R-03-08-14-14A2 - 8/14/2003RESOLUTION NO. R -03- 08- 14 -14A2
WHEREAS, the City of Round Rock desires to retain design and
construction consulting services in connection with the Buck Egger Park
Project, and
WHEREAS, Hall /Bargainer, Inc. has submitted an Agreement for
Consulting Services to provide said services, and
WHEREAS, the City Council desires to enter into said agreement
with Hall /Bargainer, Inc., Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Agreement for Consulting Services with
Hall /Bargainer, Inc., for design and construction consulting services
in connection with the Buck Egger Park 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
RESOLVED this 14th day of August, 2003.
AT T
CHRISTINE R. MARTINEZ, City Secre
®PFDeektop \::O0MA/ WORLDOX/ 0: /WDOX /RESOLDTI /R301319A2.WPD /sc
NY • T� EL', Mayor
City Cf Round Rock, Texas
CITY OF ROUND ROCK
AGREEMENT FOR CONSULTING SERVICES
WITH HALLBARGAINER, INC.
THIS AGREEMENT is made and entered into on this the day of the month of
, 2003, by and between the City of Round Rock, a Texas home -rule municipal
corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664 -5299
(hereinafter referred to as "City"), and Hall/Bargainer, Inc., whose offices are located at 400 West
Main Street, Suite 220, Round Rock, Texas 78664 (hereinafter referred to as "Consultant ").
NOW, THEREFORE, WITNESSETH:
RECITALS:
WHEREAS, City desires to contract for Consultant's assistance in providing construction
documents and construction observation for the proposed Buck Egger Park site, and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually
agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date it has been signed by every party hereto, and
shall remain in full force and effect unless and until it expires by operation of the term indicated
herein, or is terminated or extended as provided herein.
The term of this Agreement shall be for one hundred twenty (120) consecutive calendar days
from the effective date hereof, with ability to renew and extend only by express written agreement
of the parties.
1.02 GENERAL CONDITIONS
The General Conditions contained herein shall apply to the Proposal for Services, attached
hereto as Exhibit "A" and made a part hereof ofall appropriate purposes. This Agreement and such
Proposal for Services is entered into by and between the City of Round Rock or its subsidiaries or
affiliates (collectively "City ") and Hall/Bargainer, Inc. or any entity directly or indirectly owned or
controlled by same (collectively "Hall/Bargainer ").
@Paosl„p1,:ouunvowDowo-nrooxcoRRIGNU ucICEccew000s319a.weaWs
1
EXHIBIT
n A"
1.03 PROPOSAL FOR SERVICES
For purposes of this Agreement, Consultant has issued its Proposal for Services for the
assignment(s) delineated therein. Such Proposal for Services is appended to this Agreement and is
labeled as Exhibit "A." Such Proposal for Services is deemed to incorporate the General Conditions
contained herein. Except with respect to the description of specific services and fees for the
assignment(s) delineated therein, the General Conditions of this Agreement and this Agreement itself
shall prevail over any conflicting terms therein. Taken together with the appended Proposal for
Services, the General Conditions contained in this Agreement shall evidence the entire understanding
and agreement between the parties and supersede any prior proposals, correspondence or discussions.
1.04 SCOPE OF SERVICES
Consultant shall satisfactorily provide all services described under this "Scope of Services"
category and under Exhibit "A." Consultant's undertakings shall be limited to performing services
for City and/or advising City concerning those matters on which Consultant has been specifically
engaged. Consultant shall perform its services in accordance with these General Conditions and this
Agreement, in accordance with the appended Proposal for Services, in accordance with due care, and
in accordance with prevailing consulting industry standards for comparable services.
1.05 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS
Payment for Basic Services: In consideration for the consulting services to be performed
by Consultant, City agrees to pay Consultant the following sum(s) as stated herein:
Basic Services $12,500.00
Reimbursable Expenses Not to exceed $ 2.500.00
Total $15,000.00
Unless subsequently changed by additional Supplemental Agreement to this Agreement, duly
authorized by City Council Resolution, Consultant's total compensation hereunder shall not exceed
$15,000.00 including any Reimbursable Expenses. This amount represents the absolute limit of
City's liability to Consultant hereunder unless same shall be changed by additional Supplemental
Agreement hereto.
Deductions. No deductions shall be made from Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions. No additions shall be made to Consultant's compensation based upon Project
claims, whether paid by City or denied.
Supplemental Agreements. The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by City Council Resolution, if City determines that
2
there has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed
by both parties within the period specified as the term of this Agreement, that being fourteen (14)
consecutive months from the effective date hereof. Consultant shall not perform any work or incur
any additional costs prior to the execution, by both parties, of such Supplemental Agreement.
Consultant shall make no claim for extra work done or materials furnished unless and until there is
full execution of any Supplemental Agreement, and City shall not be responsible for actions by
Consultant nor for any costs incurred by Consultant relating to additional work not directly
authorized by Supplemental Agreement.
1.06 TIMETABLES
Unless otherwise indicated to Consultant in writing by City, or unless Consultant is
unreasonably delayed in the orderly progress of its work by forces beyond Consultant's control, the
following timetable structure and deliverable due dates shall apply: One hundred twenty (120)
consecutive calendar days from date of execution hereof.
1.07 TERMS OF PAYMENT; REIMBURSABLE EXPENSES
Invoices. To receive payment for services, Consultant shall prepare and submit a series of
monthly invoices in a form acceptable to City. Each invoice for professional services shall track the
"Scope of Services" category herein, and shall state and detail the services performed, along with
documentation for each service performed. All payments to Consultant shall be made on the basis
of the invoices submitted by Consultant and approved by City. Such invoices shall conform to the
schedule of services and costs in connection therewith. All Reimbursable Expenses shall be clearly
shown. Should additional backup material be requested by City, Consultant shall comply promptly
with such request. In this regard, should City determine it necessary, Consultant shall make all
records and books relating to this Agreement available to City for inspection and auditing purposes.
Payment of Invoices. City reserves the right to correct any error that may be discovered in
any invoice that may have been paid to Consultant and to adjust same to meet the requirements of
this Agreement. Following approval of invoices, City shall endeavor to pay Consultant promptly,
but no later than the time period required under the Texas Prompt Payment Act described in Section
1.08 herein. Under no circumstances shall Consultant be entitled to receive interest on payments
which are late because of a good faith dispute between Consultant and City or because of amounts
which City has a right to withhold under this Agreement or state law. City shall be responsible for
any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon
Consultant's net income.
