CM-05-03-048QVtG
Request for City Council/City Manager Action ""
Please submit this form when placing items on the council agenda or when submitting an item to the City Manager for approval.
Department:
Contact Person:
Project Name:
Utility Administration
Latha/Laura (Don Rundell) Council Meeting Date: N/A
Westinghouse Wells Optimization Analysis
Project Manager/Resource: Don Rundell
ContractorNendor Name: R.W. Harden & Associates, Inc.
Amount:
$4,800.00
Is Funding Required?
Council Agenda Item
Submission to City Manager -
Yes
Yes
X
Funding Source:
Assigned Attorney:
Capital Project Funds (Self -Financed Utility)
J Kay
(contract, agreement,amendment,change order, purchase order,etc.)
Non Please use funds from wt02barton
``-.
No
X
Yes n No - -/1 b5 keick..9(Y) .D
(see required signatures below before submission to the City Manager) 0 G (""\f Vi V'
Agenda Wording:
❑ Initial Construction Contract
❑ Construction Contract Amendment
❑ Change Order
=Change in Quantity
=Unforeseen Circumstances
X❑ Initial Professional Services Agreement
❑ Supplemental Professional Svcs. Agr. #
Purchasing/Service Agreement
Purchase Order
Item(s) to be purchased:
Amount
$4,800
❑ Other (Please clearly identify action on lines below)
Consider an action by the City Manager to enter into a contract for Engineering Services with
R.W. Harden & Associates, Inc. for the Westinghouse Wells Optimization Analysis.
La41.1c�
For Submission to City M1a1
Project Mgr. Signature:
Dept. Director Signature:
City Attorney Signature:
City Manager Signature:
Date: 3-09-4,j
Date: S -'DUOS
Date:3 /D -11J
Date:
pproval is required for all items requesting City Manager's approval.
Finance Approval
Finance -Date and Signature:
❑ Purchasing -Date and Signature:
X❑ Budget -Date and Signature:
L. Olsen 3-8-05
N/A ESW 3/8/05
DATE: March 1, 2005
SUBJECT: City Manager Approval- March 11, 2005
ITEM: Consider an action by the City Manager to enter into a
contract for Engineering Services with R.W. Harden &
Associates, Inc. for the Westinghouse Wells Optimization
Analysis.
Department:
Staff Person:
Water and Wastewater Utilities
Tom Clark, Utilities Director
Don Rundell, Chief Utility Engineer
Justification:
Several options are available to access additional ground water from our
existing wells at the Westinghouse Tank site. R.W. Harden & Associates, Inc. will
evaluate the well yields at average and historic high and low reservoir stages.
They will make recommendations for acidizing or any other options for
increasing the capacity of these two wells.
Funding:
Cost:
Source of funds:
Outside Resources:
Background Information:
$4,800.00
Capital Project Funds (Self -Financed Utility)
R.W. Harden & Associates, Inc.
The two wells at the Westinghouse Tank Site were originally developed in the
early eighties and were acidized at that time to maximize there production. The
wells and pump station need to be rehabilitated and this evaluation is needed
prior to developing the final rehabilitation plan. The analysis will provide a report
on the acidizing option and additional options, along with the cost for each
option.
Public Comment: N/A
ru
i
fi
t a �
' war
r s
w E NOT TO SCALE WESTINGHOUSE WELLS
�nM/Mce'f'ttattt A�enAs I�ema4Engiroxinp�2'kW iYJile'UN2NXC§lm4�u_a.m.d-'.nal2tpa�:.v.ss PM
AGREEMENT FOR CONSULTING SERVICES WITH
R.W. HARDEN & ASSOCIATES, INC.
FOR EVALUATION AND ASSESSMENT SERVICES
RELATING TO OPTIMIZING WELL YIELDS
This Agreement (hereinafter referred to as the "Agreement") is made by and between the
City of Round Rock, a Texas home -rule municipal corporation, with offices located at 221 East
Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and R.W.
