
Cc:
From: David Buzzell
RE: OSPV "Family Aquatic Center" Contract (Phase One)
Mark,
Please execute the two (2) original contracts and return them to James as soon as possible.
David Buzzell
Park Designer
City of Round Rock
02/21/2003 1
'ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
Mayor
Nyle Maxwell
Mayor Pro-tem
Tom Nielson
Council Members
Alan McGraw
Carrie Pill
Scot Knight
Isabel Gallahan
Gary Coe
City Manager
Jim Nuse
City Attorney
Stephan L Sheets
March 11, 2003
Mr. Thomas Whalen
Production Manager
Kimley -Horn and Associates, Inc.
12700 Park Central Drive, Suite 1800
Dallas, TX 75251
Dear Mr. Whalen:
The Round Rock City Council approved Resolution No. R- 03- 02 -27-
9F2 at their regularly scheduled meeting on February 27, 2003. This
resolution approves the agreement for the Old Settlers Park at Palm
Valley Family Aquatic Center 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
James Hemenes at 341 -3345.
Enclosure
Christine R. Martinez
City Secretary
CITY OF ROUND ROCK Administrative Dept.. 221 East Main Street • Round Rock. Texas 78664
Phone: 5u.218.5400 • Fax: 512.218.7097 • www.ci.round- rock.tx.us
0 : \Wdox \RBSOLUTI \R30227F2.WPD /ec
RESOLUTION NO. R- 03- 02- 27 -9F2
WHEREAS, the City of Round Rock desires to retain professional
architectural services for the Old Settlers Park at Palm Valley Family
Aquatic Center Project, and
WHEREAS, Kimley -Horn and Associates, Inc. has submitted a
Standard Form of Agreement Between Owner and Architect /Consultant to
provide said services, and
WHEREAS, the City Council desires to enter into said Agreement
with Kimley -Horn and Associates, Inc., Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Standard Form of Agreement Between Owner and
Architect /Consultant with Kimley -Horn and Associates, Inc. for the Old
Settlers Park at Palm Valley Family Aquatic Center Project, 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.
t
RESOLVED this 27th day of February, 2003.
, ./
��EL :Mayor
C y of Round Rock, Texas
CHRISTINE R. MARTINEZ, City Secretary
2
AGREEMENT made as of the
Standard Form of Agreement
Between Owner and Architect/Consultant
1.1 INITIAL INFORMATION
1.2 RESPONSIBILITIES OF THE PARTIES
1.3 TERMS AND CONDITIONS
1.4 COMPENSATION
1.5 MISCELLANEOUS PROVISIONS
BETWEEN Architect's/Consultant's client identified as Owner
Based on
AIA Document B141 -1997
1997 Edition - Electronic Format
TABLE OF ARTICLES
City of Round Rock, Texas
22l East Main Street
Round Rock, Williamson and Travis Counties, Texas 78664
and Architect/Consultant:
Kimley -Hom and Associates, Inc. (KHA)
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251
For the following Project
( ) day of the month of in the year Two Thousand Three.
Phase One professional services generally including coordination and design management, site evaluation and selection
assistance, masterplanning, programming and schematic design activities relating to the following: design and construction
of a new outdoor aquatic facility called the Aquatic Recreation Complex on a siteat or near Old Settlers Park in Round
Rock, Williamson County, Texas.
Owner and Architect/Consultant agree as follows:
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EXHIBIT
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ARTICLE 1.1 INITIAL INFORMATION
1.1.1 This Agreement is based on the following information and assumptions.
1.1.2 PROJECT PARAMETERS
1.1.2.1 The objective or use is:
Design and construction of a new outdoor aquatic facility called the Aquatic Recreation Complex on a site at or near Old
Settler: Park in Round Rock, Williamson County, Texas.
1.1.2.2 The physical parameters are:
Location to be on site at or near Old Settlers Park in Round Rock, Williamson County, Texas.
No environmental assessment, hydraulic studies, floodplain studies, or additional on -site storm water detention should be
required. Water and sanitary sewer are available on -site. Storm drainage is to be directed to the existing drainage channel on
site. Electrical service is to be coordinated with local providers to insure that sufficient power is available on site for the Project,
and Architect/Consultant shall provide load information to assist Owner in coordinating any electrical or gas service
requirements with local providers.
Documents to be furnished to Architect/Consultant shall, when available, include the following: (1) recent master plans
prepared for Old Settlers Park; (2) previous topographic surveys at or near the Aquatic Complex site; (3) previous geo-technical
investigations at or near the Aquatic Complex site; (4) as -built plans and information on existing utilities and other adjacent
park facilities; (5) City of Round Rock landscaping ordinances; (6) a list and copies of relevant municipal standards,
requirements, and ordinances that will govern design of the Project.
1.1.23 Owner's Scope of Services is:
Basic Services include the following:
Task 1 Coordination and Design Management
KHA shall serve as the lead design consultant and project design team manager. Items of work included in this Task
1 are as follow:
(A) Coordinate the survey and geo-technical work;
(B) Assist Owner in defining the project scope, design budgets, and assignment of design team responsibilities;
(C) Organize and lead a one -day visit to a similar facility in the Central Texas area
(D) Perform initial due diligence to determine utility services and Owner requirements;
(E) Manage the Project and direct the consulting team during the Phase One schematic design phase; and
(F) Communicate regularly with Owner.
Task 2 Site Evaluation and Selection
KHA shall assist Owner in evaluating three (3) possible sites for the Aquatic Complex within and/or adjacent to Old
Settlers Park. Items of work included in this Task 2 are as follow:
(A)
(B)
(C)
Review availability and cost implications of infrastructure for each site;
Review impact of the Project on vehicular circulation and parking for each site with respect to existing and
proposed improvements to Old Settlers Park; and
Review impact of the Project on adjacent or planned uses for each site.
Task 3 Master Plan and Programming
KHA and Architect's/Consultant's team [including subcontractors Davis and Davis, Inc. (DDI) and Counsilman-
Hunsaker and Associates (CHA)] shall assist Owner in finalizing the design program and master plan for the Project,
including initial and future phases. Items of work included in this Task 3 are as follow:
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(A) Organize and lead a two -day symposium, including a work session with representatives involved in the
Project, to develop the final features to be included; and, if required, organize and lead one public meeting;
(B) Prepare and present an outline Design Program Analysis including pool configurations, user requirements
and programs, adjacencies and circulation, spectator facilities, hydrostatic relief system, traffic pattems,
deck equipment, underwater features, pool piping and filtration options, and safety and maintenance
equipment;
(C) Programming of the entry building including support spaces, first aid, concessions, maintenance, and
dressing rooms and restrooms; and
(D) Prepare and submit a final Design Program Analysis with conceptual drawings to reflect changes and
comments determined by consensus at a meeting with Owner representatives.