Offsets. City may, at its option, offset any amounts due and payable under this Agreement
against any debt (including taxes) lawfully due to City from Consultant, regardless of whether the
amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether
or not the debt due to City has been reduced to judgment by a court.
3
Reimbursable Expenses. Payment for customary reimbursable expenses hereunder shall
not exceed the maximum sum of $2,500.00. City shall pay Consultant for reimbursable expenses
on a monthly basis, as invoiced and documented, at actual cost. Customary reimbursable expenses
shall include such items as the following:
a. Reprographic Services;
b. Postal/delivery services (as necessary to complete services in a timely manner);
c. Non -local transportation at the rate of $0.365 per mile;
d. Long- distance telecommunications;
e. Cost of maps, surveys, drawings, and reports necessary to complete services; and
f. Cost of obtaining permits, if any.
1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Consultant
will be made within thirty (30) days of the day on which City receives the performance, or within
thirty (30) days of the day on which the performance of services was complete, or within thirty (30)
days of the day on which City receives a correct invoice for the performance or services, whichever
is later. Consultant may charge a late fee (fee shall not be greater than that which is permitted by
Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this
policy does not apply to payments made by City in the event:
1. There is a bona fide dispute between City and Consultant concerning the services
performed that causes the payment to be late; or
2. The terms ofa federal contract, grant, regulation, or statute prevent City from making
a timely payment with federal funds; or
3. There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier concerning the services performed which causes the
payment to be late; or
4. The invoice is not mailed to City in strict accordance with instructions, if any, on any
purchase order or this Agreement.
1.09 NON APPROPRIATION
This Agreement is a commitment of City's current revenues only. It is understood and agreed
that City shall have the right to terminate this Agreement at the end of any City fiscal year if the
governing body of City does not appropriate funds sufficient to purchase the services as determined
by City's budget for the fiscal year in question. City may effect such termination by giving
Contractor a written notice of termination at the end of its then- current fiscal year.
4
1.10 TERMINATION OR DEFAULT
Termination. In connection with the work outlined in this Agreement, it is agreed and fully
understood by Consultant that City may cancel or indefinitely suspend further work hereunder or
terminate this Agreement either for cause or for the convenience of City, upon fifteen (15) days'
written notice to Consultant, with the understanding that immediately upon receipt of said notice all
work and labor being performed under this Agreement shall cease. Consultant shall invoice City for
all work satisfactorily completed and shall be compensated in accordance with the terms of this
Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for
lost or anticipated profits. Unless otherwise specified herein, all plans, field surveys, maps, cross
sections and other data, designs and work related to the Project shall become the property of City
upon termination of this Agreement, and shall be promptly delivered to City in a reasonably
organized form without restriction on future use. Should City subsequently contract with a new
consultant for continuation of services on the Project, Consultant shall cooperate in providing
information.
Default. Nothing contained in the preceding paragraph shall require City to pay for any work
which is unsatisfactory as determined by City or which is not submitted in compliance with the terns
of this Agreement. City shall not be required to make any payments to Consultant when Consultant
is in default under this Agreement, nor shall this paragraph constitute a waiver of any right, at law
and at equity, which City may have if Consultant is in default, including the right to bring legal
action for damages or to force specific performance of this Agreement.
1.11 CITY'S RESPONSIBILITIES
Full information. City shall provide full information regarding Project requirements. City
shall have the responsibility of providing Consultant with such documentation and information as
is reasonably required, if any, to enable Consultant to provide the services called for. City shall
cause its employees and any third parties who are otherwise assisting, advising or representing City
to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely
upon written information provided by City and its employees and agents as accurate and complete.
Consultant may rely upon any written directions provided by City and its employees and agents
conceming provision of services.
Designate representatives. City shall designate, when necessary, representatives authorized
to act in its behalf. City shall examine documents submitted by Consultant and render decisions
pertaining thereto promptly to avoid unreasonable delay in the orderly progress of Consultant 's work.
Tests and inspections. City shall fumish or pay for structural, mechanical, chemical, soil
mechanics, and other tests, reports and inspections which are or may be required by law or Project
documents.
5
1.12 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, not City's employee. Consultant's employees or
subcontractors are not City's employees. This Agreement does not create a partnership relationship.
Neither party has authority to enter into contracts as agent for the other party. Consultant and City
agree to the following rights consistent with an independent contractor relationship:
1. Consultant has the right to perform services for others during the term of this
Agreement;
2. Consultant has the sole right to control and direct the means, manner and method by
which services required by this Agreement will be performed;
3. Consultant has the right to hire assistants as subcontractors, or to use employees to
provide the services required by this Agreement;
4. Consultant or its employees or subcontractors shall perform the services required by
this Agreement. City shall not hire, supervise, or pay any assistants to help
Consultant;
5. Neither Consultant nor its employees or subcontractors shall receive any training
from City in the skills necessary to perform the services required by this Agreement;
6. City shall not require Consultant its employees or subcontractors to devote full time
to performing the services required by this Agreement; and
7. Neither Consultant nor its employees or subcontractors are eligible to participate in
any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of
City.
1.13 CONFIDENTIALITY; DISPOSITION OF MATERIALS
Each party shall take reasonable measures to preserve the confidentiality of any proprietary
or confidential information provided to it in connection with this engagement, provided that no claim
may be made for any failure to protect information that occurs more than two (2) years after the
termination or expiration of this Agreement.
At the conclusion of the engagement, upon written request, each party shall return to the other
all materials, data and documents that have been provided to the other party, except that Consultant
may retain one (1) copy of City's materials for its archival purposes, subject to Consultant's
confidentiality obligations hereunder. City shall retain ownership of all data and materials provided
by it to Consultant. Original drawings shall remain the property of Consultant. Consultant shall
provide City with one (1) signed set of reproducibles and one (1) full set of digital file copies.
6
1.14 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of this Agreement and
the appended Proposal for Services, then and in that event City shall give written notification to
Consultant; thereafter, Consultant shall either (a) promptly re- perform such services to City's
satisfaction at no additional charge, or (b) promptly refund the portion of the fees paid with respect
to such services.