Harden & Associates, Inc., with offices located at 3409 Executive Center Drive, Suite 226,
Austin, Texas 78731 (hereinafter referred to as "RWH&A" or the "Consultant").
This Agreement is for consulting services relating to conducting tests and performing
evaluations of the City's North and South Westinghouse wells to assess and provide
recommendations for optimizing the yields of the wells.
RECITALS:
WHEREAS, the City has determined that there is a need for the delineated consulting
services; and
WHEREAS, the City desires to contract for such consulting services; 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:
SECTION 1: EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than twelve (12) months from the effective date
of this Agreement.
The City reserves the right to review this Agreement at any time, including at the end of
any deliverable, task, or phase, and may elect to terminate this Agreement with or without cause
or may elect to continue.
00083674/jkg
c rn - oo o3 -04e
SECTION 2: CONTRACT AMOUNT
In consideration for the professional consulting services to be performed by Consultant,
the City agrees to pay Consultant a total sum not to exceed Four Thousand Eight Hundred and
No/100 Dollars ($4,800.00). Said sum of $4,800.00 shall be paid for services and the Scope of
Services deliverables as delineated in Section 3 of this Agreement. This amount is a fixed not -
to -exceed amount for consulting services, and such amount does not include expenses which are
defined as reimbursable under this Agreement as delineated in Section 4.
SECTION 3: SCOPE OF SERVICES
For purposes of this Agreement, Consultant has issued its Scope of Services for the tasks
delineated herein. Such Scope of Services is contained in this Section 3. This Agreement and
any exhibits shall evidence the entire understanding and agreement between the parties and shall
supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services and deliverables described under the
referenced Scope of Services within the contract term specified in Section 1. Consultant's
undertakings shall be limited to performing services for the City and advising the City
concerning those matters on which Consultant has been specifically engaged. Consultant shall
perform its services in accordance with this Agreement and the referenced Scope of Services.
Consultant shall perform its services in a professional and workmanlike manner.
Consultant shall not undertake work beyond the Scope of Services set forth in Section 3.
However, either party may make written requests for changes to the Scope of Services. To be
effective, a change to the Scope of Services must be negotiated and agreed to in all relevant
details, and must be embodied in a valid Supplemental Agreement as described in Section 5.
Scope of Services
Task 1 - Data Compilation and Analysis ($800.00)
Consultant shall compile groundwater information from a variety of sources including
but not limited to the Texas Water Development Board (TWDB), the Texas Natural Resource
Conservation Commission (TNRCC), its own RWH&A files, and as needed from Smith Pump
Company files.
Consultant shall receive and review materials from the City including but not limited to
available pumping rates, production volumes, and static and pumping water levels, such data to
be derived from the City's own files. Consultant shall review such data for historic high and
low aquifer reservoir stages, well specific capacities with reservoir stage, previous acidizing
operations on each of the wells, and historic and current pumping capacities of each of the
wells.
2
Task 2 - Well Testing ($1,400.00)
To the maximum extent the existing pumping equipment and configuration of the
South well allows, Consultant shall test the South well for yield, drawdown, and specific
capacity. Additionally, Consultant shall conduct an interference test on the North well while
the South well is pumping. Consultant shall use the pumping test to assess the specific
capacity of the South well, to evaluate whether acidizing of the South well has occurred by
comparison of current and historic specific capacities, and to determine interference drawdown
between the South well and the North well so that pumping levels can be determined at
different reservoir stages.
Because the North well has no pumping equipment, the North well will not be tested by
Consultant.
Task 3 - Evaluation and Reporting ($2,600.00)
Consultant shall compile all information, review same, and analyze same to address the
following:
(1)
(2)
Recommended well yields at average and historic high and low reservoir stages;
Recommendations for acidizing or any other options for increasing the capacity
of both of the wells; and
(3) Equipment and operational considerations to maximize production from both of
the wells.
Consultant shall provide the City with letter reports providing, at a minimum, the
information delineated in this Task 3.
