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CM-06-09-198CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES FOR AQUATIC CENTER MASTER PLAN UPDATE SERVICES WITH KIMLEY-HORN AND ASSOCIATES, INC. THIS AGREEMENT for professional consulting services relating to the City of Round Rock's study of the feasibility of expanding the existing Rock'n River Family Aquatic Center (the "Agreement") is made by and between the City of Round Rock, a Texas home -rule municipal corporation, with offices located at 221 East Main Street, Round Rock, Texas 78664- 5299, (the "City") and Kimley-Horn and Associates, Inc. (the "Consultant"), with offices located at 12700 Park Central Drive, Suite 1800, Dallas, Texas 75251. RECITALS: WHEREAS, City has determined that there is a need for the delineated services; and WHEREAS, City desires to contract for such professional services; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 EFFECTIVE DATE, DURATION, AND TERM This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. The term of this Agreement shall be until full and satisfactory completion of the work specified herein is achieved, but in no event later than three (3) months from the effective date of this Agreement. City reserves the right to review the Agreement at any time, including at the end of any deliverable or phase or task, and may elect to terminate the Agreement with or without cause or may elect to continue. 1.02 CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant a total sum not to exceed Five Thousand One Hundred and No/100 Dollars ($5,100.00), in payment for services and the Scope of Services deliverables as delineated 00104402/jkg in Exhibit "B" attached hereto and incorporated herein for all purposes. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.04. 1.03 SCOPE OF SERVICES For purposes of this Agreement, Consultant has issued its Scope of Services for the assignments delineated herein, and such Scope of Services is delineated in Exhibit "B" attached hereto and incorporated herein for all purposes. This Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Consultant shall satisfactorily provide all services and deliverables described under the referenced Scope of Services within the contract term specified in Section 1.01. Consultant's undertakings shall be limited to performing services for the City and/or advising the City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement and with the referenced Scope of Services. Consultant shall perform its services in a professional and workmanlike manner. Consultant shall not undertake work that is beyond the Scope of Services set forth in Exhibit "B." However, either party may make written requests for changes to the Scope of Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 1.05 hereof. 1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES Payment for Services: In consideration for the consulting services to be performed by Consultant, the City agrees to pay Consultant as follows: Fees for the listed deliverables in the total amount of Five Thousand One Hundred and No/100 Dollars ($5,100.00) shall be paid by the City in the following manner: To receive payment, Consultant shall prepare and submit detailed monthly invoices to the City for services rendered in correlation with Exhibit "B." If the City has any dispute with services performed, then the City shall notify Consultant within thirty (30) days after receipt of invoice. In the event of any dispute regarding the services performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide the City with an appropriate credit. Payment for Reimbursable Expenses: Reimbursable expenses authorized by the City shall be paid to Consultant at actual cost upon Consultant properly invoicing for same and providing documentation for same. Such reimbursable expenses shall not exceed the total amount of Six Hundred and No/100 Dollars ($600.00). 2 Not -to -Exceed Total Payment for Services: Unless subsequently changed by Supplemental Agreement to this Agreement, Consultant's total compensation for consulting services hereunder shall not exceed Five Thousand One Hundred and No/100 Dollars ($5,100.00). This amount represents the absolute limit of the City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and the City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's professional fees for work done on behalf of the City. Deductions: No deductions shall be made for Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions: No additions shall be made to Consultant's compensation based upon project claims, whether paid by the City or denied. 1.05 SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or by the City Manager, if the City determines that there has been a significant change in (1) the scope, complexity, or character of the services to be performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. Consultant shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and the City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. 1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment following delivery of all deliverables, Consultant shall prepare and submit detailed monthly progress invoices to the City, in accordance with the delineation contained herein, for services rendered. Such invoices for professional services shall track the referenced Scope of Services, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by the City. Such invoices shall conform to the schedule of services and costs in connection therewith. Should additional backup material be requested by the City relative to service deliverables, Consultant shall comply promptly. In this regard, should the City determine it necessary, Consultant shall make all records and books relating to this Agreement available to the City for inspection and auditing purposes. Payment of Invoices: The City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of an invoice, the City shall endeavor to pay 3 Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.10 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which are late because of a good faith dispute between Consultant and the City or because of amounts which the City has a right to withhold under this Agreement or state law. The City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. 