CM-06-05-120Agreement for Electrical Engineering Consulting Services
for Design of Documents/Specifications for City Hall
Backup Generator and IT Upgrades with
Hendrix Consulting Engineers (HCE)
AGREEMENT made as of th
(-2(1) day of the month of
BETWEEN the City of Round Rock, Texas identified herein as "City":
City of Round Rock, Texas
221 East Main Street
Round Rock, Williamson and Travis Counties, Texas 78664
and Consultant, identified herein as "Consultant" or "HCE":
Hendrix Consulting Engineers (HCE)
115 East Main Street
Round Rock, Texas 78664
For the following Project:
in the year Two Thousand Six.
Consulting services including providing professional engineering services for design of a backup generator and certain IT
upgrades for City Hall, including but not limited to electrical drawings and specifications necessary to complete a set of Contract
Documents. All such services shall be on site of said project located in Round Rock, Texas.
City and Consultant agree as follows:
ARTICLE 1.1 INITIAL INFORMATION
1.1.1 This Agreement is based on the following information and assumptions.
1.1.2 PROJECT PARAMETERS
1.1.2.1 The objective or use is:
Objectives include, but are not limited to obtaining consulting services including professional engineering services from HCE for
the project specified for the City of Round Rock, Texas.
1.1.2.2 The physical parameters are:
Location to be on site of the City Hall located in Round Rock, Williamson County, Texas.
1.1.2.3 The Scope of Services is as follows:
(a) Electrical drawings and specifications necessary to complete a set of Contract Documents for the
specified project, including incorporating final review comments from local authorities;
(b) Design of 200 kw generator and 30 kva ups for back of server room at City Hall;
(c) Generator to be located on adjacent parking garage;
(d) Review submittals, process addenda, and respond to and resolve questions during Construction Phase;
(e) Make all site visits during Construction Phase as necessary or as requested by City.
Contract Documents shall not be considered complete until all drawings have been revised to reflect all comments
received from local plan review personnel.
1.1.2.4 The legal parameters are:
As delineated herein.
00099213/jkg
1.1.2.5 The financial parameters are as follows.
Consultant's compensation for services under this Agreement shall not exceed $11,500.00 for delineated services,
and shall not exceed $1,000.00 for Reimbursable Expenses, totaling the not -to -exceed sum of $12,500.00, which
sum shall include all deliverables and shall include reimbursable expenses at actual cost and as actually incurred.
Payment to Consultant for approved reimbursable expenses shall not exceed the stated sum of $1,000.00 without
prior express written approval from City.
The not -to -exceed sum for services shall be payable as follows:
Construction Phase 80% $ 9,200.00
Submittal Review/Construction Administration 20% $ 2,300.00
Total Fee: 100% $11,500.00
1.1.2.6 The time parameters are:
Twelve (12) consecutive months from date of execution of this Agreement, with ability to renew and extend only
by express written agreement of the parties.
1.1.2.7 The proposed procurement or delivery method for the Project is:
Professional services and consulting services will be engaged by negotiated contract.
1.1.2.8 Other time parameters are:
Unless sooner terminated in accordance with the applicable provisions of this Agreement, or extended by mutual
agreement approved by City, the term of this Agreement shall be from the date hereof until final completion of
the Project and all electrical engineering services in connection therewith, and resolution of any outstanding
Project -related claims or disputes.
1.1.2.9 As to the Project Performance Schedule, time of completion shall be twelve (12) consecutive months from date of
execution of this Agreement. Consultant understands and acknowledges that the Project Performance Schedule is
of critical importance, and agrees to undertake all necessary efforts to expedite the performance of services
required herein. In this regard, Consultant shall proceed with sufficient qualified personnel and consultants
necessary to fully and timely accomplish all services required under this Agreement in a manner that is
consistent with professional skill and care and the orderly progress of the Project, excepting delays beyond
Consultant's control.
1.1.3 PROJECT TEAM
1.1.3.1 City's Designated Representative is:
Larry Madsen
Construction Coordination Manager
2008 Enterprise
Round Rock, Texas 78664
1.1.3.2 The persons or entities, in addition to City's Designated Representative, who are required to review Consultant's
submittals to City are:
City Manager James R. Nuse
221 East Main Street
Round Rock, Texas 78664
1.1.3.3 City's other consultants and contractors are:
Not selected at this time.
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1.1.3.4 Consultant's Designated Representative is:
Buck Hendrix
HCE
115 East Main Street
Round Rock, Texas 78664
1.1.3.5 The consultants retained at the Consultant's expense are:
Not selected at this time.
