CM-07-03-040Standard Form of Agreement
Between Owner and Design Consultant
Based on
AIA Document B141 - 1997
1997 Edition - Electronic Format
TABLE OF ARTICLES
1.1 INITIAL INFORMATION
1.2 RESPONSIBILITIES OF THE PARTIES
1.3 TERMS AND CONDITIONS
1.4 COMPENSATION
1.5 MISCELLANEOUS PROVISIONS
AGREEMENT made as of the / l.P (4h ) day of the month of len a{ (,1►l., in the year Two Thousand Seven.
BETWEEN Design Consultant's client identified as Owner:
City of Round Rock, Texas
221 East Main
Round Rock, Williamson and Travis Counties, Texas 78664
and Design Consultant:
Pfluger Wiginton Hooker PLLC
dba Pfluger Wiginton Hooker Architects (PWH)
5113 Southwest Parkway, Suite 260
Austin, TX 78735
For the following Project:
Professional pre -design services generally including kick-off and initial discussions, draft program, master plan
exercises, and final program and master plan, all as are related to the following: design and construction of a new
Round Rock Recreation Center facility on a probable site referred to as Deep Wood 'B' adjacent to Round Rock High
School and the Micki Krebsbach Outdoor Aquatic Center, Round Rock, Williamson County, Texas.
Owner and Design Consultant agree as follows:
00112092/jkg
C.44 01--065-0114)
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:
Design and construction of a new Round Rock Recreation Center facility to accommodate a fitness and exercise area, indoor
or sheltered warm water family oriented swim area, an indoor running and walking track, and other recreational outlets
beyond those currently available in the Clay Madsen Recreation Center.
1.1.2.2 The physical parameters are:
Facility to be built on a probable site referred to as Deep Wood `B' adjacent to Round Rock High School and the Micki
Krebsbach Outdoor Aquatic Center, Round Rock, Williamson County, Texas. Available area is approximately 19 acres;
however, actual size for this Project is estimated to be in the 8-10 acre range, and only the necessary area for this Project is
planned for purchase. Project is anticipated to share use of facilities and/or parking with Round Rock ISD and aquatic
center.
Site survey is anticipated showing trees, topography and utilities.
1.1.2.3 Owner's Scope of Services is:
Basic Services include the following:
Step 1 Kick -Off and Initial Discussions
PWH will hold a kick-off meeting to allow all members to better understand the work that has taken place to date,
and to establish the goals for this Project. Items of work included in this Step 1 are as follows:
(A) Meet with the Recreation Committee, City Manager, and other key stakeholders to determine Project
goals;
(B) Outline key program components, approximate sizes, and potential users;
(C) Evaluate critical adjacencies and separations within the building and on the site;
(D) Discuss security and public/private access goals within the building and relative to other users on the
site; and
(E) Discuss material and system choices in terms of cost and maintenance so that budget impact is
quantified.
Sten 2 Draft Program
PWH will begin researching, analyzing and compiling the draft program, and will look at associated costs. PWH
will look at comparables from other municipalities, as well as trends in that sector. PWH will consult its own
engineering team for input on building systems, cost, and performance. Once the fist draft has been assembled
and edited, PWH will send out copies for the City's initial review and comment. PWH will meet with the City as
necessary to narrow the focus of the program down to a preferred choice before moving into the next phase.
Step 3 Master Plan
PWH will conduct master plan exercises to pull in the key personnel for the Project, as well as any potential
shared entities, and will begin looking at site layouts and relationships. The meeting will take the form of a design
charette where as many site diagrams as possible will be explored. At the end of the session, the group will
evaluate the preferred scheme(s) for further study. Items of work included in this Step 3 are as follows:
(A) Explore joint use/sharing potential to maximize budget resources;
(B) Establish a clear site circulation system that works for all users and can accommodate future phasing;
Drop-off and waiting areas, lighting, service zones, as well as building massing and form are to be
investigated; and
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(C) Maximize outdoor activity and gathering space opportunities as a means to expand the site's usage.
Step 4 Finalize Program and Master Plan
At this last step, PWH will make any adjustments to the program as necessary or requested to develop the final
document. PWH will update such program for spatial adjustments as well as budget refinements. The Master
Plan will be drawn up in its final approved form. Copies will be made available to the City and staff, and the
PWH team will make a presentation to the City if requested. The goal for this last step is to have a clear program
document and master plan layout, approved by all critical parties, that is ready to move into the Schematic Design
Phase.
Optional Additional Services
Optional Additional Services may be provided by Design Consultant, at the sole election and at the express written
direction of Owner, on a negotiated fee basis.
1.1.2.4 The legal parameters are:
As delineated herein.
1.1.2.5 The financial parameters are as follows:
The Project budget is estimated to be $7,000,000. Estimated land costs, attorney costs, bond and public survey
fees that will come out of said amount total approximately $618,880. The estimated balance of $6,381,200 will
need to cover all construction costs, architectural and engineering fees, testing, and all other Project related fees.
