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CM-05-11-199Request for City Council/City Manager Action City Council v City Manager Department Name: Engineering & Development Services Contact Person: Latha Kumar/Laura Flores Project Manager/ReSOUrce: Ruth Habeman, PE Project Coordinator: Assigned Attorney: Steve Sheets Council or City Manager Agenda Date: 11/18/2005 Blue Sheet Wording Action authorizing the City Manager to execute a contract for Professional Engineering Services with Freese and Nichols, Inc. for the Forest Creek Golf Course - Fairway #9 Improvements Project. For Administration Use ONLY Tag #Cwt -05'11• l Documents Received: Return to: Return date: CC: Lynn Olsen Project Name: Forest Creek Golf Course - Fairway #9 Improvements ContractorNendor: Freese and Nichols, Inc. Funding Source: Golf Course Construction Fund Amount: $19,997.60 Finance Information Is Funding Required? Yes No Initial Construction Contract Construction Contract Amendment # Change Order # Change in Quantity Unforeseen Circumstances Initial Professional Services Agreement Supplemental Professional Svcs. A # EJPurchasing/Service Agreement Purchase Order Item(s) to be purchased: Amount $19,997.60 Other (Please clearly identify action on lines below) Finance Approval Finance Date Finance Date Purchasing Date Budget Date For Submission to Citv Manager Onlv Project Mgr. Signature: Dept. Director Signature: City Attorney Signature*: City Manager Signature: * g. Approval is required for all items requesting City Manager's approval, Date: Date: it -(g' -©s Updated 3-9-05 Request for City Council/City Manager Action ILIJ City Council ,r:iZ[1 City Manager Submit completed form for all City Manager and City Council approvals. Department Name: Engineering & Development Services Contact Person: Latha Kumar/Laura Flores Project Manager/Resource: Ruth Habeman, PE Project Coordinator: Assigned Attorney: Steve Sheets Council or City Manager Agenda Date: 11/18/2005 Blue Sheet Wording For Administration Use ONLY Tag # Documents Received: Return to: Retum date: CC: Ric Bowden Project Name: Forest Creek Golf Course - Fairway #9 Improvements ContractorNendor: Freese and Nichols, Inc. Funding Source: Golf Course Construction Fund Amount: $19,997.60 Action authorizing the City Manager to execute a contract for Professional Engineering Services with Freese and Nichols, Inc. for the Forest Creek Golf Course - Fairway #9 Improvements Project. Finance Information Is Funding Required? MI Yes niNo Initial Construction Contract Construction Contract Amendment # Change Order Change in Quantity Unforeseen Circumstances Initial Professional Services Agreement Supplemental Professional Svcs. A # Purchasing/Service Agreement Purchase Order Item(s) to be purchased: Amount $19,997.60 Q Other (Please clearly identify action on lines below) Finance Approval Finance L. Olsen Date 11/16/2005 0Finance E. Wilson Date 11/16/2005 LJPurchasing HB Date 11/16/2005 JBudget N/A CYD Date 11/16/2005 For Submission to City Manager Only Project Mgr. Signature: Date: Dept. Director Signature: Date: City Attorney Signature*: Date: City Manager Signature: Date: " Legal Approval is required for all items requesting City Manager's approval. Updated 3-9-05 /ROUND ROCK. TEXAS PURPOSE, PASSION. PROSPERITY. CITY OF ROUND ROCK CONTRACT FOR ENGINEERING SERVICES FIRM: FREESE AND NICHOLS, INC. ("Engineer") ADDRESS: 10814 Jollyville Road, Building 4, Suite 100, Austin, TX 78759 PROJECT: FOREST CREEK GOLF COURSE - FAIRWAY #9 IMPROVEMENTS THE STATE OF TEXAS COUNTY OF WILLIAMSON T IS CONTRACT FOR ENGINEERING SERVICES ("Contract") is made and entered into on this the 13 day of NOYY?13 Q- , 2005 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 Engineer, and such Contract is for the purpose of contracting for professional engineering services. RECITALS: WHEREAS, V.T.C.A., Government Code §2254.002(2)(A)(vii) under Subchapter A entitled "Professional Services Procurement Act" provides for the procurement by municipalities of services of professional engineers; and WHEREAS, City and Engineer desire to contract for such professional engineering services; and WHEREAS, City and Engineer wish to document their agreement concerning the requirements and respective obligations of the parties; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable considerations, and the covenants and agreements hereinafter contained to be kept and performed by the respective parties hereto, it is agreed as follows: Engineering Services Contract File Name: freese-frstcrk#9; GFOOCAPINV; 92727 1 FG 11 Ic4c Rev. 04/06/05 00064494 CONTRACT DOCUMENTS The Contract Documents consist of this Contract and any exhibits attached hereto (which exhibits are hereby incorporated into and made a part of this Contract) and all Supplemental Contracts (as defined herein in Article 13) which are subsequently issued. These form the entire contract, and all are as fully a part of this Contract as if attached to this Contract or repeated herein. ARTICLE 1 CITY SERVICES City shall perform or provide services as identified in Exhibit A entitled "City Services." ARTICLE 2 ENGINEERING SERVICES Engineer shall perform Engineering Services as identified in Exhibit B entitled "Engineering Services." Engineer shall perform the Engineering Services in accordance with the Work Schedule as identified in Exhibit C entitled "Work Schedule." Such Work Schedule shall contain a complete schedule so that the Engineering Services under this Contract may be accomplished within the specified time and at the specified cost. The Work Schedule shall provide specific work sequences and definite review times by City and Engineer of all Engineering Services. Should the review times or Engineering Services take longer than shown on the Work Schedule, through no fault of Engineer, Engineer may submit a timely written request for additional time, which shall be subject to the approval of the City Manager. ARTICLE 3 CONTRACT TERM (1) Term. The Engineer is expected to complete the Engineering Services described herein in accordance with the above described Work Schedule. If Engineer does not perform the Engineering