SECTION 4: PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, the City agrees to pay Consultant the following "Payment for Services:"
Fees for deliverables from the listed tasks in the total amount of Four Thousand Eight
Hundred and No/100 Dollars ($4,800.00) shall be paid by the City monthly, upon invoice, in
accordance with the terms contained herein in Section 6.
Payment for Reimbursable Expenses: Payment for customary reimbursable expenses
shall be paid by the City to Consultant, as appropriately invoiced and documented, at actual cost.
Reimbursable expenses shall include the following:
(1) Reproductions by Consultant's graphics department, with said charges being limited
to the amount customarily charged for similar commercial services;
3
(2) Transportation in Consultant's company or personal vehicles, with said charges
being limited to $0.40 per mile, with an additional charge of $22.00 per day being
levied for vehicles utilized at field sites;
(3)
Use of Consultant's field equipment including but not limited to GPS equipment,
steel tapes, electric lines, conductivity, pH and turbidity meters, computers, water
level transducers, and organic vapor monitors, with said charges being limited to
the amount customarily charged for similar equipment rentals;
(4) Other miscellaneous expenses approved in advance by the City including but not
limited to reproduction costs, transportation costs, meals and lodging, parking and
taxi fares, long distance telephone charges, printing, maps and photographs, field
supplies, equipment rental, shipping, test drilling, well construction, and test
laboratories, with said charges being limited to actual invoice cost.
Not -to -Exceed Total Payment for Services: Unless subsequently changed by
Supplemental Agreement to this Agreement, Consultant's total compensation for consulting
services hereunder, not including reimbursable expenses, shall not exceed Four Thousand Eight
Hundred and No/100 Dollars ($4,800.00). This amount represents the absolute limit of the
City's liability to Consultant hereunder unless same shall be changed by additional Supplemental
Agreement, and the City shall pay, strictly within the confines of the not -to -exceed sum recited
herein, Consultant's professional fees for work done on behalf of the City.
Deductions: No deductions shall be made for 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 the City or denied.
SECTION 5: SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by the City Council or the City Manager, if the City determines that there
has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
the City shall not be responsible for actions by Consultant nor for any costs incurred by
Consultant relating to additional work not directly authorized by Supplemental Agreement.
4
SECTION 6: INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payments hereunder for services rendered and for reimbursable
expenses, Consultant shall prepare and submit detailed progress invoices to the City. Such
invoices for professional services shall track the referenced Scope of Services, and shall detail
the services performed, along with documentation for each service performed. Payment to
Consultant shall be made on the basis of the invoices submitted by Consultant and approved by
the City. Such invoices shall conform to the schedule of services and costs in connection
therewith.
Should additional backup material be requested by the City relative to service
deliverables, Consultant shall comply promptly. In this regard, should the City determine it
necessary, Consultant shall make all records and books relating to this Agreement available to
the City for inspection and auditing purposes.
Payment of Invoices: The City reserves the right to correct any error that may be
discovered in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of an invoice, the City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 10 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and the City or because of amounts which the City has a right to withhold under this Agreement
or state law. The City shall be responsible for any sales, gross receipts or similar taxes
applicable to the services, but not for taxes based upon Consultant's net income.
SECTION 7: REQUIRED DRAFT REPORTS AND FINAL REPORT
Consultant agrees to provide the City with all required draft reports, progress reports, and
detailed final written reports, together with all information gathered and materials developed
during the course of the project. Additionally, Consultant agrees to provide the City with oral
presentations of such written reports, at the City's designation and at no additional cost to the
City provided such presentations are scheduled within the term of this Agreement. Consultant
agrees to provide the City with copies of the reports as directed by the City, and a version of the
final report in digital format.
SECTION 8: LIMITATION TO SCOPE OF SERVICES
Consultant and the City agree that the scope of services to be performed is enumerated in
Section 3 herein, and may not be changed without the express written agreement of the parties.