1.1.4 When the services under this Agreement include contract administration services, it is intended that the General
Conditions of the Contract for Construction shall be the standard AIA Document as modified between City and
Contractor. Consultant's responsibility to provide services for the construction phase under this Agreement
commences with the award of the contract for construction and terminates at the issuance to City of the final
certificate for payment. Duties, responsibilities and limitations of authority of Consultant shall not be restricted,
modified or extended without written agreement of City and Consultant with consent of Contractor, which
consent shall not be unreasonably withheld.
1.1.5 The information contained in this Article 1.1 may be reasonably relied upon by City and Consultant in
determining Consultant's compensation. However, it is expressly agreed and understood by all parties that the
total sum of $11,500.00, plus reimbursable expenses in the total sum of $1,000.00, shall represent the absolute
limit of City's liability to Consultant, unless same shall be changed by Supplemental Agreement hereto. Any
such Supplemental Agreement to this Agreement must be duly authorized by City Council or City Manager
action.
ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES
1.2.1 City and Consultant shall cooperate with one another to fulfill their respective obligations under this Agreement.
Both parties shall endeavor to maintain good working relationships among all members of the Project team.
1.2.2 CITY
1.2.2.1 Unless otherwise provided under this Agreement, City shall provide full information in a timely manner regarding
requirements for and limitations on the Project. City shall furnish to Consultant, within fifteen (15) days after
receipt of a written request, information necessary and relevant for Consultant to evaluate, give notice of or
enforce lien rights.
1.2.2.2 City shall establish and periodically update the budget for the Project, including that portion allocated for the Cost
of the Work, City's other costs, and reasonable contingencies related to all costs.
1.2.2.3 City's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the City's behalf with
respect to the Project. City or City's Designated Representative shall render decisions in a timely manner
pertaining to documents submitted by Consultant in order to avoid unreasonable delay in the orderly and
sequential progress of the Consultant's services.
1.2.2.4 City shall furnish the services of consultants other than those designated in Paragraph 1.1.3 or authorize
Consultant to furnish them as a Change in Services when such services are requested by Consultant and are
reasonably required by the scope of the Project and are approved by City
1.2.2.5 Unless otherwise provided in this Agreement, and if requested in writing, City shall furnish or pay for tests,
inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical
tests, tests for air and water pollution, and tests for hazardous materials.
1.2.2.6 City shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably
necessary at any time for the Project to meet City's needs and interests.
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1.2.2.7 Each party shall provide prompt written notice to the other if either becomes aware of any fault or defect in the
Project, including any errors, omissions or inconsistencies in Consultant's services.
1.2.2.8 City shall furnish, at its sole discretion, a certified survey of the selected site giving, as required, grades and lines
of streets, alleys, pavements and adjoining property; rights-of-way, restrictions, easements, encroachments,
zoning, deed restrictions, boundaries, contours and other data pertaining to existing buildings or adjacent to the
site, other improvements and trees; and full information as to available service and utility lines, both public and
private, and test borings, pits, reports and soil bearing values and other necessary operations for determining
subsoil conditions.
1.2.2.9 City will furnish building permits without charge. Electrical, plumbing and other trade permits will be the
responsibility of the construction contractor. Any charges which may be assessed for tap fees will be paid by City
and are not to be included by Consultant in the specifications for the Project.
1.2.2.10 City will provide Consultant with miscellaneous items such as the Project Facility Program, two (2) copies of the
City of Round Rock General and Supplementary Conditions for Building Construction, Instructions to Bidders,
Proposal Forms, Wage Rates, Contract and Bond Forms, Bid Advertisement Form, and such other information and
materials as may be necessary and practicable for the orderly and expeditious progress of the work and the
awarding of the construction contract. To the extent practicable, these documents shall be utilized in the
preparation of the construction documents.
1.2.2.11 Because Consultant does not control the costs of labor, materials, equipment, services furnished by others,
methods of determining prices, competitive bidding or market conditions, any opinions rendered as to costs shall
be made on the basis of its experience and shall represent its judgment as an experienced and qualified
professional. However, Consultant does not guarantee that proposals, bids or actual costs will not vary from its
opinions of costs. If City wishes greater assurance as to the amount of any cost, City shall have the right to
employ an independent cost estimator.
1.2.3 CONSULTANT
1.2.3.1 The services performed by Consultant, Consultant's employees and Consultant's subconsultants shall be as
enumerated in Paragraphs 1.1.2.3 and as enumerated elsewhere herein, in attached and accompanying documents,
in supplemental documents, and in related documents.