Task 4 Schematic Design
Items of work included in this Task 4 are as follow:
(A)
(B)
(C)
(D)
(E)
(P)
Included Special Services
Prepare schematic plans, sections, and outline specifications for the pools, buildings, and site development
showing dimensions and features;
Provide a statement of probable costs for the pools, buildings, and site development and answer questions
regarding estimated cost data
Provide information on finishes, equipment, lighting, outlets, pool water supply and waste, structural
design, and site utilities;
Meet with Owner representatives to present the schematic design and/or to review design comments;
Finalize the schematic design package to reflect changes and comments detennined by consensus at
meetings with Owner representatives; and
Present Costs and Master Plan to City Council for comment and to detemtine if the Project's scope and
budget will be modified.
Task A Architectural Rendering
KHA shall prepare (with the assistance of a graphic artist), an architectural delineation of the proposed Project. An
initial computer wire frame shall be submitted to Owner to verify the content and direction of theperspective. The
final rendering shall then be done in mixed media (ink, acrylics, and watercolor) at approximately 24" x 36" in size.
The original artwork shall then be scanned so that a digital file can be provided to Owner and for reproduction
purposcs. The original artwork shall be matted, framed, and delivered to Owner.
Optional Additional Services
Optional Additional Services may be provided by Architect/Consultant, at the sole election and at the express written
direction of Owner, an a negotiated fee basis, such as the following:
(A)
(B)
(C)
(D)
(E)
(P)
(G)
(H)
(1)
(J)
(K)
(L)
(M)
(N)
(0)
(P)
(Q)
Franchise Utility Coordination;
Traffic Impact Studies or Signal Design;
Preparation of Traffic Control Plans;
Revisions due to changes in regulations;
Revisions to previously - approved plans;
Revisions due to increases in Project scope;
Archaeological Survey;
Materials Testing;
Submittal, Permitting Fees, or Impact Fees, other than as called for herein;
Special Site Plan Exhibits/Presentations for Planning Approvals;
Construction Staking;
Off -Site Utility Design;
Off -Site Roadway Design;
Off -Site Easement Descriptions;
Detailed Cost Projections (as prepared by an estimating service);
Record Drawing Survey;
Preparation of Record Drawings;
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(R) Boundary Surveys;
(S) Wetlands Permitting/Delineation;
(T) Environmental Impact Statement; and/or
(U) Operations and Training Consultation
1.1.2.4 The legal parameters are:
As delineated herein.
1.1.2.5 The financial parameters are as follows.
Architect's/Consultant's compensation for services under this Agreement shall not exceed $86,900.00 for Basic
Services and $4,000.00 for Additional Special Services, totaling the sum of $90,900.00, which sum shall include all
deliverables but shall not includereimbursable expenses. Payment toArchitect/Consultant for approved reimbursable
expenses (such as reproduction of plans and specifications, plan distribution, ADA review fees, postage, courier
services, express delivery charges, travel, geo technical report /soils investigation, and existing conditions/topographic
survey) shall not exceed the sum of $15,000.00 without prior express written approval from Owner.
1.1.2.6 The time parameters are:
Three (3) consecutive months from date of execution of this Agreement, with ability to renew and extend only by
express written agreement of the parties.
1.1.2.7 The proposed procurement or delivery method for the Project is:
Professional services such as architectural planning and consulting will be engaged by negotiated contract.
1.1.2.8 Other time parameters are:
Unless sooner terminated in accordance with the applicable provisions of this Agreement, or extended by mutual
agreement approved by Owner, the term of this Agreement shall be from the date hereof until final completion of the
Project and all architectural/engineering services in connection therewith, and resolution of any outstanding Project -
related claims or disputes.
1.1.2.9 As to the Project Performance Schedule, time of completion shall be three (3) consecutive months from date of
execution of this Agreement. Architcct/Consultant understands and acknowledges that the Project Performance
Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of
services required herein. In this regard, Architect/Consultant shall proceed with sufficient qualified personnel and
consultants necessary to fully and timely accomplish all services required under this Agreement in a manner that is
consistent with professional skill and care and the orderly progress of the Project, excepting delays beyond
Architect's/Consultant's control.
1.1.3 PROJECT TEAM
1.13.1 Owner's Designated Representative is:
James Hemenes, RLA, Park Planner
City of Round Rock Parks Department
605 East Palm Valley Boulevard
Round Rock, Texas 78664
1.13.2 The persons or entities, in addition to Owner's Designated Representative, who are required to review
Architect 's /Consultant's submittals to Owner are:
City Manager James Huse
221 East Main Street
Round Rock, Texas 78664
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1.1.33 Owner's other consultants and contractors are:
Not selected at this time.
1.13.4 Architect's/Consultant's Designated Representatives are:
1.13.5 The consultants retained at the Architect's/Consultant's expense are
1.1.4 When the services under this Agreement include contract administration services, it is intended that the General
Conditions of the Contract for Construction shall be the standard AIA Document as modified between Owner and
Contractor. Architect's/Consultant's responsibility to provide services for the construction phase under this
Agreement commences with the award of the contract for construction and terminates at the issuance to Owner of the
final certificate for paymcnt. Duties, responsibilities and limitations of authority of Architect/Consultant shall not
be restricted, modified or extended without written agreement of Owner and Architect/Consultant with consent of
Contractor, which consent shall not be unreasonably withheld.
1.1.5 The information contained in this Article 1.1 may be reasonably relied upon by Owner and Architect/Consultant in
detemtining Architect's/Consultant's compensation. However, it is expressly agreed and understood by all parties
that the total sum of $90,900.00, plus reimbursable expenses in the total sum of 515,000.00 shall represent the
absolute limit of Owner's liability to Architect/Consultant, unless same shall be changed 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 Owner and Architect/Consultant shall cooperate with one another to fulfill their respective obligations under this
Agreement. Both parties shall endeavor to maintain good working relationships among all members of theProject
team.