Services in accordance with the Work Schedule, then City shall have the right to terminate this Contract as set forth below in Article 20. So long as the City elects not to terminate this Contract, it shall continue from day to day until such time as the Engineering Services are completed. Any Engineering Services performed or costs incurred after the date of termination shall not be eligible for reimbursement. Engineer shall notify City in writing as soon as possible if he/she/it determines, or reasonably anticipates, that the Engineering Services will not be completed in accordance with the Work Schedule. (2) Work Schedule. Engineer acknowledges that the Work Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of Engineering Services required herein so that construction of the project will be commenced and completed as scheduled. In this regard, and subject to adjustments in the Work Schedule as provided in Article 2 herein, Engineer shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all Engineering Services required under this Contract in a professional manner. 2 (3) Notice to Proceed. After execution of this Contract, Engineer shall not proceed with Engineering Services until authorized in writing by City to proceed as provided in Article 7. ARTICLE 4 COMPENSATION City shall pay and Engineer agrees to accept the amount shown below as full compensation for the Engineering Services performed and to be performed under this Contract. The amount payable under this Contract, without modification of the Contract as provided herein, is the sum of Nineteen Thousand Nine Hundred Ninety-seven and 60/100 Dollars ($ 19,997.60 ) as shown in Exhibit D. The lump sum amount payable shall be revised equitably only by written Supplemental Contract in the event of a change in Engineering Services as authorized by City. Engineer shall prepare and submit to City monthly progress reports in sufficient detail to support the progress of the Engineering Services and to support invoices requesting monthly payment. Any preferred format of City for such monthly progress reports shall be identified in Exhibit B. Satisfactory progress of Engineering Services shall be an absolute condition of payment. The fee herein referenced may be adjusted for additional Engineering Services requested and performed only if approved by written Supplemental Contract. ARTICLE 5 METHOD OF PAYMENT Payments to Engineer shall be made while Engineering Services are in progress. Engineer shall prepare and submit to City, not more frequently than once per month, a progress report as referenced in Article 4 above. Such progress report shall state the percentage of completion of Engineering Services accomplished during that billing period and to date. Simultaneous with submission of such progress report, Engineer shall prepare and submit one (1) original and one (1) copy of a certified invoice in a form acceptable to City. This submittal shall also include a progress assessment report in a form acceptable to City. Progress payments shall be made in proportion to the percentage of completion of Engineering Services identified in Exhibit D. Progress payments shall be made by City based upon Engineering Services actually provided and performed. Upon timely receipt and approval of each statement, City shall make a good faith effort to pay the amount which is due and payable within thirty (30) days. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. Engineer has the responsibility to submit proof to City, adequate and sufficient in its determination, that tasks were completed. The certified statements shall show the total amount earned to the date of submission and shall show the amount due and payable as of the date of the current statement. Final payment does not relieve Engineer of the responsibility of correcting any errors and/or omissions resulting from his/her/its negligence. 3 ARTICLE 6 PROMPT PAYMENT POLICY hi accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Engineer will be made 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 services, whichever is later. Engineer 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 in the event: A. There is a bona fide dispute between City and Engineer concerning the supplies, materials, or equipment delivered or the services performed that causes the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Engineer and a subcontractor or between a subcontractor and its supplier concerning supplies, materials, or equipment delivered or the Engineering Services performed which causes the payment to be late; or D. The invoice is not mailed to City in strict accordance with instructions, if any, on the purchase order, or this Contract or other such contractual agreement. City shall document to Engineer the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non -disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A., Texas Government Code. ARTICLE 7 NOTICE TO PROCEED The Engineer shall not proceed with any task listed on Exhibit B until the City has issued a written Notice to Proceed regarding such task. The City shall not be responsible for work performed or costs incurred by Engineer related to any task for which a Notice to Proceed has not been issued. ARTICLE 8 PROJECT TEAM City's Designated Representative for purposes of this Contract is as follows: Ruth S. Haberman, P.E. Engineer 2008 Enterprise Round Rock, Texas 78664 Telephone Number (512) 218-6605 Fax Number (512) 218-5563 Email Address rhaberman@round-rock.tx.us 4 City's Designated Representative shall be authorized to act on City's behalf with respect to this Contract. City or City's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Engineer in order to avoid unreasonable delay in the orderly and sequential progress of Engineering Services. Engineer's Designated Representative for purposes of this Contract is as follows: Jerome (Jay) W. Scanlon, P.E. Project Manager 10814 Jollyville Road, Building 4, Suite 100 Austin, TX 18'09 Telephone Number (512) 451-7955 Fax Number (512) 451-7956 Email Address jws@freese.com ARTICLE 9 PROGRESS EVALUATION Engineer shall, from time to time during the progress of the Engineering Services, confer with City at City's election. Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by City, in order for City to evaluate features of the Engineering Services. At the request of City or Engineer, conferences shall be provided at Engineer's office, the offices of City, or at other locations designated by City. When requested by City, such conferences shall also include evaluation of the Engineering Services. Should City determine that the progress in Engineering Services does not satisfy the Work Schedule, then City shall review the Work Schedule with Engineer to determine corrective action required. Engineer shall promptly advise City in writing of events which have or may have a significant impact upon the progress of the Engineering Services, including but not limited to the following: (1) Problems, delays, adverse conditions which may materially affect the ability to meet the objectives of the Work Schedule, or preclude the attainment of project Engineering Services units by established time periods; and such disclosure shall be accompanied by statement of actions taken or contemplated, and City assistance needed to resolve the situation, if any; and (2) Favorable developments or events which enable meeting the Work Schedule goals sooner than anticipated. 5 ARTICLE 10 SUSPENSION Should City desire to suspend the Engineering Services, but not to terminate this Contract, then such suspension may be effected by City giving Engineer thirty (30) calendar days' verbal notification followed by written confirmation to that effect. Such thirty -day notice may be waived in writing by agreement and signature of both parties. The Engineering Services may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from City to resume the Engineering Services. Such sixty-day notice may be waived in writing by agreement and signature of both parties. If this Contract is suspended for more than thirty (30) days, Engineer shall have the option of terminating this Contract. If City suspends the Engineering Services, the contract period as determined in Article 3, and the Work Schedule, shall be extended for a time period equal to the suspension period. City assumes no liability for Engineering Services performed or costs incurred prior to the date authorized by City for Engineer to begin Engineering Services, and/or during periods when Engineering Services is suspended, and/or subsequent to the contract completion date. ARTICLE 11 ADDITIONAL ENGINEERING SERVICES If Engineer forms a reasonable opinion that any work he/she/it has been directed to perform is beyond the scope of this Contract and as such constitutes extra work, he/she/it shall promptly notify City in writing. In the event City fmds that such work does constitute extra work and exceeds the maximum amount payable, City shall so advise Engineer and a written Supplemental Contract will be executed between the parties as provided in Article 13. Engineer shall not perform any proposed additional work nor incur any additional costs prior to the execution, by both parties, of a written Supplemental Contract. City shall not be responsible for actions by Engineer nor for any costs incurred by Engineer relating to additional work not directly associated with the performance of the Engineering Services authorized in this Contract or any amendments thereto. ARTICLE 12 CHANGES IN ENGINEERING SERVICES If City deems it necessary to request changes to previously satisfactorily completed Engineering Services or parts thereof which involve changes to the original Engineering Services or character of Engineering Services under this Contract, then Engineer shall make such revisions as requested and as directed by City. Such revisions shall be considered as additional Engineering Services and paid for as specified under Article 11. Engineer shall make revisions to Engineering Services authorized hereunder as are necessary to correct errors appearing therein, when required to do so by City. No additional compensation shall be due for such Engineering Services. 6 ARTICLE 13 SUPPLEMENTAL CONTRACTS The terms of this Contract may be modified by written Supplemental Contract if City determines that there has been a significant change in (1) the scope, complexity or character of the Engineering Services, or (2) the duration of the Engineering Services. Any such Supplemental Contract must be duly authorized by the City. Engineer shall not proceed until the Supplemental Contract has been executed. Additional compensation, if appropriate, shall be identified as provided in Article 4. It is understood and agreed by and between both parties that Engineer shall make no claim for extra work done or materials furnished until the City authorizes full execution of the written Supplemental Contract and authorization to proceed. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. ARTICLE 14 OWNERSHIP OF DOCUMENTS All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this Contract are the exclusive property of City and shall be furnished to City upon request. All documents prepared by Engineer and all documents furnished to Engineer by City shall be delivered to City upon completion or termination of this Contract. Engineer, at its own expense, may retain copies of such documents or any other data which it has furnished City under this Contract. ARTICLE 15 PERSONNEL, EQUIPMENT AND MATERIAL Engineer shall furnish and maintain, at its own expense, quarters for the performance of all Engineering Services, and adequate and sufficient personnel and equipment to perform the Engineering Services as required. All employees of Engineer shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Engineer who, in the opinion of City, is incompetent or whose conduct becomes detrimental to the Engineering Services shall immediately be removed from association with the project when so instructed by City. Engineer certifies that it presently has adequate qualified personnel in its employment for performance of the Engineering Services required under this Contract, or will obtain such personnel from sources other than City. Engineer may not change the Project Manager without prior written consent of City. ARTICLE 16 SUBCONTRACTING Engineer shall not assign, subcontract or transfer any portion of the Engineering Services under this Contract without prior written approval from City. All subcontracts shall include the provisions required in this Contract and shall be approved as to form, in writing, by City prior to Engineering Services being performed under the subcontract. No subcontract shall relieve Engineer of any responsibilities under this Contract. 