1.2.3.2 Consultant's services shall be performed as expeditiously as is consistent with professional skill and care and the
orderly progress of the Project. Consultant shall submit for City's approval a schedule for the performance of
Consultant's services which initially shall be consistent with the time periods established in Paragraph 1.1.2.6 and
which may be adjusted, if necessary and approved by City, as the Project proceeds. This schedule shall include
allowances for periods of time required for City's review, for the performance of City's consultants, and for
approval of submissions by authorities having jurisdiction over the Project. Time limits established by this
schedule approved by City shall not, except for reasonable cause, be exceeded by Consultant or City.
1.2.3.3 Consultant's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on Consultant's
behalf with respect to the Project.
1.2.3.4 Consultant shall maintain the confidentiality of information specifically designated as confidential by City, unless
withholding such information would violate the law, create the risk of significant harm to the public or prevent
Consultant from establishing a claim or defense in an adjudicatory proceeding. Consultant shall require of
Consultant's subconsultants similar agreements to maintain the confidentiality of information specifically
designated as confidential by City.
1.2.3.5 Except with City's knowledge and consent, Consultant shall not engage in any activity, or accept any employment,
interest or contribution that would reasonably appear to compromise Consultant's professional judgment with
respect to this Project.
1.2.3.6 Consultant shall review laws, codes, and regulations applicable to Consultant's services. Consultant shall respond
in the design of the Project to requirements imposed by governmental authorities having jurisdiction over the
Project.
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1.2.3.7 Consultant shall be entitled to reasonably rely on the accuracy and completeness of services and information
furnished by City. Each party shall provide prompt written notice to the other if either becomes aware of any
errors, omissions or inconsistencies in such services or information.
1.2.4 CONSULTANT'S SERVICES
1.2.4.1 Basic Services.
(1) Consultant's Basic Services consist generally of the services described herein and in exhibits, and include such
other services as may be necessary to assist City in the design and construction of the Project, within the limits
City has budgeted or will budget therefor, and in compliance with the Project Facility Program, which is hereby
made a part of this Agreement for all purposes. Consultant agrees that upon execution of this Agreement, it will
submit to City within ten (10) days a list of all additional consultants it intends to utilize, not previously identified,
delineating their respective tasks. All of Consultant's subconsultants shall be subject to the approval of City
through its City Manager, and City reserves the right to reject any consultant. Consultant shall perform all work
hereunder in a manner satisfactory and acceptable to City, represented by its City Manager or his/her designee,
hereinafter referred to as "Director." A Performance Schedule shall be agreed to by Consultant and Director, and
Consultant agrees to use its best efforts to complete all services hereunder in accordance with such Performance
Schedule.
1.2.4.2 Additional Services. Consultant shall perform Additional Services, as requested by City, after a not -to -exceed
amount has been mutually agreed upon in writing by the Director and Consultant. Where City Council
authorization is required, Consultant shall not proceed until the appropriate Resolution for such Additional
Services has been adopted. The following services are not covered under Paragraphs 1.2.4.1, which defines and
outlines Consultant's Basic Services. If any of these Additional Services are authorized in writing by the Director
in advance of their performance, they shall be paid for in the manner agreed to at the time of authorization.
(a) Preparing Change Orders and supporting data and/or revising previously approved plans when the
changes in approved Plans and Specifications are required by City, unforeseen circumstances due to
hidden or unknown conditions, or codes/ordinances or other legal requirements which may come into
effect during the course of the Project. If changes are required to be made because of error, oversight,
clarification, discrepancy, or budget overruns in the work of Consultant, City shall not be liable to
compensate Consultant for Additional Services or expenses in such connection.
(b) Providing other extraordinary professional services over and above the Contract Documents
requirements, where required and requested by City, including extraordinary professional services which
might result if City decides to "fast track" the Project.
1.2.4.3.1 Compensation for additional services will be billed by Consultant on an hourly basis at $115.00 per hour for
principals' time, at $85.00 per hour for the project manager's time, at $90.00 per hour for engineers' time, at
$80.00 per hour for senior designers' time, at $65.00 per hour for computer-aided designers' time, at $65.00 per
hour for Designer I time, and at $45.00 per hour for administrative/clerical time..
ARTICLE 1.3 TERMS AND CONDITIONS
1.3.1 COST OF THE WORK
1.3.1.1 The Cost of the Work shall be the total cost or, to the extent the Project is not completed, the estimated cost to City
of all elements of the Project designed or specified by Consultant.
1.3.1.2 The Cost of the Work shall include the cost at reasonable current market rates of labor and materials furnished by
City and equipment designed, specified, selected or specially provided for by Consultant, including the costs of
management or supervision of construction or installation provided by a separate construction manager or
contractor, plus for Contractor's overhead and profit.