In the event that re- performance of services or refund of applicable fees would not provide
an adequate remedy to City for damages arising from the performance, nonperformance or breach
of this Agreement and the appended Proposal for Services, then and in that event Consultant's
maximum total liability, including that of any employee, affiliate, agent or contractor, relating to its
services, regardless of the cause of action, shall be limited to direct damages in an amount not to
exceed the total fees payable under this Agreement.
The foregoing limitation of liability shall not apply to the extent that any liability arises from
the gross negligence or willful misconduct of Consultant, its employees, affiliates, agents or
contractors, or from bodily injury, death of any person, or damage to any real or tangible personal
property. Neither party shall be liable for any indirect, special or consequential damages.
135 INDEMNIFICATION
Consultant agrees to hold harmless, defend, and indemnify City for and from any third party
claim or liability (including reasonable defense costs and attomeys' fees) to the extent arising from
or in connection with the negligence of Consultant or its employees or agents in the course of
performing services. The limitation of liability set forth in Section 1.14 herein applies to
Consultant's indemnity obligations pursuant to this Section 1.15, but the limitation shall not apply
to the extent that any liability arises from the gross negligence or willful misconduct of Consultant,
its employees, affiliates, agents or contractors or from bodily injury, death of any person, of damage
to any real or tangible personal property.
Except to the extent that Consultant is obligated to indemnify City, City shall indemnify and
hold Consultant, its employees, affiliates or agents harmless from any third party claim or liability
(including reasonable defense costs and attorneys' fees) to the extent arising from or in connection
with the services performed by Consultant or City's use thereof.
1.16 INSURANCE
Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term of
this Agreement professional liability insurance coverage in the minimum amount of Five Hundred
Thousand Dollars from a company authorized to do insurance business in Texas and otherwise
acceptable to City.
7
Subconsultant Insurance. Without limiting any of the other obligations or liabilities of
Consultant, Consultant shall require each subconsultant performing work under this Agreement to
maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated
minimum insurance required in the immediately preceding paragraph, including the required
provisions and additional policy conditions as shown below. As an alternative, Consultant may
include its subconsultants as additional insureds on its own coverages as prescribed under these
requirements. Consultant's certificate of insurance shall note in such event that the subconsultants
are included as additional insureds.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant in
order to assure compliance with the insurance requirements. Consultant must retain the certificates
of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these
insurance requirements among its subconsultants. City shall be entitled, upon request and without
expense, to receive copies of these certificates of insurance.
Insurance Policy Endorsements. Each insurance policy hereunder shall include the
following conditions by endorsement to the policy:
(1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -
renewal or any material change in coverage, a notice thereof shall be given to City by
certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify City, within 24 hours of receipt, of any notices of expiration,
cancellation, non - renewal, or material change in coverage it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against City for payment
of any premiums or assessments for any deductibles which all are at the sole responsibility
and risk of Consultant.
(3) Terms "City" or "City of Round Rock" shall include all authorities, boards, commissions,
departments, and officers of City and individual members, employees and agents in their
official capacities, or while acting on behalf of the City of Round Rock.
(4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently
held by City, to any future coverage, or to City's Self- Insured Retentions of whatever nature.
(5) Consultant and City mutually waive subrogation rights each may have against the other
for loss or damage, to the extent same is covered by the proceeds of insurance.
8
Cost of Insurance. The cost of all insurance required herein to be secured and maintained
by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such
minimum coverage in force to be filed with the City. Such Certificates of Insurance are evidenced
as Exhibit `B" entitled "Certificates of Insurance."
1.17 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Compliance with Laws. Consultant, its consultants, agents, employees and subcontractors
shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances
of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated
by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits
and licenses required in the performance of the services contracted for herein.
Taxes. Consultant will pay all taxes, if any, required by law arising by virtue of the services
performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309
of the Texas Limited Sales, Excise, and Use Tax Act.
1.18 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or
sale of any product, materials or equipment that will be recommended or required for the
construction of the Project.
1.19 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal representatives
to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or
transfer any interest in this Agreement without prior written authorization of the other party.
1.20 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
1. Withhold FICA from Consultant's payments or make FICA payments on
Consultant's behalf; or
2. Make state and/or federal unemployment compensation contributions on Consultant's
behalf; or
3. Withhold state or federal income tax from Consultant's payments.
9
1.21 NOTICES
All notices and other communications in connection with this Agreement shall be in writing
and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement; or
2. Three (3) days after being deposited in the United States mail, with postage prepaid
to the recipient's address as stated in this Agreement.
Notice to Consultant:
Hall/Bargainer, Inc.
400 West Main Street, Suite 220
Round Rock, TX 78664
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
1.23 EXCLUSIVE AGREEMENT
1.24 DISPUTE RESOLUTION
AND TO:
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.22 APPLICABLE LAW; ENFORCEMENT AND VENUE
City Attomey
309 East Main Street
Round Rock, TX 78664
This Agreement shall be enforceable in Round Rock, Williamson County, Texas; if legal
action is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein, exclusive venue shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
This document, and all appended documents, constitutes the entire Agreement between
Consultant and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing.
If a dispute or claim arises under this Agreement, the parties agree to first try to resolve the
dispute or claim by appropriate internal means, including referral to each party's senior management.
If the parties cannot reach a mutually satisfactory resolution, then and in that event any such dispute
10
or claim will be sought to be resolved with the help of a mutually selected mediator. If the parties
cannot agree on a mediator, City and Consultant shall each select a mediator and the two mediators
shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the
mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC
Section 1 -14) or any applicable state arbitration statute.
1.25 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no way
affect the validity or enforceability of any other portion or provision of this Agreement. Any void
provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be
construed and enforced as if this Agreement did not contain the particular portion or provision held
to be void. The parties further agree to amend this Agreement to replace any stricken provision with
a valid provision that comes as close as possible to the intent of the stricken provision. The
provisions ofthis section shall not prevent this entire Agreement from being void should a provision
which is of the essence of this Agreement be determined void.