7 ARTICLE 17 EVALUATION OF ENGINEERING SERVICES City, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the Engineering Services performed or being performed hereunder and the premises on which it is being performed. If any review or evaluation is made on the premises of Engineer or a subcontractor, then Engineer shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of City or other representatives in the performance of their duties. ARTICLE 18 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by City before any final report is issued. City's comments on Engineer's preliminary reports shall be addressed in any final report. ARTICLE 19 VIOLATION OF CONTRACT TERMS/BREACH OF CONTRACT Violation of contract terms or breach of contract by Engineer shall be grounds for termination of this Contract, and any increased costs arising from Engineer's default, breach of contract, or violation of contract terms shall be paid by Engineer. ARTICLE 20 TERMINATION This Contract may be terminated as set forth below. (1) By mutual agreement and consent, in writing, of both parties. (2) By City, by notice in writing to Engineer, as a consequence of failure by Engineer to perform the Engineering Services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (4) By City, for reasons of its own and not subject to the mutual consent of Engineer, upon not less than thirty (30) days' written notice to Engineer. (5) By satisfactory completion of all Engineering Services and obligations described herein. Should City terminate this Contract as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to Engineer. In determining the value of the Engineering Services performed by Engineer prior to termination, City shall be the sole judge. Compensation for Engineering Services at termination will be based on a percentage of the Engineering 8 Services completed at that time. Should City terminate this Contract under Subsection (4) immediately above, then the amount charged during the thirty -day notice period shall not exceed the amount charged during the preceding thirty (30) days. If Engineer defaults in the performance of this Contract or if City terminates this Contract for fault on the part of Engineer, then City shall give consideration to the actual costs incurred by Engineer in performing the Engineering Services to the date of default, the amount of Engineering Services required which was satisfactorily completed to date of default, the value of the Engineering Services which are usable to City, the cost to City of employing another firm to complete the Engineering Services required and the time required to do so, and other factors which affect the value to City of the Engineering Services performed at the time of default. The termination of this Contract and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of City and Engineer under this Contract, except the obligations set forth herein in Article 21 entitled "Compliance with Laws." If the termination of this Contract is due to the failure of Engineer to fulfill his/her/its contractual obligations, then City may take over the project and prosecute the Engineering Services to completion. In such case, Engineer shall be liable to City for any additional and reasonable costs incurred by City. Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurements made by Engineer in support of the Engineering Services under this Contract. ARTICLE 21 COMPLIANCE WITH LAWS (1) Compliance. Engineer shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations, and the orders and decrees of any court, or administrative bodies or tribunals in any manner affecting the performance of this Contract, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. Engineer shall furnish City with satisfactory proof of his/her/its compliance. Engineer shall further obtain all permits and licenses required in the performance of the Engineering Services contracted for herein. (2) Taxes. Engineer will pay all taxes, if any, required by law arising by virtue of the Engineering 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. ARTICLE 22 INDEMNIFICATION Engineer shall save and hold harmless City and its officers and employees from all claims and liabilities due to activities of his/her/itself and his/her/its agents or employees, performed under this Contract, which are caused by or which result from the negligent error, omission, or negligent act of Engineer or of any person employed by Engineer or under Engineer's direction or control. 9 Engineer shall also save and hold City harmless from any and all expenses, including but not limited to reasonable attorneys fees which may be incurred by City in litigation or otherwise defending claims or liabilities which may be imposed on City as a result of such negligent activities by Engineer, its agents, or employees. ARTICLE 23 ENGINEER'S RESPONSIBILITIES Engineer shall be responsible for the accuracy of his/her/its Engineering Services and shall promptly make necessary revisions or corrections to its work product resulting from errors, omissions, or negligent acts, and same shall be done without compensation. City shall determine Engineer's responsibilities for all questions arising from design errors and/or omissions. Engineer shall not be relieved of responsibility for subsequent correction of any such errors or omissions in its work product, or for clarification of any ambiguities until after the construction phase of the project has been completed. ARTICLE 24 ENGINEER'S SEAL The responsible engineer shall sign, seal and date all appropriate engineering submissions to City in