Notwithstanding anything herein to the contrary, the parties agree that the City retains absolute
discretion and authority for all funding decisions, such to be based solely on criteria accepted by
the City which may be influenced by but not be dependent on Consultant's work.
5
SECTION 9: NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of the City's current revenues only. It is understood and
agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal
year if the governing body of the City does not appropriate funds sufficient to purchase the
services as determined by the City's budget for the fiscal year in question. The City may effect
such termination by giving Consultant a written notice of termination at the end of its then
current fiscal year.
SECTION 10: 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 the City receives the
performance, supplies, materials, equipment, and/or deliverables, 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 the City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee of one percent (1%) for payments not made
in accordance with this prompt payment policy; however, this policy does not apply to payments
made by the City in the event:
(1)
There is a bona fide dispute between the City and Consultant concerning the
supplies, materials, or equipment delivered or the services performed which
causes the payment to be late; or
(2) The terms of a federal contract, grant, regulation, or statute prevent the City from
making a timely payment with federal funds; or
There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
(4) Invoices are not mailed to the City in strict accordance with instructions, if any,
on the purchase order or the Agreement or other such contractual agreement.
(3)
SECTION 11: TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that the City may terminate this
Agreement for the convenience of the City, upon thirty (30) days' written notice to Consultant,
with the understanding that immediately upon receipt of said notice all work being performed
under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily
completed and shall be compensated in accordance with the terms hereof for work accomplished
prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related to this project shall become the
property of the City upon termination of this Agreement, and shall be promptly delivered to the
6
City in a reasonably organized form without restriction on future use. Should the City
subsequently contract with a new consultant for continuation of service on the project,
Consultant shall cooperate in providing information.
Termination of this Agreement shall extinguish all rights, duties, and obligations of the
City and the terminated party to fulfill contractual obligations. Termination under this section
shall not relieve the terminated party of any obligations or liabilities which occurred prior to
termination.
Nothing contained in this section shall require the City to pay for any work which is
unsatisfactory as determined by the City or which is not submitted in compliance with the terms
of this Agreement.
Default: The City may terminate this Agreement, in whole or in part, for default if the
City provides Consultant with written notice of such default and Consultant fails to cure such
default to the satisfaction of the City within ten (10) business days of receipt of such notice (or a
greater time if permitted by the City).
If Consultant defaults in performance of this Agreement and if the City terminates this
Agreement for such default, the City shall give consideration to actual costs incurred by
Consultant in performing the work to the date of default. The cost of the work useable to the
City, the cost to the City of employing another firm to complete the useable work, and other
relevant factors will affect the value to the City of work performed at time of default. Consultant
shall not be entitled to any lost or anticipated profits for work terminated for default hereunder.
The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of City and the terminated party to fulfill contractual obligations. Termination under
this section shall not relieve the terminated party of any obligations or liabilities which occurred
prior to termination.
Nothing contained in this section shall require the City to pay for any work with is
unsatisfactory as determined by the City, or which is not submitted in compliance with the terms
of this Agreement.
SECTOIN 12: INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and the 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 hereof.
7
(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.
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and the City shall not hire, supervise, or pay assistants to help
Consultant.
(3)
(5)
Neither Consultant nor its employees or subcontractors shall receive training from
the City in skills necessary to perform services required by this Agreement.
(6) The City shall not require Consultant or its employees or subcontractors to devote
full time to performing the services required by this Agreement.
Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of the City.
(7)
SECTION 13: NON -SOLICITATION
Except as may be otherwise agreed in writing, during the term hereof and for twelve (12)
months thereafter, neither the City nor Consultant shall offer employment to or employ any
person employed then or within the preceding twelve (12) months by the other or any affiliate if
such person was involved, directly or indirectly, in the performance of this Agreement.
SECTION 14: CITY'S RESPONSIBILITIES
Full information: The City shall provide full information regarding project
requirements. The City shall have the responsibility of providing Consultant with such
documentation and information as is reasonably required to enable Consultant to provide the
services called for. The City shall cause its employees and any third parties who are otherwise
assisting, advising or representing the City to cooperate on a timely basis with Consultant in the
provision of its services. Consultant may rely upon written information provided by the City and
its employees and agents as accurate and complete. Consultant may rely upon any written
directives provided by the City or its designated representative concerning provision of services.