1.2.2 OWNER
Thomas L. Whalen, Production Manager
ICimley -Horn and Associates, Inc.
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251
Mark C. Hatchel, RLA, ASLA, Associate and Senior Project Manager
Kimley -Hom and Associates, Inc.
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251
Davis and Davis, Inc.
Counsilman- Hunsaker & Associates, Inc.
The Core Group
Jim Weathers Consulting
1.2.2.1 Unless otherwise provided under this Agreement, Owner shall provide full information in a timely manner regarding
requirements for and limitations on the Project. Owner shall furnish to Architect/Consultant, within fifteen (15) days
after receipt of a written request, information necessary and relevant for Architect/Consultant to evaluate, give notice
of or enforce lien rights.
1.2.2.2 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.
1.2.2.3 Owner's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on theOwner'sbehalfwith
respect to the Project. Owner or Owner's Designated Representative shall render decisions in a timely manner
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pertaining to documents submitted by Architect/Consultant in order to avoid unreasonable delay in the orderly and
sequential progress of the Architect's/Consultant's services.
1.2.2.4 Owner shall furnish the services of consultants other than those designated in Paragraph 1.1.3 or authorize
Architect /Consultant to furnish them as aChange in Services when such services arerequested by Architect/Consultant
and are reasonably required by the scope of the Project and are approved by Owner.
1.2.25 Unless otherwise provided in this Agreement, and if requested in writing, Owner shall famish or pay for tests,
inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests,
tests for air and water pollution, and tests for hazardous materials.
1.2.2.6 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 Owner's needs and interests.
1.2.2.7 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 in Architect's/Consultant's Instruments of Service.
1.2.2.8 Owner shall furnish, or direct Architect/Consultant to obtain at Owner's expense, a certified survey of the selected
site giving, as required, grades and lines of streets, alleys, pavements and adjoining property; rights -of -way,
restrictions, easements, encroachments, zoning, deed restrictions, boundaries, contours and other data pertaining to
existing buildings or adjacent to the site, other improvements and trees; and full information as to available service
and utility lines, both public and private, and test borings, pits, reports and soil bearing values and other necessary
operations for determining subsoil conditions.
1.2.2.9 Owner will furnish building permits without charge. Electrical, plumbing and other trade permits will be the
responsibility of the construction contractor. Any charges which may be assessed for tap fees will be paid by Owner
and are not to be included by Architect/Consultant in the specifications for the Project.
1.2.2.10 OwnerwillprovideArchitect/ Consultant with miscellaneous items such as the Project Facility Program, two (2) copies
of the City of Round Rock General and Supplementary Conditions for Building Construction, Insructions to Bidders,
Proposal Forms, Wage Rates, Contract and Bond Forms, Bid Advertisement Form, and such other information and
materials as may be necessary and practicable for the orderly and expeditious progress of the work and the awarding
of the construction contract. To the extent practicable, these documents shall be utilized in the preparation of the
construction documents.
1.2.2.11 Because Architect/Consultant dots not control the costs of labor, materials, equipment, services furnished by others,
methods of determining prices, competitive bidding or market conditions, any opinions rendered as to costs shall be
made on the basis of its experience and shall represent its judgment as an experienced and qualified professional.
However, Architect/Consultant does not guarantee that proposals, bids or actual costs will not vary from its opinions
of costs. If Owner wishes greater assurance as to the amount of any cost, Owner shall have the right to employ an
independent cost estimator.
1.2.3 ARCHITECT /CONSULTANT
1.2.3.1 The services performed by Architect/Consultant, Architect 's /Consultant's employees and Architect's/Consultant's
subconsultants shall be as enumerated in Paragraphs 1.1.2.3 and 1.2.4 and as enumerated elsewhere herein, in attached
and accompanying documents, in supplemental documents, and in related documents.
1.2.3.2 Architect's/ Consultant's services shall be performed as expeditiously as is consistent with professional skill and care
and the orderly progress of the Project. Architect/Consultant shall submit for Owner's approval a schedule for the
performance of Architect's/Consultant's services which initially shall be consistent with the time periods established
in Paragraph 1.1.2.6 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 Owner's review, for the performance of Owner's
consultants, and for approval of submissions by authorities having jurisdiction over the Project. Time limits
established by this schedule approved by Owner shall not, except for reasonable cause, be exceeded by
Architect/Consultant or Owner.
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1 233 Architect's/Consultant's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on
Architect's/Consultant's behalf with respect to the Project
1.2.3.4 Architect /Consultant shall maintain theconfidentiality of infonnation specifically designated as confidential by Owner,
unless withholding such information would violate the law, create the risk of significant harm to the public or prevent
Architect/Consultant from establishing a claim or defense in an adjudicatory proceeding. Architect/Consultant shall
require of Architect's/Consultant's subconsultants similar agreements to maintain the confidentiality of information
specifically designated as confidential by Owner.
1.23.5 Except with Owner's knowledge and consent, Architect/Consultant shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise Architect's/Consultant's
professional judgment with respect to this Project.
1.23.6 Architect/Consultant shall review laws, codes, and regulations applicable to Architect 's /Consultant's services.
Architect/Consultant shall respond in the design of the Project to requirements imposed by governmental authorities
having jurisdiction over the Project.
1.2.3.7 Architect/Consultant shall be entitled to reasonably rely on the accuracy and completeness of services and information
furnished by 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.
1.2.4 ARCHITECT'S /CONSULTANT'S SERVICES
1.2.4.1 Basic Services.
(1) Architect's/Consultant's Basic Services consist generally of the services described below, and include such other
services as may be necessary to assist Owner in the design and construction of the Project, within the limits Owner
has budgeted or will budget therefor, and in compliance with the Project Facility Program, which is hereby made a
part of this Agreement for all purposes. Architect/Consultant agrees that upon execution of this Agreement, it will
submit to Owner within ten (10) days a list of all additional consultants it intends to utilize, not previously identified,
delineating their respective tasks. All of Architect's/Consultant's subconsultants shall be subject to the approval of
Owner through its Director of Public Works, and Owner reserves the right to reject any consultant.
Architect/Consultant shall perform all work hereunder in a manner satisfactory and acceptable to Owner, represented
by its Director of Public Works or his/her designee, hereinafter referred to as "Director." A Performance Schedule
shall be agreed to by Architect/Consultant and Director, and Architect/Consultant agrees to use its best efforts to
complete all services hereunder in accordance with such Performance Schedule.