1.26 MISCELLANEOUS PROVISIONS
Time of the Essence. Consultant agrees that time is of the essence and that any failure of
Consultant to complete the services for each phase of this Agreement within the agreed Project
schedule will constitute a material breach of this Agreement. Consultant shall be fully responsible
for its delays or for failures to use best efforts in accordance with the terms ofthis Agreement. Where
damage is caused to City due to Consultant's failure to perform in these circumstances, City may
withhold, to the extent of such damage, Consultant's payments hereunder without waiver of any of
City's additional legal rights or remedies. City shall render decisions pertaining to Consultant's
work promptly to avoid unreasonable delays in the orderly progress of Consultant's work.
Force Majeure. Neither City nor Consultant shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible or circumstances beyond its control. However, notice of such impediment or delay in
performance must be timely given, and all reasonable efforts undertaken to mitigate its effects.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated.
CITY OF ROUND ROCK, TEXAS ATTEST:
By:
Nyle Maxwell, Mayor Christine R. Martinez, City Secretary
Date Signed: Date Signed:
11
HALLBARGAINER, INC.
By.
Ti gainer Vice President
Date Signed: � ?erg 0,
ATTACHMENTS
Exhibit "A": Proposal for Services
Exhibit "B": Certificates of Insurance
12
EXHIBIT "A"
PROPOSAL FOR SERVICES
A. DESIGN DEVELOPMENT DRAWINGS
Based upon the approved program, prepare Design Development plan, with all
considerations that become apparent from the previous data collection and programming
phase.
1. Review, analyze, and refine concepts potentially addressing the following:
a. Pedestrian Circulation;
b. Landscape Structures;
c. Landform and Drainage Issues;
d. Views within and towards the park;
e. Parking;
f. Playscapes; and
g. Site Furnishings.
2. Provide estimate of probable construction costs for the Phase 1 area. Total budget
allotment, including design fees, is understood to be $97,000.00.
B. CONSTRUCTION DRAWINGS AND SPECIFICATIONS
Based upon the client- approved Design Development drawings, directed scope of work and
budget, Consultant shall address the following:
1. Construction Drawings addressing the following elements:
a. Phase 1: Site Plan dimensional layout and detailing of program items within
the approved scope of work;
b. Phase 1: Site Grading and Landform;
c. Phase 1: Planting Plan and details;
d. Phase 1: Irrigation Plan and details;
e. Playscape design, layout and details; and
f. Alternate bid items.
2. Provide seventy-five percent (75 %) construction drawing review set to client for
review and comment.
3. Provide one hundred percent (100 %) drawing review set to client for review and
comment.
13
4. Provide estimate of probably construction costs for the Phase 1 area.
C. REGULATORY DOCUMENTATION
1. As requested by the City, Consultant shall assist the City in filing the appropriate
plans and documents with:
a. City of Round Rock: (Development Permit)
b. Texas Commission on Environmental Quality: (SWPPP)
c. ADAJTAS: (independent review /inspection/approvals throughout
construction documentation)
to facilitate permitting in conjunction with the efficient progress of the Project.
Consultant shall review any modifications requested by the regulatory agencies with
the City, and shall revise drawings approved by the City, and shall submit the
documents to the appropriate agency for final processing and approvals.
Note: All opinions of probable construction costs represent Consultant's best
judgment as a professional firm familiar with the construction industry, but
Consultant does not guarantee that proposals, bids or actual project costs will not
vary from its opinions ofprobably cost.
D. BIDDING AND NEGOTIATION
1. As requested by the City, Consultant shall assist in obtaining and evaluation bids or
negotiating proposals, and shall assist in awarding and preparing contracts for
construction.
2. Consultant shall coordinate pre -bids and bidding notification with the City and shall
establish General Requirements section of specifications for bidding procedures and
schedules.
3. Consultant shall consider requests for substitutions, where appropriate, and shall
prepare and distribute addenda to prospective bidders.
4. Consultant shall formally accept and validate bids and shall prepare bid tabulations
and recommendations for selection to the City.
E. CONSTRUCTION OBSERVATION
1. Make periodic site visits as requested by City and at intervals appropriate to the state
of construction to monitor the progress and quality of the work completed and to
determine if the work is being performed in a manner indicating that the work, when
complete, will be in accordance with the Contract Documents.
14
2. Review and respond to properly prepared, timely requests from the Contractor for
additional information concerning the contract documents.
3. Review shop drawings, submittals, and pay estimates provided by the Contractor, and
maintain a record of all such communications in accordance with the requirements
of the contract documents.
4. Attend required meetings with regulatory agencies, including environmental pre -
construction and post - construction conferences scheduled with the City
Environmental Inspector, TPWD review, or any other regulatory reviewers assigned
to this Project.
5. If required, prepare Change Orders and construction Change Directives for the
approval and execution by the City in accordance with the contract documents.
6. Review properly prepared, timely requests from the City or the Contractor for
changes to the scope, duration, or cost of the work.
7. Conduct inspections of the work in order to determine the date of substantial
completion, and verify the satisfactory completion of the Project in accordance with
the contract documents.
8. Assist the City in completing the close -out documentation necessary to conclude the
construction phase of the Project, including preparation of a Letter of Concurrence
for the City upon successful completion of the Project.
9. Prepare any additional written communication to the City related to the construction
progress, as necessary.
Total for the Above Delineated Services, Including Reimbursables: $15,000.00
15
CERTIFICATE OF LIABILITY INSURANCE
PROFESSIONAL SERVICES
PRODUCER
Leatzow & Associates, Inc.
415 Taft Ave.
Glen Ellyn, IL 60137
INSURED
Hall /Bargainer, Inc. C
400 W. Main, #220
Round Rock, TX 78664 D
A PROFESSIONAL LIABILITY 5384407 6/2/03
DESCRIPTION OF SPECIAL ITEMS/EXCEPTIONS
CERTIFICATE HOLDER: City of Round Rock
221 E. Main Street
Round Rock Texas 78664
alto: Christine Martinez, City Secretary
RECD JUL 3 1 2003
J Pu bic t 4rSS
Revd 2/10/03 - Professional Liability CertiEcate.doo
Date: 723/03
COMPANIES AFFORDING COVERAGE
A Lexington Insurance Co.
B
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 EFFECTIVE EXPIRATION
LTR NUMBER DATE DATE
There are no additional insureds on a professional liability policy
6/2/04 $1,000,000 limit
$1,000,000 aggregate
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 AUTHORIZED REPRESENTATIVE
Typed
James Leatzow
Title:President
LIMITS
DATE: August 8, 2003
SUBJECT: City Council Meeting - August 14, 2003
History:
Outside Resources: Hall /Bargainer Inc.