Required materials: Consultant's performance requires receipt of all requested
information reasonably necessary to provision of services. The City shall furnish information
which includes but is not limited to access to the City's property, preliminary information and/or
data regarding the City, pertinent correspondence with other local municipal and planning
officials, previous analyses or studies, and other pertinent information. Consultant agrees, within
ten (10) days of the effective date of this Agreement, to provide the City with a comprehensive
and detailed information request list.
8
SECTION 15: CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by the City for use by Consultant
in connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any
proprietary or confidential information relative to this Agreement, and to not make any use
thereof other than for the performance of this Agreement, provided that no claim may be made
for any failure to protect information that occurs more than three (3) years after the end of this
Agreement.
The parties recognize and understand that the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
All data relating specifically to the City's business and any other information which
reasonably should be understood to be confidential to the City is confidential information of the
City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries,
inventions, know-how, and any other information which reasonably should be understood to be
confidential to Consultant is confidential information of Consultant. The City's confidential
information and Consultant's confidential information is collectively referred to as "Confidential
Information." Each party shall use Confidential Information of the other party only in
furtherance of the purposes of this Agreement and shall not disclose such Confidential
Information to any third party without the other party's prior written consent, which consent
shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the
confidentiality of the other party's Confidential Information and to advise their employees of the
confidential nature of the Confidential Information and of the prohibitions herein.
Notwithstanding anything to the contrary contained herein, neither party shall be
obligated to treat as confidential any information disclosed by the other party (the "Disclosing
Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is released by the Disclosing Party to any other person or entity (including
governmental agencies) without restriction; (3) is independently developed by the recipient
without any reliance on Confidential Information; or (4) is or later becomes publicly available
without violation of this Agreement or may be lawfully obtained by a party from any non-party.
Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information
of the other to a third party as may be required by law, statute, rule or regulation, including
subpoena or other similar form of process, provided that (without breaching any legal or
regulatory requirement) the party to whom the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein
shall preclude or limit Consultant from providing similar services for other clients.
Neither the City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
9
00
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered under the terms of this Agreement (the "Deliverables"); and Consultant
shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques,
processes, software, or other similar information which may have been discovered, created,
developed or derived by Consultant either prior to or as a result of its provision of services under
this Agreement (other than the Deliverables). Consultant's working papers and Consultant's
Confidential Information (as described herein) shall belong exclusively to Consultant. The City
shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information
for the City's own use including for the purposes for which they were delivered.
SECTION 16: WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re -perform any work not in compliance
with this warranty. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 17: LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of this Agreement,
then and in that event the City shall give written notification to Consultant; thereafter, (a)
Consultant shall either promptly re -perform such services to the City's satisfaction at no
additional charge, or (b) if such deficient services cannot be cured within the cure period set
forth herein in Section 11, then this Agreement may be terminated for default.
In no event will Consultant be liable for any loss, damage, cost or expense attributable to
negligence, willful misconduct or misrepresentations by the City, its directors, employees or
agents.
In no event shall Consultant be liable to the City, by reason of any act or omission
relating to the services provided under this Agreement (including the negligence of Consultant),
whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit,
punitive, special or similar damages relating to or arising from the services, or (b) in any event,
in the aggregate, for any amount in excess of the total professional fees paid by the City to
Consultant under this Agreement, except to the extent determined to have resulted from
Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service
provided hereunder.
10
SECTION 18: INDEMNIFICATION
Consultant and the City each agree to indemnify and hold harmless the other from and
against any and all amounts payable under any judgment, verdict, court order or settlement for
death or bodily injury or the damage to or loss or destruction of any real or tangible personal
property to the extent arising out of the indemnitor's negligence in the performance hereof.