1.2.4.2 Schematic Design Phase. Architect/Consultant shall provide the following schematic design phase services:
(
Architect/Consultant shall prepare Schematic Design Documents based upon the approved Master Plan and Program
Documents to include outline Specifications for elements oftheProject for consideration and approval by the Director.
Five (5) copies each of said documents will be submitted for distribution, each consisting of drawings and other
documents to fix and describe the size, cross sections and character of the Project as to architectural, structural,
mechanical and electrical systems, materials, and such other essentials as may be necessary and appropriate. The
Schematic Design Phase shall be completed within the agreed Performance Schedule.
(2) Architect/Consultant shall submit to City a Revised Statement of Probable Construction Cost in a form acceptable to
the Director. Any variance in the estimated construction costs that will adversely affect the established Project Budget
will be submitted to the Director with appropriate comments and recommendations prior to beginning the Phase Two
Construction Documents Phase.
1.2.43 Project Representation Beyond Basic Services.ln the event that circumstances should develop wherebycontinuous,
full -time representation at the Project site is required, the conditions under which such representation shall be
famished and the Project Representatives selected, employed and directed shall be governed by an additional written
Supplemental Agreement between Owner and Architect/Consultant.
1.2.4.4 Additional Services. Architect/Consultant shall perform Additional Services, as requested by Owner, after a not-to-
exceed amount has been mutually agreed upon in writing by the Director and Architect/Consultant, Where City
7
(1)
Council authorization is required, Architect/Consultant shall not proceed until the appropriate Resolution for such
Additional Services has been adopted. The following services are not covered under Paragraphs 1.2.4.1 - 1.2.4.2,
which define and outline Architect's/Consultant's Basic Services. If any of these Additional Services are authorized
in writing by the Director in advance of their performance, they shall be paid for in the manner agreed to at the time
of authorization.
Preparing Change Orders and supporting data and/or revising previously approved plans when the changes in
approved Plans and Specifications are required by Owner, unforeseen circumstances due to hiddcn or unknown
conditions, or codes/ordinances or other legal requirements which may come into effect during the course of the
Project. If changes are required to be made because oferror, oversight, clarification, discrepancy, or budget overruns
in the work of Architect/Consultant, Owner shall not be liable to compensate Architect/Consultant for Additional
Services or expenses in such connection.
(2) Providing other extraordinary professional services over and above the Contract Documents requirements, where
required and requested by Owner, including extraordinary professional services which might result if Owner decides
to "fast track" the Project.
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 Owner
of all elements of the Project designed or specified by Architect/Consultant.
13.1.2 The Cost of the Work shall include the cost at reasonable current market rates of labor and materials famished by
Owner and equipment designed, specified, selected or specially provided for by Architect/Consultant, including the
costs of management or supervision of construction or installation provided by a separate construction manager or
contractor, plus for Contractor's overhead and profit.
13.13 The Cost of the Work does not include the compensation of Architect/Consultant and Architect's/Consultant's
subconsultants, the costs of the land, rights -of -way and financing or other costs that are the responsibility of Owner.
13.2 USE OF DOCUMENTS
13.2.1 All documents, including but not limited to drawings, specifications and data or programs stored electronically,
prepared by Architect/Consultant and its subconsultants are related exclusively to the services described in this
Agreement and are intended to be used with respect to this Project. However, it is expressly understood and agreed
by and between the parties hereto that all of Architect's/Consultant's designs and work product under this Agreement
(including but not limited to tracings, drawings, estimates, specifications, investigations, studies and other documents,
completed or partially completed), shall be the property of Owner to be thereafter used in any lawful manner as Owner
elects. Any such subsequent use made of documents by Owner shall be at Owner's sole risk and without liability to
Architect/Consultant, and Owner shall indemnify and hold harmless Architect/Consultant from all claims, damages,
losses and expenses, including but not limited to attorneys fees, resulting therefrom.
By execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement,
Architect/Consultant 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 Architect/Consultant. Architect /Consultant shall be liable to Owner for any loss or damage to any such
documents while they are in the possession of or while being worked upon by Architect/Consultant or anyone
connected with Architect/Consultant, including agents, employees, consultants or subcontractors. All documents so
lost or damaged shall be replaced or restored by Architect/Consultant without cost to Owner.
13.2.2 Upon execution of this Agreement, Architect/Consultant grants to Owner permission to reproduce
Architect's/Consultant's Instruments of Service for purposes of constructing, using and maintaining the Project,
provided that Owner shall comply with its obligations, including prompt payment of all sums when due, under this
Agreement. Architect/Consultant shall obtain similar permission from Architect's/Consultant's subconsultants
consistent with this Agreement. If and upon the date Architect/Consultant is adjudged in default of this Agreement,
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Owner is permitted to authorize other similarly credentialed design professionals 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 Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to another
party without the prior written agreement of Architect/Consultant. However, Owner shall be permitted to authorize
the contractor, subcontractors, sub - subcontractors and material or equipment suppliers to reproduce applicable
portions of the Instruments of Service appropriate to and for use in their execution of the Work. 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 Owner's sole risk and
without liability to Architect/Consultant and its consultants.
13.2.4 Prior to Architect/Consultant providing to Owner any Instruments of Service in electronic form or Owner providing
to Architect/Consultant any electronic data for incorporation into the Instruments of Service, Owner and
Architect/Consultant shall by separate written agreement set forth the specific conditions governing the format ofsuch
Instruments of Service or electronic data, including any special limitations not otherwise provided in this Agreement.
Any electronic files are provided by Architect/Consultant for the convenience of Owner, and use of them is at Owner's
sole risk. In the case of any defects in electronic files or any discrepancies between them and any hardcopy of the
same documents prepared by Architect/Consultant, the hardcopy shall prevail. Only printed copies of documents
conveyed by Architect/Consultant shall be relied upon. Because data stored in electronic media format can deteriorate
or be modified without authorization of the data's creator, Owner shall have sixty (60) days to perform acceptance
tests, after which time Owner is deemed to have accepted the data transferred.
13.2.5 All plans and drawings will be prepared and submitted by Architect/Consultant to Owner for approval on a minimum
24 -inch by 36 -inch or maximum 32 -inch by 42 -inch drafting sheet, with all lettering processed in ink or pencil and
clearly legible when the sheets are reproduced and reduced to half size.