1.3.1.3 The Cost of the Work does not include the compensation of Consultant and Consultant's subconsultants, the costs
of the land, rights-of-way and financing or other costs that are the responsibility of City.
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1.3.2 USE OF DOCUMENTS
1.3.2.1 All documents, including but not limited to drawings, specifications and data or programs stored electronically,
prepared by Consultant and its subconsultants are related exclusively to the services described in this Agreement
and are intended to be used with respect to this Project. However, it is expressly understood and agreed by and
between the parties hereto that all of Consultant's designs under this Agreement (including but not limited to
tracings, drawings, estimates, specifications, investigations, studies and other documents, completed or partially
completed), shall be the property of City to be thereafter used in any lawful manner as City elects. Any such
subsequent use made of documents by City shall be at City's sole risk and without liability to Consultant, and City
shall indemnify, defend and hold harmless Consultant from all claims, damages, losses and expenses, including
but not limited to attorneys fees, resulting therefrom.
13y execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement,
Consultant hereby conveys, transfers and assigns to City all rights under the Federal Copyright Act of 1976 (or
any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights
acknowledged by law in the Project designs and work product developed under this Agreement. Copies may be
retained by Consultant. Consultant shall be liable to City for any loss or damage to any such documents while
they are in the possession of or while being worked upon by Consultant or anyone connected with Consultant,
including agents, employees, consultants or subcontractors. All documents so lost or damaged shall be replaced or
restored by Consultant without cost to City.
1.3.2.2 Upon execution of this Agreement, Consultant grants to City permission to reproduce Consultant's work and
documents for purposes of constructing, using and maintaining the Project, provided that City shall comply with
its obligations, including prompt payment of all sums when due, under this Agreement. Consultant shall obtain
similar permission from Consultant's subconsultants consistent with this Agreement. If and upon the date
Consultant is adjudged in default of this Agreement, City is permitted to authorize other similarly credentialed
design professionals to reproduce and, where permitted by law, to make changes, corrections or additions to the
work and documents for the purposes of completing, using and maintaining the Project.
1.3.2.3 City shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to another
party without the prior written agreement of Consultant. However, City shall be permitted to authorize the
contractor, subcontractors, sub -subcontractors and material or equipment suppliers to reproduce applicable
portions of the Instruments of Service appropriate to and for use in their execution of the Work. Submission or
distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in
connection with the Project is permitted. Any unauthorized use of the Instruments of Service shall be at City's
sole risk and without liability to Consultant and its consultants.
1.3.2.4 Prior to Consultant providing to City any Instruments of Service in electronic form or City providing to Consultant
any electronic data for incorporation into the Instruments of Service, City and Consultant shall by separate written
agreement set forth the specific conditions governing the format of such Instruments of Service or electronic data,
including any special limitations not otherwise provided in this Agreement. Any electronic files are provided by
Consultant for the convenience of City, and use of them is at City's sole risk. In the case of any defects in
electronic files or any discrepancies between them and any hardcopy of the same documents prepared by
Consultant, the hardcopy shall prevail. Only printed copies of documents conveyed by Consultant shall be relied
upon. Because data stored in electronic media format can deteriorate or be modified without authorization of the
data's creator, City shall have sixty (60) days to perform acceptance tests, after which time City is deemed to have
accepted the data transferred.
1.3.2.5 All plans and drawings will be prepared and submitted by Consultant to City for approval on a minimum 24 -inch
by 36 -inch or maximum 32 -inch by 42 -inch drafting sheet, with all lettering processed in ink or pencil and clearly
legible when the sheets are reproduced and reduced to half size.
1.3.2.6 Consultant shall have no liability for changes made to the drawings by other engineers subsequent to the
completion of the Project. Any such change shall be sealed by the engineer making that change and shall be
appropriately marked to reflect what was changed or modified.
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1.3.3 CHANGE IN SERVICES
1.3.3.1 Change in Services of Consultant, including services required of Consultant's subconsultants, may be
accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in
writing. It is expressly agreed and understood by all parties that the total sum of $11,500.00, plus reimbursable
expenses in the total sum of $1,000.00 shall represent the absolute limit of Owner's liability to Consultant, unless
same shall be changed by Supplemental Agreement hereto. Any such Supplemental Agreement to this Agreement
must be duly authorized by City Council resolution or appropriate action of the City Manager.
1.3.4 MEDIATION
1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to
mediation. If such matter relates to or is the subject of a lien arising out of Consultant's services, Consultant may
proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of
the matter by mediation.