ITEM: 14.A.2. Consider a resolution authorizing the Mayor to execute an
Agreement for Consulting Services with Hall /Bargainer, Inc.
for the Buck Egger Park Renovation Project.
Resource: Sharon Prete, Parks and Recreation Director
M. James Hemenes, RLA, ASLA, Park Development Manager
The Buck Egger Park Renovation Project is being funded
through a Community Development Block Grant (CDBG).
This park renovation will continue to include a sports practice
area and we will add neighborhood park features such as a
playground to the site.
Funding: $113,377.00
Cost: $15,000.00
Source of Funds: Community Development Block Grant (CDBG)
Impact /Benefit: This contract will provide for professional services from
design development through the construction observation
phase of the Buck Egger Park Project.
Public Comment: Neighborhood meetings were held to solicit input in the
design of the park.
Sponsor: Parks and Recreation Department
Planning and Community Development
CITY OF ROUND ROCK
AGREEMENT FOR CONSULTING SERVICES
WITH HALLBARGAINER, INC. i J
THIS AGREEMENT is made and entered into on this the / day of the month of
, 2003, by and between the City of Round Rock, a Texas home -rule municipal
corpo ion, whose offices are located at 221 East Main Street, Round Rock, Texas 78664 -5299
(hereinafter referred to as "City "), and Hall/Bargainer, Inc., whose offices are located at 400 West
Main Street, Suite 220, Round Rock, Texas 78664 (hereinafter referred to as "Consultant ").
RECITALS:
WHEREAS, City desires to contract for Consultant's assistance in providing construction
documents and construction observation for the proposed Buck Egger Park site, and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually
agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date it has been signed by every party hereto, and
shall remain in full force and effect unless and until it expires by operation of the term indicated
herein, or is terminated or extended as provided herein.
The term of this Agreement shall be for one hundred twenty (120) consecutive calendar days
from the effective date hereof, with ability to renew and extend only by express written agreement
of the parties.
1.02 GENERAL CONDITIONS
The General Conditions contained herein shall apply to the Proposal for Services, attached
hereto as Exhibit "A" and made a part hereof of all appropriate purposes. This Agreement and such
Proposal for Services is entered into by and between the City of Round Rock or its subsidiaries or
affiliates (collectively "City") and Hall/Bargainer, Inc. or any entity directly or indirectly owned or
controlled by same (collectively "Hall/Bargainer").
@PFfl 1 :: ODMA/ woKl. oowo: RVEOwCO1WGNUBUCKEGGER/00053]92. WPMkg
£- 03- 0S -1y- Mg P.,
1
1.03 PROPOSAL FOR SERVICES
For purposes of this Agreement, Consultant has issued its Proposal for Services for the
assignment(s) delineated therein. Such Proposal for Services is appended to this Agreement and is
labeled as Exhibit "A." Such Proposal for Services is deemed to incorporate the General Conditions
contained herein. Except with respect to the description of specific services and fees for the
assignment(s) delineated therein, the General Conditions of this Agreement and this Agreement itself
shall prevail over any conflicting terms therein. Taken together with the appended Proposal for
Services, the General Conditions contained in this Agreement shall evidence the entire understanding
and agreement between the parties and supersede any prior proposals, correspondence or discussions.
1.04 SCOPE OF SERVICES
Consultant shall satisfactorily provide all services described under this "Scope of Services"
category and under Exhibit "A." Consultant's undertakings shall be limited to performing services
for City and/or advising City conceming those matters on which Consultant has been specifically
engaged. Consultant shall perform its services in accordance with these General Conditions and this
Agreement, in accordance with the appended Proposal for Services, in accordance with due care, and
in accordance with prevailing consulting industry standards for comparable services.
1.05 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS
Payment for Basic Services: In consideration for the consulting services to be performed
by Consultant, City agrees to pay Consultant the following sum(s) as stated herein:
Basic Services $12,500.00
Reimbursable Expenses Not to exceed $ 2,500.00
Total $15,000.00
Unless subsequently changed by additional Supplemental Agreement to this Agreement, duly
authorized by City Council Resolution, Consultant's total compensation hereunder shall not exceed
$15,000.00 including any Reimbursable Expenses. This amount represents the absolute limit of
City's liability to Consultant hereunder unless same shall be changed by additional Supplemental
Agreement hereto.
Deductions. No deductions shall be made from Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant,
Additions. No additions shall be made to Consultant's compensation based upon Project
claims, whether paid by City or denied.
Supplemental Agreements. The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by City Council Resolution, ifCitydetemiines that
2
there has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed
by both parties within the period specified as the term of this Agreement, that being fourteen (14)
consecutive months from the effective date hereof. Consultant shall not perform any work or incur
any additional costs prior to the execution, by both parties, of such Supplemental Agreement.
Consultant shall make no claim for extra work done or materials furnished unless and until there is
full execution of any Supplemental Agreement, and City shall not be responsible for actions by
Consultant nor for any costs incurred by Consultant relating to additional work not directly
authorized by Supplemental Agreement.
1.06 TIMETABLES
Unless otherwise indicated to Consultant in writing by City, or unless Consultant is
unreasonably delayed in the orderly progress of its work by forces beyond Consultant's control, the
following timetable structure and deliverable due dates shall apply: One hundred twenty (120)
consecutive calendar days from date of execution hereof.
1.07 TERMS OF PAYMENT; REIMBURSABLE EXPENSES
Invoices. To receive payment for services, Consultant shall prepare and submit a series of
monthly invoices in a form acceptable to City. Each invoice for professional services shall track the
"Scope of Services" category herein, and shall state and detail the services performed, along with
documentation for each service performed. All payments to Consultant shall be made on the basis
of the invoices submitted by Consultant and approved by City. Such invoices shall conform to the
schedule of services and costs in connection therewith. All Reimbursable Expenses shall be clearly
shown. Should additional backup material be requested by City, Consultant shall comply promptly
with such request. In this regard, should City determine it necessary, Consultant shall make all
records and books relating to this Agreement available to City for inspection and auditing purposes.