The indemnities in this section are contingent upon: (1) the indemnified party promptly
notifying the indemnifying party in writing of any claim which gives rise to a claim for
indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense
and settlement of such claim; and (3) the indemnified party cooperating with all reasonable
requests of the indemnifying party (at the indemnifying party's expense) in defending or settling
a claim. The indemnified party shall have the right, at its option and expense, to participate in
the defense of any suit or proceeding through counsel of its own choosing.
SECTION 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 may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval, which approval shall not be unreasonably withheld.
SECTION 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. The City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3)
Withhold any state or federal income tax from any payments made to Consultant.
If requested, the City shall provide a certificate from the Texas State Comptroller
showing the City as a non-profit corporation not subject to State of Texas Sales and Use Tax.
SECTION 21: INSURANCE
Workers' Compensation Insurance. Consultant, at Consultant's sole cost, shall have
and maintain during the term of this Agreement the following insurance coverage: as to claims
covered by Workers' Compensation, the amount of the statutory limits for any state in which
operations are to be performed and Employer's Liability Insurance with limits of not less than
$100,000.
11
Motor Vehicle Insurance. Consultant, at Consultant's sole cost, shall have and maintain
during the term of this Agreement the following insurance coverage: insurance upon each motor
vehicle used by Consultant in connection with the work provided hereunder, providing public
liability coverage as to such vehicle or vehicles of not less than $250,000 for one injury and
$500,000 for all injuries, in one accident, and property damage coverage of not less than
$100,000 applying to any one loss.
Comprehensive General Liability Insurance. Consultant, at Consultant's sole cost,
shall have and maintain during the term of this Agreement the following insurance coverage: a
comprehensive general liability policy providing bodily injury coverage, including death, for not
less than One Million Dollars as to each occurrence and Two Million Dollars aggregate.
Professional Liability 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 One Million Dollars from a company authorized to do insurance business
in Texas and otherwise acceptable to the City.
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. The 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
the City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify the City, within twenty-four (24) hours of receipt, of
any notices of expiration, cancellation, non -renewal, or material change in coverage
it receives from its insurer.
12
(2) Companies issuing the insurance policies shall have no recourse against the City for
payment of any premiums or assessments for any deductibles which all are at the
sole responsibility and risk of Consultant.
(3)
Terms "the City" or "the City of Round Rock" shall include all authorities, boards,
commissions, departments, and officers of the 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 the City, to any future coverage, or to City's Self -Insured
Retentions of whatever nature.
(5)
Consultant and the 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.
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.
SECTION 22: COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
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,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and all of the same shall belong solely to the City at the expiration of the term of this
Agreement.
SECTION 23: 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 under this
Agreement.
SECTION 24: DESIGNATION OF REPRESENTATIVES
The City hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
13
Tom Clark
Director of Utilities
212 Commerce
Round Rock, Texas 78664
Telephone: 512-218-5562
Facsimile: 512-218-3242
Email: tclark@round-rock.tx.us
Consultant hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Ridge Kaiser, P.E.
3409 Executive Center Drive, Suite 226
Austin, Texas 78731
Telephone: 512-345-2379
Facsimile: 512-338-9372
Email: ridge@hardin-assoc.com
SECTION 25: NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Notice to City:
Ridge Kaiser, P.E., President
R.W. Harden & Associates, Inc.
3409 Executive Center Drive, Suite 226
Austin, Texas 78731
James R. Nuse, P.E.
City Manager
City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO
Stephan L. Sheets
City Attorney
309 East Main Street
Round Rock, TX 78664
14
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of the City and Consultant.
SECTION 26: APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to enforcement of any of the terms or conditions herein,
exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
SECTION 27: EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including exhibits, constitute the entire
agreement between the parties and supersede all previous communications, representations, and
agreements, either written or oral, with respect to the subject matter hereof. The parties
understand and expressly agree that, in the event of any conflict between the terms of this
Agreement and any other writing, this Agreement shall prevail. No modifications of this
Agreement will be binding on any of the parties unless acknowledged in writing by the duly
authorized governing body or representative for each party.