1.3.4.2 City and Consultant shall endeavor to resolve claims, disputes and other matters in question between them by
mediation. Request for mediation shall be filed in writing with the other party to this Agreement, and mediation
shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period
of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the parties or court
order.
1.3.4.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place
where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation
shall be enforceable as settlement agreements in any court having jurisdiction thereof.
1.3.5 ARBITRATION
1.3.5.1 City and Consultant hereby expressly agree that no claims or disputes between City and Consultant arising out of
or relating to the contract documents or a breach thereof shall be decided by any arbitration proceeding, including,
without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-14) or any applicable
state arbitration statute, except that in the event that City is subject to an arbitration proceeding related to the
Project, Consultant consents to be joined in the arbitration proceeding if Consultant's presence is required or
requested by City for complete relief to be accorded in the arbitration proceeding.
1.3.6 CLAIMS FOR CONSEQUENTIAL DAMAGES
1.3.6.1 Consultant and City waive consequential damages for claims, disputes or other matters in question arising out of
or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages
due to either party's termination in accordance with Paragraph 1.3.7.
1.3.7 TERMINATION OR SUSPENSION
1.3.7.1 If City fails to make payments to Consultant in substantial compliance with this Agreement, such failure may be
considered substantial nonperformance and cause for suspension of performance of services under this
Agreement. If Consultant elects to suspend services, prior to suspension of services, Consultant shall give fifteen
(15) days' written notice to City. In the event of a suspension of services, Consultant shall have no liability to
City for delay or damage caused City because of such suspension of services. Before resuming services,
Consultant shall be paid all non -disputed sums due prior to suspension Consultant's fees for the remaining
services and the time schedules shall be equitably adjusted. However, it is expressly agreed and understood by
all parties that the total sum of $11,500.00, plus reimbursable expenses in the total sum of $1,000.00 shall
represent the absolute limit of City's liability to Consultant, unless same shall be changed by Supplemental
Agreement hereto. Any such Supplemental Agreement to this Agreement must be duly authorized by City
Council resolution or appropriate action of the City Manager.
1.3.7.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Consultant that City
may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the
convenience of City, upon fifteen (15) days' written notice to Consultant, with the understanding that
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immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease.
Consultant shall invoice City for all work satisfactorily completed and shall be compensated in accordance with
the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due
for lost or anticipated profits. All plans, field surveys, maps, cross sections and other data, designs and work
related to the Project shall become the property of City upon termination of this Agreement, and shall be
promptly delivered to City in a reasonably organized form without restriction on future use. Should City
subsequently contract with a new engineer for continuation of services on the Project, Consultant shall cooperate
in providing information.
1.3.7.3 Nothing contained in Paragraph 1.3.7.2 shall require City to pay for any work which is unsatisfactory as
determined by City's representative or which is not submitted in compliance with the terms of this Agreement.
City shall not be required to make any payments to Consultant when Consultant is in default under this
Agreement, nor shall this section constitute a waiver of any right, at law or at equity, which City may have if
Consultant is in default, including the right to bring legal action for damages or to force specific performance of
this Agreement.
1.3.8 PAYMENTS TO CONSULTANT
1.3.8.1 Payments on account of services rendered and for Reimbursable Expenses incurred shall be made monthly upon
presentation of Consultant's statement of services. Consultant's invoices to City shall provide complete
information and documentation to substantiate Consultant's charges, and shall be in a form specified by City. All
payments to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by
City's Director. Such invoices shall conform to the schedule of services and costs in connection therewith.
1.3.8.2 Reimbursable Expenses are in addition to compensation for Consultant's services and include expenses incurred
by Consultant and its employees and consultants directly related to the Project, as identified herein:
.1 transportation in connection with the Project, authorized out-of-town travel, and electronic communications;
.2 reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service;
.3 reimbursable expenses as designated in Article 1.4;
.4 other similar direct Project related expenditures.
1.3.8.3 Records of Reimbursable Expenses, of expenses pertaining to a Change in Services, and of services performed on
the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to City or City's authorized
representative at mutually convenient times. All Reimbursable Expenses shall be clearly shown on invoices.
Should additional backup material be requested by City, Consultant shall comply promptly with such request. In
this regard, should City's Director determine it necessary, Consultant shall make all records and books relating to
this Agreement available to City for inspection and auditing purposes.
1.3.8.4 Direct Personnel Expense is defined as the direct salaries of Consultant's personnel engaged on the Project and
the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as
employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, employee
retirement plans and similar contributions.