accordance with the Texas Engineering Practice Act and the rules of the State Board of Registration for Professional Engineers. ARTICLE 25 NON -COLLUSION, FINANCIAL INTEREST PROHIBITED (1) Non -collusion. Engineer warrants that he/she/it has not employed or retained any company or persons, other than a bona fide employee working solely for Engineer, to solicit or secure this Contract, and that he/she/it has not paid or agreed to pay any company or engineer any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City reserves and shall have the right to annul this Contract without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. (2) Financial Interest Prohibited. Engineer covenants and represents that Engineer, his/her/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. ARTICLE 26 INSURANCE (1) Insurance. Engineer, at Engineer's sole cost, shall purchase and maintain during the entire term while this Contract is in effect professional liability insurance coverage in the minimum amount of One Million Dollars per occurrence from a company authorized to do insurance business in Texas and 10 otherwise acceptable to City. Engineer shall also notify 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. (2) Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Engineer, Engineer shall require each subconsultant performing work under this Contract to maintain during the term of this Contract, at the subconsultant's own expense, the same stipulated minimum insurance required in Article 26, Section (1) above, including the required provisions and additional policy conditions as shown below in Article 26, Section (3). Engineer shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Engineer must retain the certificates of insurance for the duration of this Contract, 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. (3) Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: (a) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or reduction in limits by endorsement 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 (b) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self -Insured Retentions of whatever nature. (4) Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Engineer shall be borne solely by Engineer, with certificates of insurance evidencing such minimum coverage in force to be filed with City. Such Certificates of Insurance are evidenced as Exhibit E herein entitled "Certificates of Insurance." ARTICLE 27 COPYRIGHTS City shall have the royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any reports developed by Engineer for governmental purposes. 11 ARTICLE 28 SUCCESSORS AND ASSIGNS This Contract shall be binding upon and inure to the benefit of the parties hereto, their successors, lawful assigns, and legal representatives. Engineer may not assign, sublet or transfer any interest in this Contract, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of City. ARTICLE 29 SEVERABILITY In the event any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. ARTICLE 30 PRIOR AGREEMENTS SUPERSEDED This Contract constitutes the sole agreement of the parties hereto, and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. This Contract may only be amended or supplemented by mutual agreement of the parties hereto in writing. ARTICLE 31 ENGINEER'S ACCOUNTING RECORDS Records pertaining to the project, and records of accounts between City and Engineer, shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives at mutually convenient times. The City reserves the right to review all records it deems relevant which are related to this Contract. ARTICLE 32 NOTICES All notices to either party by the other required under this Contract shall be personally delivered or mailed to such party at the following respective addresses: City: City of Round Rock Attention: City Manager 221 East Main Street Round Rock, TX 78664 12 and to: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664 Engineer: Jerome (Jay) W. Scanlon, P.E. Project Manager Freese and Nichols, Inc. 10814 Jollyville Road, Building 4, Suite 100 Austin, TX 78759 ARTICLE 33 GENERAL PROVISIONS (1) Time is of the Essence. Engineer understands and agrees that time is of the essence and that any failure of Engineer to complete the Engineering Services for each phase of this Contract within the agreed Work Schedule may constitute a material breach of this Contract. Engineer shall be fully responsible for his/her/its delays or for failures to use his/her/its reasonable efforts in accordance with the terms of this Contract and the Engineer's standard of performance as defined herein. Where damage is caused to City due to Engineer's negligent failure to perform City may accordingly withhold, to the extent of such damage, Engineer's payments hereunder without waiver of any of City's additional legal rights or remedies. (2) Force Majeure. Neither City nor Engineer shall be deemed in violation of this Contract if prevented from performing any of their obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. (3) Enforcement and Venue. This Contract shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Contract shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. (4) Standard of Performance. The standard of care for all professional engineering, consulting and related services performed or furnished by Engineer and its employees under this Contract will be the care and skill ordinarily used by members of Engineer's profession practicing under the same or similar circumstances at the same time and in the same locality. Excepting Articles 25 and 34 herein, Engineer makes no warranties, express or implied, under this Contract or otherwise, in connection with the Engineering Services. 