13.2.6 Architect/Consultant shall have no liability for changes made to the drawings by other architects subsequent to the
completion of the Project. Any such change shall be sealed by the architect making that change and shall be
appropriately marked to reflect what was changed or modified.
133 CHANGE IN SERVICES
133.1 Change in Services of Architect/ Consultant, including services required of Architect's /Consultant's subconsultants,
may be accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in
writing. It is expressly agreed and understood by all parties that the total sum of $90,900.00, plus reimbursable
expenses in the total sum of$15,000.00 shall represent the absolute limit of Owner's liability to Architect/Consultant,
unless same shall be changed by Supplemental Agreement hereto. Any such Supplemental Agreement to this
Agreement must be duly authorized by City Council resolution.
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 matterrelates to or is the subject ofa lien arising out of Architect's/Consultant's services, Architect/Consultant
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 Ownerand Architect/Consultant 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.
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1.3.5 ARBITRATION
1.3.5.1 Owner and Architect/Consultant hereby expressly agree that no claims or disputes between Owner and
• Architect/Consultant arising out of or relating to the contract documents or a breach thereof 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, Architect/Consultant consents to be joined in the arbitration proceeding if
Architect's/Consultant'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
1.3.6.1 Architect/ Consultant and Owner waive consequential damages forclaims, disputes or other matters in question arising
outoforrelating to this Agreement This mutual waiver is applicable, without limitation, to all consequential damages
due to either party's termination in accordance with Paragraph 1.3.7.
1.3.7 TERMINATION OR SUSPENSION
1.3.7.1 If Owner fails to make payments to Architect/Consultant in substantial compliance with this Agreement, such failure
may be considered substantial nonperformance and cause for suspension of performance of services under this
Agreement. IfArchitect/Consultant elects to suspend services, prior to suspension of services, Architect/Consultant
shall give fifteen (15) days' written notice to Owner. In the event of a suspension of services, Architect/Consultant
shall have no liability to Owner for delay or damage caused Owner because of such suspension ofservices. Before
resuming services, Architect/Consultant shall be paid all non - disputed sums due prior to suspension
Architect' s / Consultant's fees fortheremainingservicesandthetimeschedulesshallbeequitablyadjusted. However,
it is expressly agreed and understood by all parties that the total sum of 590,900.00, plus reimbursable expenses in
the total sum of $15,000.00 shall represent the absolute limit of Owner's liability to Architect/Consultant, unless
same shall be changed by Supplemental Agreement hereto. Any such Supplemental Agreement to this Agreement
must be duly authorized by City Council resolution.
1.3.7.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Architect/Consultant
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 Architect/Consultant, with the
understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement
shall cease. Architect/Consultant 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 the receipt 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 a new architect for continuation of services on the Project, Architect/Consultant
shall cooperate in providing information.
13.73 Nothing contained in Paragraph 1.3.7.2 immediately above 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 Architect/Consultant when
Architect/Consultant 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 Architect/Consultant is in default, including the right to bring legal action for
damages or to force specific performance of this Agreement.
13.8 PAYMENTS TO ARCHITECT /CONSULTANT
13.8.1 Payments on account of services rendered and for Reimbursable Expenses incurred shall be made monthly upon
presentation of Architect's/Consultant's statement of services. Architect's/Consultant's invoices to Owner shall
provide complete information and documentation to substantiate Architect's/Consultant's charges, and shall be in
a form specified by Owner. All payments to Architect/ Consultant shalt be made on the basis of theinvoices submitted
by Architect/Consultant and approved by Owner's Director. Such invoices shall conform to the schedule of services
and costs in connection therewith.
10
13.8.2 Reimbursable Expenses are in addition to compensation for Architect's/Consultant's services and include expenses
incurred byArchitect/Consultantand its employees and consultants directly related to theProject, as identified herein:
.1 transportation in connection with the Project, authorized out -of -town travel, and electronic communications;
.2 reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service;
.3 reimbursable expenses as designated in Article 1.4;
.4 other similar direct Project related expenditures.
1.3.8.3 Records of Reimbursable Expenses, of expenses pertaining to a Change in Services, and of services performed on
the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to Owner or Owner's authorized
r ep,. entative at mutually convenient times. All Reimbursable Expenses shall be clearly shown on invoices. Should
additional backup material be requested by Owner, Architect/Consultant shall comply promptly with such request.
In this regard, should Owner's Director determine it necessary, Architect/Consultant shall make all records and books
relating to this Agreement available to Owner for inspection and auditing purposes.
1.3.8.4 Direct Personnel Expense is defined as the direct salaries of Architect's/Consultant's personnel engaged on the
Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such
as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, employee
retirement plans and similar contributions.
1.3.8.5 Owner reserves the right to correct any error that may be discovered in any invoice that may have been paid to
Architect/Consultant and to adjust the same to meet the requirements of this Agreement. Following approval of
invoices, Owner will endeavor to payArchitect /Consultantpromptly,but not later than the time period required under
the Texas Prompt Payment Act; however, under no circumstances shall Architect/Consultant becntitled to receive
interest on payments which are late because of a good faith dispute between Architect/Consultant and Owner or
because of amounts which Owner has a right to withhold under this Agreement or state law.
13.8.6 Ownermay, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes)
lawfully due to Owner from Architect/Consultant, regardless of whether the amount due arises pursuant to this
Agreement or otherwise and regardless of whether the debt due to Owner has been reduced to judgment by a court.
1.3.8.7 Records of Architect/Consultant pertaining to this Project, and records of accounts between Owner and
Architect/Consultant, shall be kept on a generally recognized accounting basis and shall be available to Owner or its
authorized representatives at mutually convenient times.
13.9 INDEMNIFICATION
13.9.1. Architects /Consultant'sResponsibility for Work. Approvalby Ownershall not constitutenorbedeemedarelease
of the responsibility and liability of Architect/Consultant, its employees, subcontractors, agents and subconsultants
for the accuracy and competency of their Designs, Working Drawings, Specifications or other documents and work;
nor shall such approval be deemed to be an assumption of such responsibility by Owner for any defect, error or
omission in the Designs, Working Drawings, and Specifications or other documents prepared by Architect /Consultant,
its employees, subcontractors, agents and subconsultants.