Payment of Invoices. City reserves the right to correct any error that may be discovered in
any invoice that may have been paid to Consultant and to adjust same to meet the requirements of
this Agreement. Following approval of invoices, City shall endeavor to pay Consultant promptly,
but no later than the time period required under the Texas Prompt Payment Act described in Section
1.08 herein. Under no circumstances shall Consultant be entitled to receive interest on payments
which are late because of a good faith dispute between Consultant and City or because of amounts
which City has a right to withhold under this Agreement or state law. City shall be responsible for
any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon
Consultant's net income.
Offsets. City may, at its option, offset any amounts due and payable under this Agreement
against any debt (including taxes) lawfully due to City from Consultant, regardless of whether the
amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether
or not the debt due to City has been reduced to judgment by a court.
3
Reimbursable Expenses. Payment for customary reimbursable expenses hereunder shall
not exceed the maximum sum of $2,500.00. City shall pay Consultant for reimbursable expenses
on a monthly basis, as invoiced and documented, at actual cost. Customary reimbursable expenses
shall include such items as the following:
a. Reprographic Services;
b. Postal/delivery services (as necessary to complete services in a timely manner);
c. Non -local transportation at the rate of $0.365 per mile;
d. Long- distance telecommunications;
e. Cost of maps, surveys, drawings, and reports necessary to complete services; and
f. Cost of obtaining permits, if any.
1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Consultant
will be made within thirty (30) days of the day on which City receives the performance, or within
thirty (30) days of the day on which the performance of services was complete, or within thirty (30)
days of the day on which City receives a correct invoice for the performance or services, whichever
is later. Consultant may charge a late fee (fee shall not be greater than that which is permitted by
Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this
policy does not apply to payments made by City in the event:
1. There is a bona fide dispute between City and Consultant concerning the services
performed that causes the payment to be late; or
2. The terms of a federal contract, grant, regulation, or statute prevent City from making
a timely payment with federal funds; or
3. There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier conceming the services performed which causes the
payment to be late; or
4. The invoice is not mailed to City in strict accordance with instructions, if any, on any
purchase order or this Agreement.
1.09 NON - APPROPRIATION
This Agreement is a commitment of City's current revenues only. It is understood and agreed
that City shall have the right to terminate this Agreement at the end of any City fiscal year if the
goveming body of City does not appropriate funds sufficient to purchase the services as determined
by City's budget for the fiscal year in question. City may effect such termination by giving
Contractor a written notice of termination at the end of its then- current fiscal year.
4
1.10 TERMINATION OR DEFAULT
Termination. In connection with the work outlined in this Agreement, it is agreed and fully
understood by Consultant that City may cancel or indefinitely suspend further work hereunder or
terminate this Agreement either for cause or for the convenience of City, upon fifteen (15) days'
written notice to Consultant, with the understanding that immediately upon receipt of said notice all
work and labor being performed under this Agreement shall cease. Consultant shall invoice City for
all work satisfactorily completed and shall be compensated in accordance with the terms of this
Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for
lost or anticipated profits. Unless otherwise specified herein, all plans, field surveys, maps, cross
sections and other data, designs and work related to the Project shall become the property of City
upon termination of this Agreement, and shall be promptly delivered to City in a reasonably
organized form without restriction on future use. Should City subsequently contract with a new
consultant for continuation of services on the Project, Consultant shall cooperate in providing
information.
Default. Nothing contained in the preceding paragraph shall require City to pay for any work
which is unsatisfactory as determined by City or which is not submitted in compliance with the terms
of this Agreement. City shall not be required to make any payments to Consultant when Consultant
is in default under this Agreement, nor shall this paragraph constitute a waiver of any right, at law
and at equity, which City may have if Consultant is in default, including the right to bring legal
action for damages or to force specific performance of this Agreement.
1.11 CITY'S RESPONSIBILITIES
Full information. City shall provide full information regarding Project requirements. City
shall have the responsibility of providing Consultant with such documentation and information as
is reasonably required, if any, to enable Consultant to provide the services called for. City shall
cause its employees and any third parties who are otherwise assisting, advising or representing City
to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely
upon written information provided by City and its employees and agents as accurate and complete.
Consultant may rely upon any written directions provided by City and its employees and agents
concerning provision of services.
Designate representatives. City shall designate, when necessary, representatives authorized
to act in its behalf. City shall examine documents submitted by Consultant and render decisions
pertaining thereto promptly to avoid unreasonable delay in the orderly progress of Consultant's work.
Tests and inspections. City shall fumish or pay for structural, mechanical, chemical, soil
mechanics, and other tests, reports and inspections which are or may be required by law or Project
documents.
5
1.12 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, not City's employee. Consultant's employees or
subcontractors are not City's employees. This Agreement does not create a partnership relationship.
Neither party has authority to enter into contracts as agent for the other party. Consultant and City
agree to the following rights consistent with an independent contractor relationship:
Consultant has the right to perform services for others during the term of this
Agreement;
2. Consultant has the sole right to control and direct the means, manner and method by
which services required by this Agreement will be performed;
3. Consultant has the right to hire assistants as subcontractors, or to use employees to
provide the services required by this Agreement;
4. Consultant or its employees or subcontractors shall perform the services required by
this Agreement. City shall not hire, supervise, or pay any assistants to help
Consultant;
5. Neither Consultant nor its employees or subcontractors shall receive any training
from City in the skills necessary to perform the services required by this Agreement;
6. City shall not require Consultant its employees or subcontractors to devote full time
to performing the services required by this Agreement; and
7. Neither Consultant nor its employees or subcontractors are eligible to participate in
any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of
City.
1.13 CONFIDENTIALITY; DISPOSITION OF MATERIALS
Each party shall take reasonable measures to preserve the confidentiality of any proprietary
or confidential information provided to it in connection with this engagement, provided that no claim
may be made for any failure to protect information that occurs more than two (2) years after the
termination or expiration of this Agreement.
At the conclusion of the engagement, upon written request, each party shall return to the other
all materials, data and documents that have been provided to the other party, except that Consultant
may retain one (1) copy of City's materials for its archival purposes, subject to Consultant's
confidentiality obligations hereunder. City shall retain ownership of all data and materials provided
by it to Consultant. Original drawings shall remain the property of Consultant. Consultant shall
provide City with one (1) signed set of reproducibles and one (1) full set of digital file copies.
6
1.14 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of this Agreement and
the appended Proposal for Services, then and in that event City shall give written notification to
Consultant; thereafter, Consultant shall either (a) promptly re- perform such services to City's
satisfaction at no additional charge, or (b) promptly refund the portion of the fees paid with respect
to such services.