1.07 REQUIRED DRAFT REPORT AND FINAL REPORT Consultant agrees to provide the City with any necessary draft reports and a detailed final written report, together with all information gathered and materials developed during the course of the project. Additionally, Consultant agrees to provide the City any necessary oral presentations of such written reports, at the City's designation and at no additional cost to the City. 1.08 LIMITATION TO SCOPE OF WORK Consultant and the City agree that the Scope of Services to be performed is enumerated in Exhibit "B" herein, and may not be changed without the express written agreement of the parties. Notwithstanding anything herein to the contrary, the parties agree that the City retains absolute discretion and authority for all funding decisions, such to be based solely on criteria accepted by the City which may be influenced by but not be dependent on Consultant's work. 1.09 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by its budget for the fiscal year in question. The City may effect such termination by giving Consultant written notice of termination at the end of its then -current fiscal year. 1.10 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Consultant will be made within thirty (30) days of the day on which the City receives the performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which the City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Consultant may charge a late fee of one percent (1%) for payments not made in accordance with this prompt payment policy; however, this policy does not apply to payments made by the City in the event: (1) There is a bona fide dispute between the City and Consultant concerning the supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or 4 (2) The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or (3) There is a bona fide dispute between the parties and subcontractors or between a subcontractor and its suppliers concerning supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or (4) Invoices are not mailed to the City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 1.11 TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that the City may terminate this Agreement for the convenience of the City, upon fifteen (15) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work being performed under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily completed and shall be compensated in accordance with the terms hereof for work accomplished prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or anticipated profits for work terminated under this Agreement. Unless otherwise specified in this Agreement, all data, information, and work product related to this project shall become the property of the City upon termination of this Agreement, and shall be promptly delivered to the City in a reasonably organized form without restriction on future use. Should the City subsequently contract with a new consultant for continuation of service on the project, Consultant shall cooperate in providing information. Termination of this Agreement shall extinguish all rights, duties, and obligations of the parties to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which is unsatisfactory as determined by the City or which is not submitted in compliance with the terms of this Agreement. Default: The City may terminate this Agreement, in whole or in part, for default if the City provides Consultant with written notice of such default and Consultant fails to cure such default to the satisfaction of the City within ten (10) business days of receipt of such notice (or a greater time if permitted by the City). If Consultant defaults in performance of this Agreement and if the City terminates this Agreement for such default, then the City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to the City, the cost to the City of employing another firm to complete the useable work, and other factors will affect the value to the City of the work performed at the time of default. Consultant shall not be entitled to any lost or anticipated profits for work terminated for default hereunder. 5 The termination of this Agreement for default shall extinguish all rights, duties, and obligations of the City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained herein shall require the City to pay for any work deemed unsatisfactory by the City, or which is not submitted in compliance with the terms hereof. 1.12 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not the City's employee. Consultant's employees or subcontractors are not the City's employees. This Agreement does not create a partnership, employer-employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and the City agree to the following rights consistent with an independent contractor relationship: (1) Consultant has the right to perform services for others during the term hereof. (2) Consultant has the sole right to control and direct the means, manner and method by which services required by this Agreement will be performed. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and the City shall not hire, supervise, or pay assistants to help Consultant. (5) Neither Consultant nor its employees or subcontractors shall receive training from the City in skills necessary to perform services required by this Agreement. (6) City shall not require Consultant or its employees or subcontractors to devote full time to performing the services required by this Agreement. (7) Neither Consultant nor its employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of the City. 1.13 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or shall employ any person employed then or within the preceding twelve (12) months by the other or any affiliate of the other if such person was involved, directly or indirectly, in the performance of 6 this Agreement. This provision shall not prohibit the hiring of any person who was solicited solely through a newspaper advertisement or other general solicitation. 