1.3.8.5 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 the same to meet the requirements of this Agreement. Following approval of invoices,
City will endeavor to pay Consultant promptly, but not later than the time period required under the Texas Prompt
Payment Act; however, under no circumstances shall Consultant be entitled to receive interest on payments which
are late because of a good faith dispute between Consultant and City or because of amounts which City has a right
to withhold under this Agreement or state law.
1.3.8.6 Owner may, at its option, offset any amounts due and payable under this Agreement against any debt (including
taxes) lawfully due to City from Consultant, regardless of whether the amount due arises pursuant to this
Agreement or otherwise and regardless of whether the debt due to City has been reduced to judgment by a court.
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1.3.8.7 Records of Architect/Consultant pertaining to this Project, and records of accounts between Owner and
Architect/Consultant, shall be kept on a generally recognized accounting basis and shall be available to Owner or
its authorized representatives at mutually convenient times.
1.3.9 INDEMNIFICATION
1.3.9.1. Consultant's Responsibility for Work. Approval by City shall not constitute nor be deemed a release of the
responsibility and liability of Consultant, its employees, subcontractors, agents and subconsultants for the
accuracy and competency of their Designs, Working Drawings, Specifications or other documents and work; nor
shall such approval be deemed to be an assumption of such responsibility by City for any defect, error or
omission in the Designs, Working Drawings, and Specifications or other documents prepared by Consultant, its
employees, subcontractors, agents and subconsultants.
1.3.9.2 Indemnification (Damage Claims). Consultant agrees to defend, indemnify and hold City, its officers, agents
and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury
(including death), property damage or other harm for which recovery of damages is sought, suffered by any
person or persons, that may arise out of or be occasioned by Consultant's breach of any of the terms or provisions
of this Agreement, or by any negligent act or omission of Consultant, its officers, agents, associates, employees or
subconsultants, in the performance of this Agreement; except that the indemnity provided for in this paragraph
shall not apply to any liability resulting from the negligence of City, its officers, agents, employees or separate
contractors, and in the event of joint and concurrent negligence of both Consultant and City, responsibility and
indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without,
however, waiving any governmental immunity available to City under Texas law and without waiving any
defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties
hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
1.3.9.3 Indemnification (Patent and Copyright Claims). Consultant agrees to indemnify City, its officers, agents and
employees, against a claim that any of the Designs, Plans or Specifications prepared by Consultant, its employees,
associates or subconsultants, pursuant to this Agreement infringe a U.S. patent or copyright directly, indirectly or
contributorily. Consultant will pay any and all resulting costs, damages and attorney's fees finally awarded,
provided that:
(1) City promptly notifies Consultant in writing of the claim; and
(2) Consultant has sole control of the defense and all related settlement negotiations.
(a) If Consultant defends City against such claims, the City Attorney of City shall be kept
informed of settlement negotiations, and shall execute any settlement agreement reached by
Consultant on City's behalf.
(b) Consultant's defense and indemnification under this section is conditioned on City's
agreement that if any of the Designs, Plans or Specifications, become, or in Consultant's
opinion are likely to become, the subject of such a claim, City will permit Consultant, at
Consultant's option and expense, either to procure the right for City to continue using the
designs, plans or specifications or to replace or modify the same so that they become non -
infringing; and if neither of the foregoing alternatives is available on terms which are
reasonable in Consultant's judgment, City, to the extent it is legally able to do so, will cease
using the Designs, Plans or Specifications on written request of Consultant, in which instance
City has the sole option to either require Consultant to perform new design work at
Consultant's sole expense, or to terminate this Agreement.
(c) Consultant has no liability under this section for any claim of infringement based upon the
modification or alteration of the Designs, Plans or Specifications prepared under this
Agreement subsequent to the Project by City, or by any engineering consultant subsequently
employed by City.
(d) The foregoing states the entire obligation of Consultant with respect to infringement of
patents and copyrights.
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(3)
The indemnification and defense provisions as set forth in this Paragraph 1.3.9 shall not apply to
products or materials which City has required that Consultant includes in any of the Designs, Plans and
Specifications, or which are substituted by Contractor or any of its subcontractors during the
Construction Phase of this Agreement.
1.3.10 INSURANCE
1.3.10.1 Insurance. Consultant, at its sole cost, shall have and maintain during the term of this Agreement professional
liability insurance coverage in the minimum amount of Two Hundred Fifty Thousand Dollars from a company
authorized to do insurance business in Texas and otherwise acceptable to Owner.