13.9.2 Indemnification (Damage Claims). Architect/Consultant agrees to defend, indemnify and hold Owner, its officers,
agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal
injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any
person or persons, that may arise out of or be occasioned by Architect's/Consultant's breach of any of the terms or
provisions of this Agreement, or by any negligent act or omission of Architect/Consultant, its officers, agents,
associates, employees or subconsultants, in the performance of this Agreement; except that the indemnity provided
for in this paragraph shall not apply to any liability resulting from the negligence of Owner, its officers, agents,
employees or separate contractors, and in the event of joint and concurrent negligence of both Architect/Consultant
and Owner, 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 Owner under Texas law and
without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the
I1
benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other
person or entity.
1.3.9.3 Indemnification (Patent and Copyright Claims).Architect/Consultant agrees to completely defend and indemnify
Owner, its officers, agents and employees, against a claim that any of the Designs, Plans or Specifications prepared
by Architect/Consultant, its employees, associates orsubconsultants, pursuant to this Agreement infringe a U.S. patent
or copyright directly, indirectly or contributorily. Architect/Consultant will pay any and all resulting costs, damages
and attomey's fees finally awarded, provided that:
(1) Owner promptly notifies Architect/Consultant in writing of the claim; and
(2) Architect/Consultant has sole control of the defense and all related settlement negotiations.
(3)
(a)
(b)
1.3.10 INSURANCE
If Architect/Consultant defends Owner against such claims, the City Attorney of Owner shall be
kept informed of settlement negotiations, and shall execute any settlement agreement reached by
Architect/Consultant on Owner's behalf.
Architect's/Consultant's defense and indemnification under this section is conditioned on
Owner's agreement that if any of the Designs, Plans or Specifications, become, or in Architect's
opinion are likely to become, the subject of such a claim, Owner will permit
Architect/Consultant, at Architect's/Consultant's option and expense, either to procure the right
for Owner to continue using the designs, plans or specifications or to replace or modify the same
so that they become non - infringing; and if neither of the foregoing alternatives is available on
terms which are reasonable in Architect's/Consultant's judgment, Owner, to the extent Owner
is legally able to do so, will cease using the Designs, Plans or Specifications on written request
of Architect/Consultant, in which instance Owner has the sole option to either require
Architect/Consultant to perform new design work at Architect's/Consultant's sole expense, or
to terminate this Agreement.
(c) Architect /Consultant has no liability under this section for any claim of infringement based upon
the modification or alteration of the Designs, Plans or Specifications prepared under this
Agreement subsequent to the Project by Owner, or by any engineering consultant subsequently
employed by Owner.
(d) The foregoing states the entire obligation of Architect/Consultant with respect to infringement
of patents and copyrights.
The indemnification and defense provisions as set forth in this Paragraph 1.3.9 shall not apply to products
or materials which Owner has required that Architect/Consultant includes in any of the Designs, Plans and
Specifications, or which are substituted by Contractor or any of its subcontractors during the Construction
Phase of this Agreement.
1.3.10.1 Insurance. Architect/Consultant, at its sole cost, shall have and maintain during the term of this Agreement
professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized
to do insurance business in Texas and otherwise acceptable to Owner.
13.10.2 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Architect/Consultant,
Architect/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 13.10.1 above, including the required provisions and additional policy conditions as shown below in
Paragraph 1.3.10.3. As an alternative, Architect/Consultant may include its subconsultants as additional insureds on
its own coverages as prescribed under these requirements. Architect's/Consultant's certificate of insurance shall note
in such event that the subconsultants are included as additional insureds.
Architect/Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure
compliance with the insurance requirements. Architect/Consultant must retain the certificates of insurance for the
12
duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its
subconsultants. Owner shall be entitled, upon request and without expense, to receive copies of these certificates of
insurance.
1.3.103 Insurance Policy Endorsements. Each insurance policy under Paragraph 1.3.10.1 shall include the following
conditions by endorsement to the policy:
(I)
(3)
ARTICLE 1.4 COMPENSATION
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 Owner by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Architect/Consultant shall also notify Owner, 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 Owner for payment of any
premiums or assessments for any deductibles which all are at the sole responsibility and risk of
Architect/Consultant.
The Term "City" or "City of Round Rock" shall include all authorities, Boards, Commissions, Departments,
and officers of Owner 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 Owner,
to any such future coverage, or to Owner's Self - Insured Retentions of whatever nature.
1.3.10.4 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Architect/Consultant
shall be bome solely by Architect/Consultant, with certificates of insurance evidencing such minimum coverage in
force to be filed with Owner. Such Certificates of Insurance are evidenced as Exhibit "A" entitled "Certificates of
Insurance."
1.4.1 For Architect's/Consultant's services as comprehensively described herein, compensation shall be computed as
follows:
Architect's/Consultant's compensation for services under this Agreement shall not exceed $86,900.00 for Basic
Services and $4,000.00 for Additional Special Services, totaling the sum of $90,900.00, which sum shall include all
deliverables but shall not includereimbursableexpenses. Payment to Architect/ Consultant for approved reimbursable
expenses (such as reproduction of plans and specifications, plan distribution, ADA review fees, postage, courier
services, express delivery charges, travel, geo-technical report/soils investigation, and existing conditions/topographic
survey) shall not exceed the sum of $15,000.00 without prior written approval from Owner.
1.4.2 If the services of Architect/Consultant are changed as described in Paragraph 1.3.3, Architect's/Consultant's
compensation shall be adjusted. Such adjustment shall be calculated as described below.
1.4.3 Fora Change in Services of Architect's/Consultant's subconsultants, compensation shall be computed as a multiple
of one (1.00) times the amounts billed to Architect/Consultant for such services.
1.4.4 For Reimbursable Expenses as described herein, and any other items included in Article 1.4 as Reimbursable
Expenses, the compensation shall be computed as a multiple of one (1.00) times the expenses incurred by
Architect/Consultant and its employees and subconsultants.
1.4.5 Other Reimbursable Expenses, if any, are as follows: Technical use of computers for design, analysis, and graphics
shall be billed at the rate of $25.00 per hour.
13
1.4.6 An initial payment of Zero and No/100 Dollars ($ 0.00) shall be made upon execution of this Agreement and is the
minimum payment under this Agreement. Subsequent payments for services shall be made monthly and, where
applicable, shall be in proportion to services performed on the basis set forth in this Agreement.