1.14 CITY'S RESPONSIBILITIES Full information: The City shall provide full information regarding project requirements. The City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required to enable Consultant to provide the services called for. The City shall cause its employees and any third parties who are otherwise assisting, advising or representing the City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by the City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by the City or its designated representative concerning provision of services. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. The City shall furnish information which includes but is not limited to access to the property, preliminary information and/or data regarding the site and surrounding property (if applicable), pertinent correspondence with other local municipal and planning officials, previous market analyses or feasibility studies, and other pertinent information. Consultant agrees, within ten (10) days of the effective date of this Agreement, to provide the City with a comprehensive and detailed information request list. 1.15 CONFIDENTIALITY; AND MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by the City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that the City is subject to the Texas Public Information Act and its duties run in accordance therewith. All data relating specifically to the City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential information of Consultant. The City's confidential information and Consultant's confidential information is collectively referred to as "Confidential Information." Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party's prior written consent, which consent 7 shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the confidentiality of the other party's Confidential Information and to advise their employees of the confidential nature of the Confidential Information and of the prohibitions herein. Notwithstanding anything to the contrary contained herein, neither party shall be obligated to treat as confidential any information disclosed by the other party (the "Disclosing Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to any other person or entity (including governmental agencies) without restriction; (3) is independently developed by the recipient without any reliance on Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any non-party. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including a subpoena or other similar form of process, provided that (without breaching any legal or regulatory requirement) the party to whom the request is made provides the other party with prompt written notice and allows the other party to seek a restraining order or other appropriate rel ief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Neither the City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, the City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for the City and delivered to the City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than the Deliverables). Consultant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to Consultant. The City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for the City's own internal use and only for the purposes for which they are delivered to the extent that they form part of the Deliverables. 1.16 WARRANTIES Consultant warrants that all services performed hereunder shall be performed consistent with generally prevailing professional or industry standards, and shall be performed in a professional and workmanlike manner. Consultant shall re -perform any work not in compliance with this warranty. 8 1.17 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event the City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to the City's satisfaction at no additional charge, or (b) if such deficient services cannot be cured within the cure period set forth herein in Section 1.11, then this Agreement may be terminated for default. In no event will Consultant be liable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by the City, its directors, employees or agents. In no event shall Consultant be liable to the City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by the City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 1.18 INDEMNIFICATION Consultant and the City each agree to indemnify, defend and hold harmless the other from and against any and all amounts payable under any judgment, verdict, court order or settlement for death or bodily injury or the damage to or loss or destruction of any real or tangible personal property to the extent arising out of the indemnitor's negligence in the performance of this Agreement. Consultant agrees to indemnify, defend and hold harmless the City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to the City in connection with the performance of this Agreement. Should the City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for the City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non - infringing while yielding substantially equivalent results. If neither of the above options are or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, the City shall return such deliverables provided, and Consultant will refund to the City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based upon (1) designs provided by or at the direction of the City or (2) specifications or other information provided by or at the direction of the City; or use of 9 systems, materials or work performed in a manner not permitted hereunder or by another obligation of the City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. The indemnified party shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through counsel of its own choosing. 1.19 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party may assign any rights or delegate any duties under this Agreement without the other party's prior written approval, which approval shall not be unreasonably withheld. 