13 (5) Opinion of Probable Cost. Any opinions of probable project cost or probable construction cost provided by Engineer are made on the basis of information available to Engineer and on the basis of Engineer's experience and qualifications and represents its judgment as an experienced and qualified professional engineer. However, since Engineer has no control over the cost of labor, materials, equipment or services furnished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market conditions, Engineer does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost Engineer prepares. (6) Opinions and Determinations. Where the terms of this Contract provide for action to be based upon opinion, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE 34 SIGNATORY WARRANTY The undersigned signatory for Engineer hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Contract and that he/she has full and complete authority to enter into this Contract on behalf of the firm. The above -stated representations and warranties are made for the purpose of inducing City to enter into this Contract. IN WITNESS WHEREOF, the City of Round Rock has caused this Contract to be signed in its corporate name by its duly authorized City Manager or Mayor and Engineer, signing by and through its duly authorized representative(s), thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereof. CITY OF ROUND ROCK, TEXAS By: es R. Nuse, P.E., City Manager d.0ttryLp..J Christme Martinez, City Secretary FREESE AND NICHOLS, INC. By: Suture of Prin P ' ted Name: 14 APPR•,J D AS TO •RM: Z. Stepha L. Sheets, City Attorney LIST OF EXHIBITS ATTACHED (1) Exhibit A City Services (2) Exhibit B Engineering Services (3) Exhibit C Work Schedule (4) Exhibit D Fee Schedule (5) Exhibit E Certificates of Insurance Exhibit A City Services CITY shall perform the following in a timely manner so as not to delay the services of FNI: A. Designate in writing a person to act as CITY's representative with respect to the services to be rendered under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive information, interpret and define CITY's policies and decisions with respect to FNI's services for the Project. B. Provide all criteria and full information as to CITY's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which CITY will require to be included in the drawings and specifications. C. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. D. Arrange for access to and make all provisions for FNI to enter upon public and private property as required for FNI to perform services under this AGREEMENT. E. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by FNI, obtain advice of an attorney, insurance counselor and other consultants as CITY deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of FNI. F. Provide Construction Inspection and/or Resident Representation during construction. G. Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as CITY may require or FNI may reasonably request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as CITY may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such inspection services as CITY may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishing and performing the work. H. Attend the pre-bid conference, bid opening, preconstruction conferences, construction progress and other job related meetings and substantial completion inspections and final payment inspections. I. Give prompt written notice to FNI whenever CITY observes or otherwise becomes aware of any development that affects the scope or timing of FNI's services, or any defect or nonconformance of the work of any Contractor. J. Coordinate the work of testing laboratories and inspection bureaus required for the testing or inspection of materials, witnessed tests, factory testing, etc. for quality control of the Project. K. FNI will provide reproducible copies of the construction documents to the CITY for reproduction and distribution. Exhibit B Engineering Services FNI shall render the following professional services in connection with the development of the Project: 1. Data Collection and Review: Collect and review available information and data and make recommendations for additional data collection. Data we expect to obtain includes: a. Record drawings of pond dam construction (Upper Brushy Creek WCID Dam #19), b. Record Drawings for golf course irrigation and control wiring systems, c. Updated City databases including two -foot contour topographic mapping, aerial photography, and other GIS datasets such as proposed land use data, d. Property Ownership plat maps, e. Effective hydrologic and hydraulic models, if any exist. 2. Site Visits: Conduct site visits to obtain information on existing conditions of the dam, golf course, and to verify survey data. 3. Survey: Collect survey information on the existing golf cart path and bridge, existing pond water surface elevation, existing dam spillway and low flow outlet, and other spot elevations as needed to develop the project. 4. Hydrologic and Hydraulic Modeling: Several storm events will be modeled to determine the return frequency of the design storm that will meet the design requirements for the golf course (raise the cart path three to four feet). It is anticipated that the 2 -year, 5 -year, and 10 -year events will be modeled. a. Use proposed land use data and existing two -foot contour data to develop hydrologic parameters and incoming discharge for various storm events using SITES, an NRCS water resource analysis program. b. Use survey data, existing contours, and record data regarding construction of the dam to develop peak water surfaces elevations at the pond for various storm events using SITES. (Note: The 5 -year event will be modeled first and those results, along with consultation with the City, will be used to determine the final modeling protocol/needs. For example, the inundation depth may be used to decide if the return frequency should be increased or decreased or if additional events need to be evaluated to determine the recommended design storm). c. Use the results of the models to recommend a design storm (return frequency) to the CITY. d. Use CULVERTMASTER or HEC -RAS to size the bridge opening/culvert to pass the design storm. 