1.3.10.2 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 this
Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in Paragraph
1.3.10.1 above, including the required provisions and additional policy conditions as shown below in Paragraph
1.3.10.3. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages
as prescribed under these requirements. Consultant's certificate of insurance shall note in such event that the
subconsultants are included as additional insureds.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure
compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration
of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its
subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of
insurance.
1.3.10.3 Insurance Policy Endorsements. Each insurance policy under Paragraph 1.3.10.1 shall include the following
conditions by endorsement to the policy:
(1)
Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -renewal or any material change
in coverage, a notice thereof shall be given to City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation, non -renewal, or
material change in coverage it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or
assessments for any deductibles which all are at the sole responsibility and risk of Consultant.
(3)
The Term "City" or "City of Round Rock" shall include all authorities, Boards, Commissions, Departments, and
officers of City and the individual members, employees and agents thereof in their official capacities, and/or while
acting on behalf of the City of Round Rock.
(4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such
future coverage, or to City's Self -Insured Retentions of whatever nature.
1.3.10.4 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 City.
ARTICLE 1.4 COMPENSATION
1.4.1 For Consultant's services as described herein, compensation shall be computed as follows:
Consultant's compensation for services under this Agreement shall not exceed $11,500.00 for delineated services,
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and shall not exceed $1,000.00 for Reimbursable Expenses, totaling the not -to -exceed sum of $12,500.00, which
sum shall include all deliverables and shall include reimbursable expenses at actual cost and as actually incurred.
Payment to Architect/Consultant for approved reimbursable expenses shall not exceed the stated sum of
$1,000.00 without prior express written approval from Owner.
The not -to -exceed sum for services shall be payable as follows:
Construction Phase 80% $ 9,200.00
Submittal Review/Construction Administration 20% $ 2,300.00
Total Fee: 100% $11,500.00
1.4.2 If the services of Consultant are changed as described in Paragraph 1.3.3, Consultant's compensation shall be
adjusted. Such adjustment shall be calculated as described below.
1.4.3 For a Change in Services of Consultant's subconsultants, compensation shall be computed as a multiple of one
(1.00) times the amounts billed to Consultant for such services.
1.4.4 For Reimbursable Expenses as described herein, and any other items included in Article 1.4 as Reimbursable
Expenses, the compensation shall be computed as a multiple of one (1.00) times the expenses incurred by
Consultant and its employees and subconsultants.
1.4.5 Other Reimbursable Expenses, if any, are as follows: None.
1.4.6 An initial payment of Zero and No/100 Dollars ($ 0.00) shall be made upon execution of this Agreement and is
the minimum payment under this Agreement. Subsequent payments for services shall be made monthly and,
where applicable, shall be in proportion to services performed on the basis set forth in this Agreement.
1.4.7 Payments are due and payable thirty (30) days from the date of Consultant's invoice, or not later than the time
period required under the Texas Prompt Payment Act, whichever is later. Non -disputed amounts unpaid sixty
(60) days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal
rate prevailing from time to time at the principal place of business of Consultant.
One and one-half percent (1 1/2 %) per month
(Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other
regulations at Owner's and Architect's/Consultant's principal places of business, the location of the Project and elsewhere may
affect the validity of this provision. Specific legal advice should be obtained with respect to deletions or modifications, and also
regarding requirements such as written disclosures or waivers)
1.4.8 No deductions shall be made from Consultant's compensation on account of penalty, liquidated damages or other
sums withheld from payments to contractors.
1.4.9 No additions shall be made to Consultant's compensation based upon Project construction claims, whether paid
by City or denied.
ARTICLE 1.5 MISCELLANEOUS PROVISIONS
1.5.1 This Agreement shall be governed by the laws of the state of Texas, and venue shall lie in Williamson County,
Texas. This Agreement contains the entire and fully integrated agreement between the parties hereto and
supersedes all prior and contemporaneous negotiations, representations, agreements, or understandings, whether
written or oral. This Agreement may be supplemented or amended only by a written document executed by both
parties and implemented in accordance with provisions herein. Any provision in this Agreement which is
prohibited or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. The non -enforcement of any provision by either party
shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the
remainder of this Agreement.
1.5.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have
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accrued and applicable statutes of limitations shall commence to run not later than either the date of Substantial
Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final
Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such
statutes of limitations begin to run any later than the date when Consultant's services are substantially completed.
1.5.3 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a
third party against either City or Consultant.