1.20 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. The City will not do the following: (1) Withhold FICA from Consultant's payments or make FICA payments on its behalf; (2) Make state and/or federal unemployment compensation contributions on Consultant's behalf; or (3) Withhold state or federal income tax from any of Consultant's payments. If requested, the City shall provide Consultant with a certificate from the Texas State Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 1.21 INSURANCE Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to the City. Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same 10 stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. The City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -renewal or any material change in coverage, a notice thereof shall be given to the City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify the City, within twenty-four (24) hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against the City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of the City and individual members, employees and agents in their official capacities, or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by the City, to any future coverage, or to the City's Self -Insured Retentions of whatever nature. (5) Consultant and the City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. 11 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. 1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Consultant, its consultants, agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to the City at the expiration of the term of this Agreement. 1.23 FINANCIAL INTEREST PROHIBITED Consultant covenants and represents that Consultant, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required under this Agreement. 1.24 DESIGNATION OF REPRESENTATIVES The City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Rick Atkins Director, Parks and Recreation Department City of Round Rock 221 East Main Street Round Rock, Texas 78664 (512) 218-5540 Email: ratkins@round-rock.tx.us Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Mark C. Hatchel, RLA, ASLA 12700 Park Central Drive, Suite 1800 Dallas, Texas 75251 (972) 770-1350 mark.hatchel@kimley-horn.com 1.25 NOTICES All notices and other communications in connection with this Agreement shall be in 12 writing and shall be considered given as follows: (1) When delivered personally to recipient's address as stated herein; or (2) Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Consultant: Thomas L. Whalen, Vice President Kimley-Horn and Associates, Inc. 12700 Park Central Drive, Suite 1800 Dallas, Texas 75251 Notice to City: City Manager, City of Round Rock 221 East Main Street Round Rock, TX 78664 AND TO: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of the City and Consultant. 1.26 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of Texas. 1.27 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties understand and expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 13 1.28 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator, the City shall select one mediator and Consultant shall select one mediator and those two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. The City and Consultant hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 1.29 FORCE MAJEURE Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or a breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to the City if its failure to perform or its substantial delay in performance is due to the City's failure to timely provide requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 1.30 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.31 STANDARD OF CARE Consultant represents that it is specially trained, experienced and competent to perform 14 all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed, whether by Consultant or designated subconsultants, in a manner according to generally accepted business/industry practices. 1.32 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing and signed by an authorized representative of the party against whom such waiver or discharge is sought to be enforced. This Agreement may be executed in multiple counterparts, which taken together shall be considered one original. The City agrees to provide Consultant with one fully executed original. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of Round Rock, Texas By: Attest: JamI25 R JuSe, RE. alatithA&I) 1€. Title: Date Signed: Kimley-H By: Title: V'/GE P/IY Date Signed: /—/V O b ssoc es, 15 Christine R. Martinez, City Secretary For i , Approved s to Form: Stepha ' L. Sheets, City Attorney 09/13/2006 Kimley-Hom and Associates, Inc. Exhibit "A" SERVICES TO BE PERFORMED BY CITY Rock'n River Family Aquatic Center Master Plan Update Round Rock, Texas The Consultant understands that the City will provide the following information, on which we may rely, for our use in completing this Scope of Services: 1) Any previously prepared surveys or construction documents for Old Settlers Park. 2) A copy of the Round Rock Parks and Recreation Master Plan. 3) Any City of Round Rock design requirements or standards applicable to the aquatic facility. 4) Any plans of existing or proposed utilities, parking, and streets within or adjacent to the site in Old Settlers Park. 5) Any existing boundary and topographic survey of the site at Old Settlers Park. 09/13/2006 © Kimley-Hom OM 1 and Associates, Inc. Exhibit "B" SERVICES TO BE PERFORMED BY CONSULTANT Rock'n River Family Aquatic Center Master Plan Update Round Rock, Texas Project Understanding It is our understanding that the City is considering the expansion of the existing family aquatic center in possibly two phases. In order to assist the City in considering this work, we propose to develop the following: Working with the Client, develop a design program and opinion of probable costs for two possible expansion phases budgeted at approximately $2.5M each. Task 1 — Work/Programming Session: Attend one 1/2 day work session with City representatives to discuss programming options and develop concepts for future phases based upon comments from staff. Task 2 — Prepare Final Concept: Based upon the direction information gathered and direction received at the '/2 day work session, provide one final conceptual master plan rendering and opinions of probable cost. Note: Any items requested by the City that are not outlined in the above scope will be considered an addition to this contract and may be provided as requested and authorized by the City. 09/13/2006 piPri limn' Kimley-Horn INIIand Associates, Inc, Exhibit "C" Work Schedule Rock' River Family Aquatic Center Master Plan Update Round Rock, Texas Signed Contract and Authorization to Proceed September 2006 Master Plan Complete October 2006 Note: The project is anticipated to require approximately thirty (30) days from notice to proceed. 