Design Consultant's total compensation for services under this Agreement shall not exceed the sum of $23,760.00
for Basic Services, which sum shall include all deliverables but shall not include reimbursable expenses.
Payment to Design Consultant for approved reimbursable expenses (such as reproduction of plans and
specifications, plan distribution, review fees, postage, courier services, express delivery charges, travel, and the
like) shall not exceed the sum of $750.00 without prior express written approval from Owner.
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 such as architectural planning and consulting 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 Owner, the term of this Agreement shall be from the date hereof until final completion of
the Project and all architectural/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. Design 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, Design 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
Design Consultant's control.
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1.13 PROJECT TEAM
1.1.3.1 Owner's Designated Representative is:
Larry Madsen
Construction Manager, Public Works Department
City of Round Rock
2008 Enterprise Drive
Round Rock, Texas 78664
1.1.3.2 The persons or entities, in addition to Owner's Designated Representative, who are required to review Design
Consultant's submittals to Owner are:
City Manager James R. Nuse
221 East Main Street
Round Rock, Texas 78664
1.133 Owner's other consultants and contractors are:
Not selected at this time.
1.1.3.4 Design Consultant's Designated Representative is:
Don Greer, AIA
Vice President
Pfluger Wiginton Hooker, PLLC
5113 Southwest Parkway, Suite 260
Austin, TX 78735
1.1.3.5 The sub -consultants retained at the Design 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 Owner and
Contractor. Design 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 Owner of
the final certificate for payment. Duties, responsibilities and limitations of authority of Design Consultant shall
not be restricted, modified or extended without written agreement of Owner and Design 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 Owner and Design Consultant in
determining Design Consultant's compensation. However, it is expressly agreed and understood by all parties
that the total sum of $23,760.00, plus reimbursable expenses in the total sum of $750.00 shall represent the
absolute limit of Owner's liability to Design 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.
ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES
1.2.1 Owner and Design 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.
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1.2.2 OWNER
1.2.2.1 Unless otherwise provided under this Agreement, Owner shall provide full information in a timely manner
regarding requirements for and limitations on the Project. Owner shall furnish to Design Consultant, within fifteen
(15) days after receipt of a written request, information necessary and relevant for Design Consultant to evaluate,
give notice of or enforce lien rights.
1.2.2.2 Owner shall establish and periodically update the budget for the Project, including that portion allocated for the
Cost of the Work, Owner's other costs, and reasonable contingencies related to all costs.
1.2.2.3 Owner's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Owner's behalf
with respect to the Project. Owner or Owner's Designated Representative shall render decisions in a timely
manner pertaining to documents submitted by Design Consultant in order to avoid unreasonable delay in the
orderly and sequential progress of the Design Consultant's services.
1.2.2.4 Owner shall furnish the services of consultants other than those designated in Paragraph 1.1.3 or authorize Design
Consultant to furnish them as a Change in Services when such services are requested by Design Consultant and
are reasonably required by the scope of the Project and are approved by Owner.
1.2.2i Unless otherwise provided in this Agreement, and if requested in writing, Owner 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 Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be
reasonably necessary at any time for the Project to meet Owner's needs and interests.
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 Design Consultant's Instruments of Service.
1.2.2.8 Owner shall furnish, or direct Design Consultant to obtain at Owner's expense, 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.
1.2.3 DESIGN CONSULTANT
1.2.3.1 The services performed by Design Consultant, Design Consultant's employees and Design Consultant's
subconsultants shall be as enumerated in Paragraphs 1.1.2.3 and 1.2.4 and as enumerated elsewhere herein, in
attached and accompanying documents, in supplemental documents, and in related documents.
1.2.3.2 Design Consultant's services shall be performed as expeditiously as is consistent with professional skill and care
and the orderly progress of the Project. Design Consultant shall submit for Owner's approval a schedule for the
performance of Design 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 Owner, as the Project proceeds.
This schedule shall include allowances for periods of time required for Owner's review, for the performance of
Owner's consultants, and for approval of submissions by authorities having jurisdiction over the Project. Time
limits established by this schedule approved by Owner shall not, except for reasonable cause, be exceeded by
Design Consultant or Owner.
1.2.3.3 Design Consultant's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on Design
Consultant's behalf with respect to the Project.
1.2.3.4 Design Consultant shall maintain the confidentiality of information specifically designated as confidential by
Owner, unless withholding such information would violate the law, create the risk of significant harm to the public
or prevent Design Consultant from establishing a claim or defense in an adjudicatory proceeding. Design
Consultant shall require of Design Consultant's subconsultants similar agreements to maintain the confidentiality
of information specifically designated as confidential by Owner.
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1.2.3.5 Except with Owner's knowledge and consent, Design Consultant shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise Design Consultant's
professional judgment with respect to this Project.
1.2.3.6 Design Consultant shall review laws, codes, and regulations applicable to Design Consultant's services. Design
Consultant shall respond in the design of the Project to requirements imposed by governmental authorities having
jurisdiction over the Project.