SECTION 28: DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
the City shall select one mediator and Consultant shall select one mediator and those 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.
The City and Consultant hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute.
SECTION 29: FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
15
Consultant shall not be deemed to be in default of its obligations to the City if its failure
to perform or its substantial delay in performance is due to the City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
SECTION 30: SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
SECTION 31: STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted industry and business practices.
SECTION 32: GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
No delay or omission by either party in exercising any right or power shall impair such
right or power or be construed to be a waiver. A waiver by either party of any of the covenants
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in
writing and signed by an authorized representative of the party against whom such waiver or
discharge is sought to be enforced.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered one original. The City agrees to provide Consultant with one fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
16
City of Round Rock, Texas Att
By:
Printed N
Title:
Date Signe
,Joarnes R• NQS%R L • Christine R. Martinez, City Secretary
Date Signed:
Approved as to Form:
Stephafi L. Sheets, City Attorney
Date Signed: 3•?7.0S
17
R.W. Harden & Associates, Inc.
Printed N
Title:
Date Signed: 07
03/10/2005 14:06 FAX 5122185563
Mar 10 OS 02:OGp Harden
CORR PUBLIC WORKS
4 SHEETS U1001
512-339-9372 p,z
CERTIFICATE OF LIABILITY INSURANCE Date: Mardi 10, 2005
PRODUCER
USI InsuraUee Services
1946 S. IH -35 Suite 301 Liberty Insurance Underwriters. Inc
Austin, TX 78704 B
INSURED C
R.W. Barden Sr Associates, Inc.
3409 Executive Center Dr. 4226
Arson. TX 78731
THIS IS TO CERTIFY THAT the Insured named above is insured by thc 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 arc noted below.
COMPANIES AFFORDING COVERAGE
CO TYPE OF POLICY EFFECITVE EXPIRATION Llhxil'S
LTR INSURANCE NUMBER DATE DATE
GENLItA1. LIABILITY
GENERAL AGGREGATE S
PRODUCTS-COMP/OP AGO. 5
PERSONAL & ADV. INJURY S
EACH OCCURRENCE S
FIRE DAMAGE (Any one fire) 5
MED. IDQ'UNS2 (Any ane (+Icon) S
AuToMOaILE /,/ABILITY
COMBINED SINOue 1: 41T
BODILY INJURY (Pay' tenon) 5
IIOD1<.Y INJURY (Pa Incident) S
PROPERTY DAMAGE S
EXCESS LIABILITY
EACH OCCURRk 4CE T
AGGREGATE
WORKERS' COMPENSATION
.AND ENPI.OY13(S• LIABILITY
STATUTORY UMTS
EACH ACCIDixIT
DISEASE -.Policy 1.OmrT
DISEASE - EALII EmaLOYEE
S
S
S
A
PROFESSIONAL LIABILITY AEEI961930104 04/25/04 04/1.5/01 SI/000,000/Claim 51,000,000/45r e
Ram Ihoc 0425/95
Pedue:lc S 35,000
BESCRIrTION OF OPERATIQNSILOCATIONsiva tCLES/sraciAL rrEASS/ECCEPI10NS
The City or Round Rock is named as additional blared with nam to all policies accept 'Workers' Compensation and Employers' L.iabffity' and
'Professional Liability'. Should any of the abate described la:dicks be cancelled or changed before the expiration data thccol: thc Lotting
company will mail thirty (30) days written notice to the Catifigute holder named below.
CERTIFICATE HOLDER: City Manager
City of Round Rock
221 E. Main Sareet
Round /tock. Tamen 78664
SIGNATU OP AUTHORIZED REPRESENTATIVE
(
TypcdName: Sim ijmns crson
Tota: Executive Agent
Page 1
00650 — 7/2003 Certificate of Liability Insurance
03/10/2005 THU 14:00 (TT/R% NO 9627) Q5002