In the event that re- performance of services or refund of applicable fees would not provide
an adequate remedy to City for damages arising from the performance, nonperformance or breach
of this Agreement and the appended Proposal for Services, then and in that event Consultant's
maximum total liability, including that of any employee, affiliate, agent or contractor, relating to its
services, regardless of the cause of action, shall be limited to direct damages in an amount not to
exceed the total fees payable under this Agreement.
The foregoing limitation of liability shall not apply to the extent that any liability arises from
the gross negligence or willful misconduct of Consultant, its employees, affiliates, agents or
contractors, or from bodily injury, death of any person, or damage to any real or tangible personal
property. Neither party shall be liable for any indirect, special or consequential damages.
1.15 INDEMNIFICATION
Consultant agrees to hold harmless, defend, and indemnify City for and from any third party
claim or liability (including reasonable defense costs and attomeys' fees) to the extent arising from
or in connection with the negligence of Consultant or its employees or agents in the course of
performing services. The limitation of liability set forth in Section 1.14 herein applies to
Consultant's indemnity obligations pursuant to this Section 1.15, but the limitation shall not apply
to the extent that any liability arises from the gross negligence or willful misconduct of Consultant,
its employees, affiliates, agents or contractors or from bodily injury, death of any person, of damage
to any real or tangible personal property.
Except to the extent that Consultant is obligated to indemnify City, City shall indemnify and
hold Consultant, its employees, affiliates or agents harmless from any third party claim or liability
(including reasonable defense costs and attorneys' fees) to the extent arising from or in connection
with the services performed by Consultant or City's use thereof.
1.16 INSURANCE
Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term of
this Agreement professional liability insurance coverage in the minimum amount of Five Hundred
Thousand Dollars from a company authorized to do insurance business in Texas and otherwise
acceptable to City.
7
Subconsultant Insurance. Without limiting any of the other obligations or liabilities of
Consultant, Consultant shall require each subconsultant performing work under this Agreement to
maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated
minimum insurance required in the immediately preceding paragraph, including the required
provisions and additional policy conditions as shown below. As an alternative, Consultant may
include its subconsultants as additional insureds on its own coverages as prescribed under these
requirements. Consultant's certificate of insurance shall note in such event that the subconsultants
are included as additional insureds.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant in
order to assure compliance with the insurance requirements. Consultant must retain the certificates
of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these
insurance requirements among its subconsultants. City shall be entitled, upon request and without
expense, to receive copies of these certificates of insurance.
Insurance Policy Endorsements. Each insurance policy hereunder shall include the
following conditions by endorsement to the policy:
(1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -
renewal or any material change in coverage, a notice thereof shall be given to City by
certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify City, within 24 hours of receipt, of any notices of expiration,
cancellation, non - renewal, or material change in coverage it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against City for payment
of any premiums or assessments for any deductibles which all are at the sole responsibility
and risk of Consultant.
(3) Terms "City" or "City of Round Rock" shall include all authorities, boards, commissions,
departments, and officers of City and individual members, employees and agents in their
official capacities, or while acting on behalf of the City of Round Rock.
(4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently
held by City, to any future coverage, or to City's Self- Insured Retentions of whatever nature.
(5) Consultant and City mutually waive subrogation rights each may have against the other
for loss or damage, to the extent same is covered by the proceeds of insurance.
8
Cost of Insurance. The cost of all insurance required herein to be secured and maintained
by Consultant shall be bome solely by Consultant, with certificates of insurance evidencing such
minimum coverage in force to be filed with the City. Such Certificates of Insurance are evidenced
as Exhibit "B" entitled "Certificates of Insurance."
1.17 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Compliance with Laws. Consultant, its consultants, agents, employees and subcontractors
shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances
of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated
by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits
and licenses required in the performance of the services contracted for herein.
Taxes. Consultant will pay all taxes, if any, required by law arising by virtue of the services
performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309
of the Texas Limited Sales, Excise, and Use Tax Act.
1.18 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or
sale of any product, materials or equipment that will be recommended or required for the
construction of the Project.
1.19 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal representatives
to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or
transfer any interest in this Agreement without prior written authorization of the other party.
1.20 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
1. Withhold FICA from Consultant's payments or make FICA payments on
Consultant's behalf; or
2. Make state and/or federal unemployment compensation contributions on Consultant's
behalf; or
3. Withhold state or federal income tax from Consultant's payments.
9
1.21 NOTICES
All notices and other communications in connection with this Agreement shall be in writing
and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement; or
2. Three (3) days after being deposited in the United States mail, with postage prepaid
to the recipient's address as stated in this Agreement.
Notice to Consultant:
Hall/Bargainer, Inc.
400 West Main Street, Suite 220
Round Rock, TX 78664
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.22 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Williamson County, Texas; if legal
action is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein, exclusive venue shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
1.23 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Consultant and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing.
1.24 DISPUTE RESOLUTION
AND TO:
10
City Attorney
309 East Main Street
Round Rock, TX 78664
If a dispute or claim arises under this Agreement, the parties agree to first try to resolve the
dispute or claim by appropriate internal means, including referral to each party's senior management.
If the parties cannot reach a mutually satisfactory resolution, then and in that event any such dispute
or claim will be sought to be resolved with the help of a mutually selected mediator. If the parties
cannot agree on a mediator, City and Consultant shall each select a mediator and the two mediators
shall agree upon a third mediator. Any costs and fees, other than attomey fees, associated with the
mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC
Section 1 -14) or any applicable state arbitration statute.
1.25 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no way
affect the validity or enforceability of any other portion or provision of this Agreement. Any void
provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be
construed and enforced as if this Agreement did not contain the particular portion or provision held
to be void. The parties further agree to amend this Agreement to replace any stricken provision with
a valid provision that comes as close as possible to the intent of the stricken provision. The
provisions of this section shall not prevent this entire Agreement from being void should a provision
which is of the essence of this Agreement be determined void.