5. Preliminary Design Phase: With City concurrence on the recommended design storm, FNI will: a. Prepare preliminary design documents consisting of preliminary drawings, an outline of the specifications, and a preliminary opinion of probable construction cost. b. Based on the information contained in the preliminary design documents, submit a preliminary opinion of probable Project Costs. c. Furnish three (3) copies of the above preliminary design documents to the CITY for review and comment. d. Prepare information package for submittal to the Upper Brushy Creek Water Control and Improvement District for "Application for Construction with Cut and Fill Activity". Submit to the CITY for review. Upon approval of the CITY, FNI will submit the application to the WCID. 6. Design Phase: a. Prepare drawings, specifications, Construction Contract Documents, designs, and layouts of improvements to be constructed, incorporating CITY comments. b. Submit drawings, specifications, and Construction Contract Documents to the applicable federal and state agency(s) for approval, where required. (Note: Based on the initial site visit and field discussions of the proposed construction options FNI does not anticipate that a USACE 404 permit (individual or nationwide) will be required for this project. If, during the development of the construction documents, it appears that a 404 permit will be required FNI will notify the City immediately in writing). c. Prepare a revised opinion of probable construction cost. d. Prepare bidder's proposal forms (project quantities) of the improvements to be constructed. e. Furnish CITY three (3) sets of copies of drawings, specifications, and bid proposals marked "Preliminary" for approval by CITY. Upon final approval by CITY, FNI will provide CITY three (3) sets of copies of "Final" drawings. 7. Bid Phase: Upon completion of the design services and approval of "Final" drawings and specifications by the City, FNI will: a. Provide the CITY reproducible set of the final documents. b. Provide Assist CITY in securing bids. Provide a copy of the notice to bidders for CITY to use in notifying construction news publications and publishing appropriate legal notice. The cost for publications shall be paid by CITY. c. Assist City by responding to questions and interpreting bid documents. Prepare and issue addenda to the bid documents to plan holders if necessary. d. Assist the CITY in conducting a pre-bid conference for the construction projects and coordinate responses with CITY. Response to the pre-bid conference will be in the form of addenda issued after the conference. Attend the tour of the project site after the pre-bid conference. e. At CITY request, FNI will assist CITY in the opening, tabulating, and analyzing the bids received. Review the qualification information provided by the apparent low bidder to determine if, based on the information available, they appear to be qualified to construct the project. Recommend award of contracts or other actions as appropriate to be taken by CITY. 8. Construction Phase: Upon completion of the bid phase services, FNI will proceed with the performance of construction phase services as described below. FNI will endeavor to protect CITY in providing these services however, it is understood that FNI does not guarantee the Contractor's performance, nor is FNI responsible for supervision of the Contractor's operation and employees. FNI shall not be responsible for the means, methods, techniques, sequences or procedures of construction selected by the Contractor, or any safety precautions and programs relating in any way to the condition of the premises, the work of the Contractor or any Subcontractor. FNI shall not be responsible for the acts or omissions of any person (except its own employees or agents) at the Project site or otherwise performing any of the work of the Project. If general conditions other than FNI standards are used, the CITY agrees to include provisions in the construction contract documents that will require the construction contractor to include FNI and their subconsultants on this project to be listed as an additional insured on contractor's insurance policies. a. Assist CITY in conducting pre -construction conference with the Contractor and review construction schedules prepared by the Contractor. b. Make four (4) visits appropriate to the stage of construction to the site (as distinguished from the continuous services of a Resident Project Representative or Construction Inspector) to observe the progress and the quality of work and to attempt to determine in general if the work is proceeding in accordance with the Construction Contract Documents. In this effort FNI will endeavor to protect the CITY against defects and deficiencies in the work of Contractors and will report any observed deficiencies to CITY. Visits to the site in excess of the specified number are an additional service. c. Review Payment Requests and supporting documentation submitted by Contractor, determine the amount that FNI recommends Contractor be paid on monthly and final estimates, pursuant to the General Conditions of the Construction Contract. d. Notify the contractor of non -conforming work observed on site visits. Review quality related documents provided by the contractor such as test reports or other documentation required by the Construction contract documents. e. Interpret the drawings and specifications for CITY and Contractor(s). f. Prepare change order documentation for approved changes for execution by the CITY. Documentation of field orders, where cost to CITY is not impacted, will also be prepared. g. Prepare documentation for contract modifications required to implement modifications in the design of the project. Receive and evaluate notices of contractor claims and make recommendations to the CITY on the merit and value of the claim on the basis of information submitted by the contractor or available in project documentation. Endeavor to negotiate a settlement value with the Contractor on behalf of the CITY if appropriate. h. Conduct, in company with CITY's representative, a final review of the Project for conformance with the design concept of the Project and general compliance with the Construction Contract Documents. Prepare a list of deficiencies to be corrected by the contractor before recommendation of final payment. Assist the City in obtaining legal releases, permits, warranties, spare parts, and keys from the contractor. Review and comment on the certificate of completion and the recommendation for final payment to the Contractor(s). i. Revise the construction drawings in accordance with the information furnished by construction Contractor(s) reflecting changes in the Project made during construction. Two (2) sets of prints of "Record Drawings" shall be provided by FNI to CITY. j. Investigations, analyses, studies or design for substitutions of equipment or materials, corrections of defective or deficient work of the contractor or other deviations from the construction contract documents requested by the contractor and approved by the CITY are an additional service. k. Investigations, analyses, and studies requested by the Contractor(s) and approved by CITY, for substitutions of equipment and/or materials or deviations from the drawings and specifications is an additional service. 