1.5.4 Unless otherwise provided in this Agreement, Consultant's subconsultants shall have no responsibility for the
discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials or toxic
substances in any form at the Project site. It is expressly understood and agreed by and between the parties hereto
that City does not request or require that Consultant undertake or perform any services, studies or tests, or make
any determinations involving hazardous substances or conditions, as defined by federal or state law. Therefore,
Consultant undertakes no such obligation, and City agrees to indemnify and hold harmless Consultant from and
against any claims, losses, damages, liability, and costs arising out of or in any manner connected with the
presence, discharge, release, or escape of hazardous substances or conditions of any kind, or environmental
liability of any nature, in any manner related to services performed by Consultant. If any hazardous substance or
condition is observed by Consultant, it may be permitted by City to cease services until the hazardous substance or
condition has been eliminated. Consultant shall have the obligation to notify City of any such substance or
condition of which Consultant becomes aware, and City shall be responsible for its elimination.
1.5.5 Consultant shall have the right to include photographic or artistic representations of the design of the Project
among the Consultant's promotional and professional materials. Consultant shall be given reasonable access to the
completed Project to make such representations. However, Consultant's materials shall not include City's
confidential or proprietary information if City has previously advised Consultant in writing of the specific
information considered by City to be confidential or proprietary. City may provide professional credit for
Consultant in City's promotional materials for the Project.
1.5.6 If City requests Consultant to execute certificates, the proposed language of such certificates shall be submitted to
Consultant for review at least fourteen (14) days prior to the requested dates of execution. Consultant shall not be
required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this
Agreement.
1.5.7 City and Consultant, respectively, bind themselves, their partners, successors, assigns and legal representatives to
the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other
party with respect to all covenants of this Agreement. Nothing in this Agreement shall be construed to give any
rights or benefits in this Agreement to anyone other than Consultant and City, and all duties and responsibilities
undertaken pursuant to this Agreement will be for the sole and exclusive benefit of City and Consultant and not
for the benefit of any other party. Neither City nor Consultant shall assign, sublet or transfer any rights under or
interest in this Agreement without the written consent of the other, except that City may assign this Agreement to
an institutional lender providing financing for the Project. In such event, the lender shall assume City's rights and
obligations under this Agreement. Consultant shall execute all consents reasonably required to facilitate such
assignment.
1.5.8 Consultant, its subconsultants, agents, employees and subcontractors, shall comply with applicable federal and
state laws, the Charter and ordinances of the City of Round Rock, in effect at applicable times, and with all
applicable rules and regulations promulgated by all local, state and national boards, bureaus and agencies.
Consultant shall further obtain all permits and licenses required in the performance of the professional services
contracted for herein.
1.5.9 Consultant shall pay any taxes required by law arising by virtue of services performed hereunder. City is
qualified for exemption pursuant to provisions of §151.309 of the Texas Limited Sales, Excise, and Use Tax Act.
1.5.10 Consultant covenants and represents that Consultant, its officers, employees, agents, subconsultants and
subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials
or equipment that will be recommended or required for the design or construction of the Project.
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1.5.11 All notices and correspondence from Consultant to City shall be mailed or delivered as follows:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
All notices and correspondence from City to Consultant shall be mailed or delivered as follows:
Hendrix Consulting Engineers (HCE)
115 East Main Street
Round Rock, Texas 78664
1.5.12 Unless otherwise expressly provided, Consultant shall have access to the site for activities necessary for the
performance of required services. Consultant shall take all reasonable precautions to prevent and/or minimize
damage due to such activities.
This Agreement entered into as of the day and year first written above.
OWNER
CONSULTANT
CITY OF ROUND ROCK, TEXAS HENDRIX CONSULTING EN
By:
Title:
Date:
4N Mary46ev
S -24 -o(
Christine R. Martinez, City Secretary
FOR ITY, APPROVED AS TO FORM:
Stephan ►\ Sheets, City Attorney
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By:
Title:
Date:
DATE: May 22, 2006
SUBJECT: City Manager Approval - May 26, 2006
ITEM: Action authorizing the City manager to execute an agreement with
Hendrix Consulting Engineers (HCE) for design and specifications for
Backup Generator and IT Upgrades at City Hall.
Department: Engineering and Development Services
Staff person: Tom Word, Chief of P.W. Operations
Larry Madsen, Liaison Construction Manager
Justification:
This agreement provides for drawing and specifications for backup generator for
emergency situations due to power outage at City Hall. This would also provide
protection and UPS backup at the server room. In situations of loss of power this
would insure that the computer servers would have backup power to run the
servers as well as provide air conditioning for the equipment. The generator
would also provide power for emergency lighting for exits.
Funding:
Cost: $12,500
Source of funds: General Finance Construction Fund
Outside Resources:
Background Information:
Public Comment: N/A