1.4.7 Payments are due and payable thirty (30) days from the date of Architect' s / Consultant'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 Architect/Consultant.
One percent (1 %) per month
(Usury laws and requirements under the Federal Truth in Lending Act. similar state and local consumer credit laws and other
regulations at Owner's and Architect's /Consultant's principal places of burinetr, the location of the Protect 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)
1.4.8 No deductions shall be made from Architect's/ Consultant's compensation on account of penalty, liquidated damages
or other sums withheld from payments to contractors.
1.4.9 - No additions shall be made to Architect's/Consult ant's compensation based upon Project construction claims, whether
paid by Owner or denied.
ARTICLE 1.5 MISCELLANEOUS PROVISIONS
1.5.1 This Agreement shall be governed by the laws of the state of Texas, and venue shall lie in Williamson County, Texas.
This Agreement contains the entire and fully integrated agreement between the parties hereto and supersedes all prior
and contemporaneous negotiations, representations, agreements, or understandings, whether written or oral. This
Agreement may be supplemented or amended only by a written document executed by both parties and implemented
in accordance with provisions herein. Any provision in this Agreement which is prohibited or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such prohibition orunenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other
jurisdiction. The non - enforcement of any provision by either party shall not constitute a waiver of that provision nor
shall it affect the enforceability of that provision or of the remainder of this Agreement.
1.5.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have
accrued and 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 begin to run any later than the date when Architect's/Consultant's services are substantially completed.
1.5.3 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third
party against either Owner or Architect/Consultant.
1.5.4 Unless otherwise provided in this Agreement, Architect and Architect 's /Consultant's subconsultants shall have no
responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous
materials or toxic substances in any form at the Project site. It is expressly understood and agreed by and between the
parties hereto that Owner does not request or require that Architect/Consultant undertake or perform any services,
studics ortcsts, or make any determinations involving hazardous substances or conditions, as defined by federal or state
law. Therefore, Architect/Consultant undertakes no such obligation, and Owner agrees to indemnify and hold hamtless
Architect/Consultant from and against any claims, losses, damages, liability, and costs arising out of or in any manner
connected with the presence, discharge, release, or escape of hazardous substances or conditions of any kind, or
environmental liability of any nature, in any manner related to services performed by Architect/Consultant If any
hazardous substance or condition is observed by Architect/Consultant, it maybe permitted by Owner to cease services
until the hazardous substance or condition has been eliminated. Architect/Consultant shall have the obligation to notify
Owner of any such substance or condition of which Architect/Consultant becomes aware, and Owner shall be
responsible for its elimination.
1.5.5 Architect/Consultant shall have the right to include photogmphic or artistic representations of the design of the Project
among the Architect's/Consultant's promotional and professional materials. Architect/Consultant shall be given
reasonable access to the completed Project to make such representations. However, Architect's/Consultant's materials
14
02/21/03 FRI 11:42 FAX 9722393820
02/21/03 11:01 FAX 012 218 8548
City Manager, 1 try of / onna lock
221 Last Mein Street
Round Rode, Texas 78664
DALLAS
PAIiD
•
shall 0otincla4eOwner's confidential orpropt icmry informationif OwnerhaspmiouslyadvisedA tdtitect/Consultan
in writing of the specific information considered by Owner to be confidential or proprietary. Owner shall provide
professional credit for Architect/Consultant in Owner's promotional materials for the Project.
1S.6 If Owner rogtlesrs Architect/Consultant to exaute e;erdficet®, the proposed language of such certificates shall be
submitted 10 Architect/Consultant for review at least fourteen (14) days prior to the requested dates of execution.
Architeer/Consultanr shall not be requited to execute certificates that would ran knowledge, services or
responsibilitie��e beyond ibe scope of this Agreement
15.7 Owner and hitect/Coasultank respectively, bind themselves, their partners, suecesaors, assigns and legal
representatly, to the other party to this Agreement and to thorniness, su ccessors, assigns and legal representative&
of such otheripery with respect to all covenants of this AgreemcatNothing in this Agreement shall be conserved to
giveany rights otbenetlta in tbt8 Agroementto anyone other-than Architect/Consultant and Owner, and all duties and
responsiblliles uodatakea putment to this Agreerrunn will be for the sole and exclusive benefit of Owner and
Architect/Consultant amdnotforthebendltofatryotberpmry. Neither OwnernorAmhitec VConsnitemtshall assign,
sublet or tradafer any rights tmdor or interest in this Agrtxment withouttho written consent of the other, except that
Owner may 'assign this Agreement to an ia1Nmtional lender providing financing for the Project: In such event, the
larder shall � ssumc Owner's rights and obligations under this Agreement. Architect/Consultant shall execute all
consents reudonabty required to facilitate such assignment
i
1.5.8 Atchiteer/Co Its subeonsullmiN, agents, employees and subcontractors, shall comply with all applicable
federal and state laws, the Charter and ordinances of the City of Round Rpeic, in effect at applicable 'hues, and with
all applicable other and regalations promulgated by all local, stare ant national hoards, bureaus and agencies.
Archlteat/Cnnsultant sball further obtain all permits end licenses requh'd in the performance of the professional
services contracted for herein.
1.5.9 Archirect/Ceinsvltaut shall pay any taxes required by law arising by virtu of savier:s performed hereunder. Owner
is qualified for exemption pursuant toptovisions of fi lS1309 of the Texas Limited Sales, fascia; and Use Tax Act
15.10 Architect/Consultant covenants and represents that Ambitect!Consuhant, its officers, employees, agents,
subconsultants and subcontractors will have no financial Interest, direct or indirect, in the purchase or rate of any
product, materials or equipment that will be recommended or required fortbe design or construction of the Project.
15.11 All nod= a'nd coatapondence to Owner by Architect/Consultant shall mailed or delivered as follows:
All notices and epaenpondenco from Owner to Architect/Consultant shell be mailed or delivered as follows
K nlcy - Hem and Associates, Ina (KIRA)
12700Perkl •cnhalDrive, Suite 1R00
Dallas, Texas 75251
ThIa Agreement entered into as of the day and year that written above ;
OWNER
CITY OF ROUND ROCK, TEXAS 10M LEY a0 ASS9CIATES, INC.