1. Visiting the site to review completed work in excess of two trips are an additional service. Exhibit C Work Schedule See attached t1) • . • . • - • • • ........ • • • .............. ....... • • • . • • . - • • • ..... .• • • • • • . LI - 0 - 0 :10 ;10 ' i',D ; US0 40 : :40 0 ; 0 0 . • 12 , .5._ :) O ;0 ',ID -03 . ; r- • (.3 (34 :a0 — ..- ,..... — . ..., 0 0 HC C {.• ,.. ,... • .... . i MA ] .r. . IL .117: -0 ., la. ..1., ii. ,.- .. .E - i . , . i I.... : ,. : • La :10 : . a :10 :to co : a a .,C4 . le . IQ iCO .2 ;a) !.ra ....... 1.- ,.... .... . c = : a c i -c ! c : • 0 ! !X • 0 t- !I- !M ! : 2 • ! .• ! : ; • : • : , 1 g. • ! g. ! g. ' ! g. ! ! •." • , • • >, to .15 '.15 0 i 0 : .15 t , si .15 11 :13 .. -0 .13 1.• ' ° i IC. i 0 :55 : , 0 : le '03 . - . . : . : - • 1 . . i 0 g External Tasks Exhibit D Fee Schedule Cost Based On Hourly Rates With A Maximum Fee Limit Option — See attached N 0 0 0 N�p 0 SOY 4 N N 10 0) 0 m 0v. 0 N 0 N N CO lei CO O v. N 0) O O H O • o• NN c � 'F?, 0 0 O O O S 0 00 0 0 o 0 o 0 0 o p 0 0 0 0 �? 1? 1? 1? 0 0 0 ,c10 0 0 0 0a F n « w 1 C V L 0 0 0 u o O 00 O 0 10 N N N O 0 0 1D OO o O O o O O o O O O Oo O O 17o O CO 0 N N O 0 0 O O OO O m or co o O O m 0 1 ffr N N N — y 0 T 0)) 0 W 0) 0 0 o 0 N O 0 N+! 1` N N 0 0 0 0 e W 0 S 00 0 0 0 0 0 0 0 0 0 0 0 o 0 0 0 0 000q 0 0 o q O 0 0 x 0 g0. 0 0 0 0VI N d N N N 0 0 0 N 0 V N N 0 0 0 0 i0 FNt DIRECT LABOR AND EXPENSES: O O O O O O 8 8 O O o 8 O N 0 0 CO. r 1` • 0 N Q N 0 04 01 N N 0 N N O O m 0 01 00 0 0 0 0 0 0 0 0 0 o O N O 0 N N 10 N N N N 0 1`1N O N O O 00 1N10 S 10 N 0 O 1 NN ,NNNNN N W N • 0 0 N N 0) N N N N V N 0 OO O o O o 0 0 0 O O o o O O O O 0 0 0 0 0 0 1D A O 0 0 0 0 0000 0 o M1 t- 0 0 0 0 0 0 0000 0 0 v r E 0 0 Data Collection Environmental Assessment/Permitting Modeling and Schematic Design N 0) V N 10 Bid Phase Serivices Construction Phase Services O 0 r CO m LABOR SUBTOTAL: ATTACHMENT CO COMPENSATION The total fee for Basic Services shall be computed on the basis of the Schedule of Charges, but shall not exceed $35,000.00. If FNI sees the Scop changing so that Additional Services are needed, FNI wig notify OWNER for OWNER's approval before proceeding. Additional Services shall be co on the Schedule of Charges. Selman. of Charges: Position Min Naz PRINICIPAL 145.64 291.19 SENIOR CONSULTANI 192.37 252.49 GROUP MANAGER 160.43 197.38 ENGINEER VIII 175.18 209.78 ENGINEER VII 140.49 184.40 ENGINEER VI 96.10 170.04 ENGINEER V 106.08 134.07 ENGINEER IV 87.45 118.16 ENGINEER III 81.28 98.43 ENGINEER!! 75.64 88.47 ENGINEER 1 72.60 85.28 CONSTRUCTION CONTRACT ADMIN III 134.11 160.02 CONSTRUCTION CONTRACT ADMIN II 62.00 114.51 CONSTRUCTION CONTRACT ADMIN I 56.73 74.87 DOCUMENT CONTROL CLERK 45.88 57.35 SR DESIGNER 102.08 127.60 DESIGNER I1 98.39 113.79 CARD DESIGNER 98.08 116.07 TECHNICIAN IV 71.24 100.22 TECHNICIAN 111 58.37 83.39 TECHNICIAN 11 48.29 63.37 TECHNICIAN 1 39.68 56.57 ENVIRONMENTAL SCIENTIST VII 109.72 144.00 ENVIRONMENTAL SCIENTIST VI 104.84 115.26 ENVIRONMENTAL SCIENTIST V 79.42 9928 ENVIRONMENTAL SCIENTIST 111 68.23 97.29 ENVIRONMENTAL SCIENTIST 11 50.96 63.70 ENVIRONMENTAL SCIENTIST I 54.72 58.52 WORD PROCESSING/SECRETARIAL 50.22 65.33 OPERATIONS ANALYST 64.39 105,49 CONTRACT ADMINISTRATOR 60.46 75.58 INFORMATION SERVICES ADMINISTRATO 39.61 51.98 INFORMATION SERVICES CLERK 26.38 41.66 CO-OP 35.65 50.45 The ranges and individual salaries Ma be adjusted annually. RATES FOR INHOUSE SERVICES Compute' and CAD PC CAU Stations 510.00 per hour Print Shop color COpleS and Nnn5ng Black and White Copies and Printing Binding Testing Apparatus Density Meter Gas Detection Caicomp Plotter Bond 52.50 per plot Other 55.00 per plot Color 55.75 per plot 5350.00 per month $10.00 per test 50.50 per single side copy 51.00 per double side copy 50.10 per single side copy 50.20 per doubie side copy 55.75 per book OTHER DIRECT EXPENSES Other direct expenses are reimbursed at actual cost times a multiplier of 1.15. They include outside printing and reproduction expense, communica travel, transportation and subsistence away from Fort Worth, end other miscellaneous expenses directly related to the work, including costs of labor tests, and other work required to be done by independent person other than staff members. FNI 9gg:07-05-05 OWNER ref:cdp A Exhibit E Certificates of Insurance See attached CERTIFICATE OF LIABILITY INSURANCE Date: 11/03/2005 PROFESSIONAL SERVICES PRODUCER COMPANIES AFFORDING COVERAGE Wm. Rigg Co. 777 Main St, C-50 A Continental Casualty Company Fort Worth, TX 76102 INSURED Freese & Nichols, Inc. 4055 International Plaza #200 Fort Worth TX 76109-4895 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 LIMITS A PROFESSIONAL LIABILITY AEA00-821-44-22 12/30/2004 12/30/2005 $5,000,000 Per Claim $10,000,000 Per Agg. DESCRIPTION OF SPECIAL ITEMSIEXCEPTIONS $400,000 Deductible Per Claim Including Claims Expenses 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. CERTIFICATE HOLDER: City of Round Rock 221 E. Main Street Round Rock, Texas 78664 attn: Christine Martinez, City Secretary Rev'd 2/10/03 - Professional Liability Certificate.doc S1GN1 TURF OF AUTHORIZED REPRESENTATIVE Typed Name: William W, Meadows Title: Executive Vice President mngmeennmeouncamnapswumu-orestt;reekuo►tteourse_9.mxa