1.26 MISCELLANEOUS PROVISIONS
Time of the Essence. Consultant agrees that time is of the essence and that any failure of
Consultant to complete the services for each phase of this Agreement within the agreed Project
schedule will constitute a material breach of this Agreement. Consultant shall be fully responsible
for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where
damage is caused to City due to Consultant's failure to perform in these circumstances, City may
withhold, to the extent of such damage, Consultant's paygrents hereunder without waiver of any of
City's additional legal rights or remedies. City shall render decisions pertaining to Consultant's
work promptly to avoid unreasonable delays in the orderly progress of Consultant's work.
Force Majeure. Neither City nor Consultant shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible or circumstances beyond its control. However, notice of such impediment or delay in
performance must be timely given, and all reasonable efforts undertaken to mitigate its effects.
IN WITNESS WHEREOF, the
CITY OF RO N
By: :.Llrr�f
-; ax e 1, Mayor,
Date Signed: g -� y - 03
arties have executed this Agreement on the dates indicated.
A EST:
ALA_L1L ' ' . )I i A .i /
11
Christine R. Martinez, City ecretary
Date Signed: 8-P— 3
HALLBARGAINER, INC.
By.
Ti gainer. Vice President
Date Signed: 7 QAg, 0,
ATTACHMENTS
Exhibit "A ": Proposal for Services
Exhibit "B ": Certificates of Insurance
12
>,
EXHIBIT "A"
PROPOSAL FOR SERVICES
A. DESIGN DEVELOPMENT DRAWINGS
Based upon the approved program, prepare Design Development plan, with all
considerations that become apparent from the previous data collection and programming
phase.
1. Review, analyze, and refine concepts potentially addressing the following:
a. Pedestrian Circulation;
b. Landscape Structures;
c. Landform and Drainage Issues;
d. Views within and towards the park;
e. Parking;
f. Playscapes; and
g. Site Fumishings.
2. Provide estimate of probable construction costs for the Phase 1 area. Total budget
allotment, including design fees, is understood to be $97,000.00.
B. CONSTRUCTION DRAWINGS AND SPECIFICATIONS
Based upon the client- approved Design Development drawings, directed scope of work and
budget, Consultant shall address the following:
1. Construction Drawings addressing the following elements:
a. Phase 1: Site Plan dimensional layout and detailing of program items within
the approved scope of work;
b. Phase 1: Site Grading and Landform;
c. Phase 1: Planting Plan and details;
d. Phase 1: Irrigation Plan and details;
e. Playscape design, layout and details; and
f. Alternate bid items.
2. Provide seventy -five percent (75 %) construction drawing review set to client for
review and comment.
3. Provide one hundred percent (100 %) drawing review set to client for review and
comment.
13
4. Provide estimate of probably construction costs for the Phase 1 area.
C. REGULATORY DOCUMENTATION
1. As requested by the City, Consultant shall assist the City in filing the appropriate
plans and documents with:
a. City of Round Rock: (Development Permit)
b. Texas Commission on Environmental Quality: (SWPPP)
c. ADA/TAS: (independent review /inspection/approvals throughout
construction documentation)
to facilitate permitting in conjunction with the efficient progress of the Project.
Consultant shall review any modifications requested by the regulatory agencies with
the City, and shall revise drawings approved by the City, and shall submit the
documents to the appropriate agency for final processing and approvals.
Note: All opinions of probable construction costs represent Consultant's best
judgment as a professional firm familiar with the construction industry, but
Consultant does not guarantee that proposals, bids or actual project costs will not
vary from its opinions of probably cost.
D. BIDDING AND NEGOTIATION
1. As requested by the City, Consultant shall assist in obtaining and evaluation bids or
negotiating proposals, and shall assist in awarding and preparing contracts for
construction.
2. Consultant shall coordinate pre -bids and bidding notification with the City and shall
establish General Requirements section of specifications for bidding procedures and
schedules.
3. Consultant shall consider requests for substitutions, where appropriate, and shall
prepare and distribute addenda to prospective bidders.
4. Consultant shall formally accept and validate bids and shall prepare bid tabulations
and recommendations for selection to the City.
E. CONSTRUCTION OBSERVATION
1. Make periodic site visits as requested by City and at intervals appropriate to the state
of construction to monitor the progress and quality of the work completed and to
determine if the work is being performed in a manner indicating that the work, when
complete, will be in accordance with the Contract Documents.
14
2. Review and respond to properly prepared, timely requests from the Contractor for
additional information concerning the contract documents.
3. Review shop drawings, submittals, and pay estimates provided by the Contractor, and
maintain a record of all such communications in accordance with the requirements
of the contract documents.
4. Attend required meetings with regulatory agencies, including environmental pre -
construction and post - construction conferences scheduled with the City
Environmental Inspector, TPWD review, or any other regulatory reviewers assigned
to this Project.
5. If required, prepare Change Orders and construction Change Directives for the
approval and execution by the City in accordance with the contract documents.
6. Review properly prepared, timely requests from the City or the Contractor for
changes to the scope, duration, or cost of the work.
7. Conduct inspections of the work in order to determine the date of substantial
completion, and verify the satisfactory completion of the Project in accordance with
the contract documents.
8. Assist the City in completing the close -out documentation necessary to conclude the
construction phase of the Project, including preparation of a Letter of Concurrence
for the City upon successful completion of the Project.
9. Prepare any additional written communication to the City related to the construction
progress, as necessary.
Total for the Above Delineated Services, Including Reimbursables: $15,000.00
15
Mayor
Nyle Maxwell
Mayor Pro-tem
Tom Nielson
City Manager
James R. Nose. P.E.
City Attorney
Stephan L. Sheets
ROUND RO , TEXAS
PURPOSE. PASSION. PROSPERITY
August 25, 2003
Council Members
Alan McGraw
Carrie Pitt
Scot Knight Enclosure
Scott Rhode
Gary Coe
Mr. Tim Bargainer
Vice President
Hall /Bargainer, Inc.
400 West Main Street, Suite 220
Round Rock, TX 78664
Dear Mr. Bargainer:
The Round Rock City Council approved Resolution No. R- 03- 08 -14-
14A2 at their regularly scheduled meeting on August 14, 2003. This
Resolution approves the agreement for Consulting Services for design
and construction consulting services in connection with the Buck
Egger Park 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.
Sherri Monroe
Assistant City Secretary
CITY OF ROUND ROCK Administrative Dept., 221 East Main Street • Round Rock, Texas 78664
Phone: 512.218.5400 • Fax: 512.218.7097 • www.cisound-rock.tx.us