ARCHITECT /CONSULTANT
By
Nyle Maxwell, M yor
ATTEST:
Christine IL Martinez, C1ty Secretary
15
Theo as L. i /halen, Production Manager
X 018
el 018
1
02/21/2003 FRI 10:58 [TX /RX NO 8518] 0016
01/28/2003 Tt1E 17:07 FAX
CERTIFICATE OF LIABILITY INSURANCE
PRODUCER
BB &T Insurance Services
PO Box 18708
Greensboro, NC 27419
INSURED
Kimley -Horn and Associates Inc
PO Box 33068
Raleigh, NC 27636
THIS TS TO CERTIFY THAT the Insured named above is insured by the Companies listed above with respect to the business
operations hereinafter described. for the types of insurance and in accordance with the provisions of the standard policies used
by the companies, and further hereinafter described. Exceptions to the policies are noted below.
LTR
GENERAL LIABILITY
AUTOMOBILE LIABILITY
EXCESS LIABILITY
WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY
OTIIER Professional Liability PL 119905
CERTIFICATE HOLDER: City of Round Rock
221 E. Main Street
Round Rock, Tcxas 78664
Atul: Christine Martinez
0 : \wdox1FORMS \corrtun1U810336 DOC
COMPANIES AFFORDING COVERAGE
A. Security 1ns. Co of Hartford
B.
C.
D.
CO TYPE OF INSURANCE POLICY NUMBER EFFECTIVE EEXPIRATION LIMITS
DATE DATF.
Date:1 -28 -03
DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES /SPECIAL ITEMS /EXCEPTIONS
Old Settlers Park Aquatic Facility
SIGNATURE OF UTHORIZED
Typcd Name:
Title:
GENERAL AGGREGATE $
PRODUCTS- COMP /OP AGO. $
PERSONAL. It ADV. INJURY $
EACH OCCURRENCE $
FIRE DAMAGE (Any one fire) 5
MED. HXPENSE (Any une penuu)$
COMBINED SINGLE LIMIT $
BODILY INJURY (Per person) $
BODILY INJURY (Per accident) $
PROPERTY DAMAGE $
EACH OCCURRENCE 8
AGGREGATE $
STATUTORY LIMITS
EACH ACCIDENT 0
DISEASE - POLICY LIMIT $
DISEASE - POLICY LIMIT 5
8 -1-02 8 -1 -04 Limit Each Claim: 01,000.000
ESENTATIVE
el 002/002
wry Should any of the above described policies be cancelled siimmes before the expiration date thereof, the issuing company will
mail thirty (30) days written notice to the certificate holder named below.
CERTIFICATE OF LIABILITY INSURANCE
PRODUCER COMPANIES AFFORDING COVERAGE
A. TRAVELERS PROPERTY CASUALTY INS CO (A++)
ABERCROMBIE INSURANCE AGENCY, INC.
P. O. BOX 5857
JACKSONVILLE, FL 32247 -5857
B.
'Date: 1/17/03
INSURED C•
KIMLEY —HORN AND ASSOCIATES, INC.
P. 0. BOX 33068 D.
RALEIGH, NC 27636 - 3068
THIS IS TO CERTIFY THAT the Insured named above is insured by the Companies listed above with respect to the business
operations hereinafter described, for the types of insurance and in accordance with the provisions of the standard policies used
by the companies, and further hereinafter described. Exceptions to the policies are noted below.
CO TYPE OF INSURANCE POLICY NUMBER EFFECTIVE EXPIRATION LIMITS
LTR DATE DATE
A
A
GENERAL LIABILITY
AUTOMOBILE LIABILITY
EXCESS LIABILITY
OTHER
CAP 836G876A - 02 9/1/02 9/1/03
DESCRIPTION OF OPERATIONS /LOCATIONS/VEHICLES /SPECIAL ITEMS/EXCEPTIONS
PROJECT: OLD SETTLERS PARK AQUATIC FACILITY, ROUND ROCK, TX.
CERTIFICATE HOLDER: City of Round Rock
221 E. Main Street
Round Rock, Texas 78664
Attn: Christine Martinez
0:\ wdox \FORMSIcorr\urd100033647.DOC
GENERALAGGREOATE $2,000,000
P 630 - 315X3476 TIL - 02 9/1/02 9/1/03 PRODUCTS COMP/OPAGG. $2,000,000
PERSONAL & ADV. INJURY 0,000,000
EACH OCCURRENCE $1,000,000
FIRE DAMAGE (Any one fire) $ 500,000
MED. EXPENSE (Any one person)$
COMBINED SINGLE LIMIT $1,000,000
BODILY INJURY (Per person) $
BODILY INJURY (Pei' accident) $
PROPERTY DAMAGE "' - $
EACH OCCURRENCE $
AGGREGATE $
WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY STATUTORY LDETS
A 836G878 - 3 - 02 9/1/02 9/1/03 EACH ACCIDENT
DISEASE - POLICY LIMIT
DISEASE - POLICY LIMIT
The City of Round Rock is named as additional insured with respect to all policies except Workers' Compensation and Employers'
Liability. Should any of the above described policies be cancelled or changed before the expiration date thereof, the issuing company will
mail thirty (30) days written notice to the certificate holder named below.
SIGNATURE OF AUTHORIZEf'REPRESENTATIVE
j / �
e: Jr JAMES E. ABERCROM$I$, JR.
CE— PRESIDENT /AGENT
5,000
$ 500,000
$ 500,000
$ 500,000
DATE: February 21, 2003
SUBJECT: City Council Meeting — February 27, 2003
ITEM: 9.F.2. Consider a resolution authorizing the Mayor to execute a Standard
Form of Agreement Behveen Owner and Architect/Consultant with
Kimley Horn and Associates, Inc. for the Old Settlers Park at Palm
Valley Family Aquatic Center Project.
Resource: Sharon Prete, Parks and Recreation Director
M. James Hemenes, RLA, ASLA, Park Planner
History:
The Family Aquatic Center at Old Settlers Park at Palm Valley
(OSPV) was a project identified and funded through the 2001 General
Obligation Bond Program. The amount of this contract is $105,900.00.
Funding: $2,800,000.00
Cost: $105,900.00
Source of Funds: Capital Project Funds /2002 G.O. Bond
Outside Resources: Kimley-Hom & Associates, Inc.
Impact/Benefit: This contract will provide for design services through the schematic
design phase of the OSPV Family Aquatic Center.
Public Comment: N/A
Sponsor: Parks and Recreation Department