09/13/2006 © IMO — VI Kimley-Horn and Associates, Inc. Exhibit "D" FEE SCHEDULE Rock'n River Family Aquatic Center Master Plan Update Round Rock, Texas Task 1 Work/Programming Session $2,500 Senior Professional 10 Hours @ $150/HR = $1,500 Designer 10 Hours @ $100/HR = $1,000 Task 2 Prepare Final Concept $2,600 Senior Professional 4 Hours @ $150/HR = $600 Designer 20 Hours @ $100/HR = $2,000 TOTAL $5,100 Travel and Reimbursable Expenses (Lump Sum) $600 $300/Trip x 1 Trips = $300 Miscellaneous Expenses (Phone, FAX, Express Mail, Plots) $300 TOTAL $5,700 Additional Services The following hourly rates will be utilized as the basis for additional services should they be authorized by the City for Rockn River Family Aquatic Center Master Plan located in Round Rock, Texas. Senior Professional $115-$155 Designer $95-$105 Clerical/Administrative Support $55-$75 09/13/2006 ©MIN ry Kimley Horn M and Associates, Inc. Exhibit "E" CERTIFICATES OF INSURANCE Rock'n River Family Aquatic Center Master Plan Update Round Rock, Texas (See Attached) ACORDTM CERTIFICATE OF LIABIL PRODUCER (904) 396-4404 ABERCROMDI8 INSURANCI! AGENCY, INC. P. O. BOX 5857 JACKSONVILLE FL 32247-5857 INSURED ICINLEY-HORN AND ASSOCIATES, INC. P. O. SOX 33068 RALEIGH NC 27636-306 ITY INSURANCE THIS CERTIFICATE IS ISSUED AS A MATTER OF ONLY AND CONFERS NO RIGHTS UPON THE HOLDER. THIS CERTIFICATE DOES NOT AMEND. ALTER THE COVERAGE AFFORDED BY THE POLICIES DATE(YWDOITYYY) Oa/OB/x006 INFORMATION CERTIFICATE EXTEND OR BELOW. INSURERS AFFORDING COVERAGE NAM 9 INSURER A: TRAVELERS PROP CASUALTY 25674 INSURER 0: (A.M. HEST RATING A+) 3 5,000 INSURER C: 3 1,000,000 INSURER 0: f 2.000.000 INSURER E' $ 2.000.000 COVERAGES iiTHE POLICIES OF INSURANCE uSTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLIC REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS C THE INSURANCE AFFORDED BY THE PQUCIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLU AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NSR ADM, LTR WIRD TYPE OF INSURANCE A A GENERAL LIAINUTY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE EX OCCUR x a 4TkACTVAL LIIUB GEM AGGREGATE LIMIT P.M:LIES PER: 71 POLICY ( J JE&ri LOC AUTOMOBILE UASUUTY X X X r -- ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS GARAGE LIABILITY �^ ANY AUTO EXCESMJ1 RELIAUADILITT OCCUR CLAIMS MADE DEDUCTIBLE RETENTION 1 POLICY NUMBER DATE(EFFECTIVE MINOQ DICIIDATEJ MIYYj) P-630-31SXS47f-TIL-05 CAP-836C976A-05 09/01/2005 / / / / / 09/01/2005 / / / / / / 09/01/2006 / / / / 09/01/2006 / / / / .. WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORrPARTN£REXECVTIVE OFFICER/MEMBER EXCLUDED? It yes, describe under SPECIAL PROVISIONS below $360876-3-05 09/01/2005 09/01/2006 / / / / / / DESCRIPTION Of OPERATIONSfLOCAT10R5NEHICLEYJExCW310N$ ADDED AY ENOORSEMENTISPECIAL PROVISIONS OTHER / / / / / / PROJECT: RQCR'N RIVER MASTER PLAN UPDATE. THE CITY Is MANED AS AN ADD'L INEDRED WY NORRERB' COMPENTSATIOA 6 U PLOYZRE LI113ILITY_ CERTIFICATE BOLDER ( PERIOD INDICATED. NOTWITH5TANOING ANY , ERTIFICATE MAY BE ISSUED OR MAY PERTAIN. ;IONS AND CONDITIONS OF SUCH POLICIES. 1 UNITS EACH OCCURRENCE $ 1 , 000, 000 DAMAGE TO RENTED PREMISES (Ea occtrr9ncel $ 500,000 MO Ex? (Arlene person) 3 5,000 PERSONALS ADV INJURY 3 1,000,000 GENERAL AGGREGAG TE f 2.000.000 $ 2.000.000 ,PROOUCTS•COI.PMPAGG CSL 1,000,000 COMBINED SINGLE LIMIT (Ea accident) s 1,000,000 BODILY INJURY (Par Person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Por Maiden) S AUTO ONLY -EAACCIDENT $ OTHER THAN EA ACC 1 AUTO ONLY: AGG 6 EACH QCCURRENCE 1 AGGREGATE $ $ 1 $ REX >AIris_ TA'- .L. EACH ACCIDENT E.L. f 500,000 E.L. DISEASE -FA EMPLOYEE $ 550,000 E.L. DISEASE • POLICY LIMIT S 500,006 T{ RESPECT TO ALL POLICIES EXCEPT CANCELLATION ( ) - CITY MANA.GER CITY OF ROUND ROCIL 221 E. MAIN STREET _ ROUND ROCK ACORD 25 (2001108) et TM INS025 (0106).05 TX 78664 - SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED PSFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL V1 4IS*)(EI( NAIL 3 O DAYS WRITTEN NOTICE TO THE CERT1Fl TE HOLLER NAME) TV THE LEFT, 1800(X YOIXXXXXIIX3099X93414XXIM51981Rtgli 81ANKRVI6x1139L8X3mO041001c ELECTRONIC LASER FORME. INC. - ISMO % -0645 CORD CORPORATION 1985 Paye t of I BLUE SHEET FORMAT DATE: September 21, 2006 SUBJECT: City Manager Approval - September 29, 2006 ITEM: Request for approval of a Professional Services Agreement for the purpose of updating the Master Plan for the Rock'n River Family Aquatic Center. Department: PARD Staff Person: Rick Atkins, Parks and Recreation Director Aileen Dryden, Park Development Specialist Justification: This agreement will provide for an updated Master Plan for the project. Included in the Master Plan will be conceptual layout of additional amenities and cost estimates for potential future phases. Funding: $2,800,000.00 Cost: $5,700.00 Source of funds: General Capital Improvement Funds Outside Resources: Kimley-Horn and Associates, Inc. Background Information: The Old Settlers Park at Palm Valley Family Aquatic Center project involves the creation of an outdoor aquatic facility consisting of pool elements, as well as spray features and a water slide. This project was part of the 2001 G.O. Bond package. Public Comment: This project was the focus of a Mayor's Presidents Roundtable Meeting that was held on June 21, 2005. Blue Sheet Format Updated 01/20/04