1.2.3.7 Design Consultant shall be entitled to reasonably rely on the accuracy and completeness of services and
information furnished by Owner. 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 DESIGN CONSULTANT'S SERVICES
1.2.4.1 Basic Services.
Design Consultant's Basic Services consist generally of the services described herein, and include such other
services as may be necessary to assist Owner in the design and construction of the Project, within the limits Owner
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. Design Consultant agrees that upon execution of this Agreement, it will
submit to Owner within ten (10) days a list of all additional consultants it intends to utilize, not previously
identified, delineating their respective tasks. All of Design Consultant's sub -consultants shall be subject to the
approval of Owner, and Owner reserves the right to reject any consultant or sub -consultant. Design Consultant
shall perform all work hereunder in a manner satisfactory and acceptable to Owner, represented by its City
Manager or his/her designee, hereinafter referred to as "Director." A Performance Schedule shall be agreed to by
Design Consultant and Director, and Design Consultant agrees to use its best efforts to complete all services
hereunder in accordance with such Performance Schedule.
1.2.4.2 Project Representation Beyond Basic Services. In the event that circumstances should develop whereby
continuous, full-time representation at the Project site is required, the conditions under which such representation
shall be furnished and the Project Representatives selected, employed and directed shall be governed by an
additional written Supplemental Agreement between Owner and Design Consultant.
1.2.4.3 Additional Services. Design Consultant shall perform Additional Services, as requested by Owner, after a not -to -
exceed amount has been mutually agreed upon in writing by the Director and Design Consultant. Where City
Council authorization is required, Design 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 - 1.2.4.2,
which define and outline Design 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.
Preparing Change Orders and supporting data and/or revising previously approved plans when the changes in
approved Plans and Specifications are required by Owner, 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 Design Consultant, Owner shall not be liable to compensate Design Consultant for
Additional Services or expenses in such connection.
Providing other extraordinary professional services over and above the Contract Documents requirements, where
required and requested by Owner, including extraordinary professional services which might result if Owner
decides to further fast track the Project.
ARTICLE 13 TERMS AND CONDITIONS
13.1 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
Owner of all elements of the Project designed or specified by Design Consultant.
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1.3.1.3 The Cost of the Work does not include the compensation of Design Consultant and Design Consultant's sub -
consultants, the costs of the land, rights-of-way and financing or other costs that are the responsibility of Owner.
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 Design 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 Design Consultant's designs and work product 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 Owner to be thereafter used in any
lawful manner as Owner elects. Any such subsequent use made of documents by Owner shall be at Owner's sole
risk and without liability to Design Consultant, and Owner shall indemnify and hold harmless Design Consultant
from all claims, damages, losses and expenses, including but not limited to attorneys fees, resulting therefrom.
By execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement,
Design Consultant hereby conveys, transfers and assigns to Owner 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 Design Consultant. Design Consultant shall be liable to Owner for any loss or damage
to any such documents while they are in the possession of or while being worked upon by Design Consultant or
anyone connected with Design Consultant, including agents, employees, consultants or subcontractors. All
documents so lost or damaged shall be replaced or restored by Design Consultant without cost to Owner.
1.3.2.2 Upon execution of this Agreement, Design Consultant grants to Owner permission to reproduce Design
Consultant's Instruments of Service for purposes of constructing, using and maintaining the Project, provided that
Owner shall comply with its obligations, including prompt payment of all sums when due, under this Agreement.
Design Consultant shall obtain similar permission from Design Consultant's subconsultants consistent with this
Agreement. If and upon the date Design Consultant is adjudged in default of this Agreement, Owner is permitted
to authorize other similarly credentialed design professionals to reproduce and, where permitted by law, to make
changes, corrections or additions to the Instruments of Service for the purposes of completing, using and
maintaining the Project.
1.3.2.3 Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any permission granted herein to
another party without the prior written agreement of Design Consultant. However, Owner 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 Owner's sole risk and without liability to Design Consultant and its consultants.
1.3.2.4 Prior to Design Consultant providing to Owner any Instruments of Service in electronic form or Owner providing
to Design Consultant any electronic data for incorporation into the Instruments of Service, Owner and Design
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 Design Consultant for the convenience of Owner, and use of
them is at Owner'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 Design Consultant, the hardcopy shall prevail. Only printed
copies of documents conveyed by Design Consultant shall be relied upon. Because data stored in electronic media
format can deteriorate or be modified without authorization of the data's creator, Owner shall have sixty (60) days
to perform acceptance tests, after which time Owner is deemed to have accepted the data transferred.
1.3.2.5 All plans and drawings will be prepared and submitted by Design Consultant to Owner 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 Design Consultant shall have no liability for changes made to the drawings by other architects subsequent to the
completion of the Project. Any such change shall be sealed by the architect making that change and shall be
appropriately marked to reflect what was changed or modified.
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13.3 CHANGE IN SERVICES
1.3.3.1 Change in Services of Design Consultant, including services required of Design 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 $23,760.00, plus reimbursable
expenses in the total sum of $750.00 shall represent the absolute limit of Owner's liability to Design 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.
13.4 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 Design Consultant's services, Design
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 Owner and Design 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.
13.4.3 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.
13.5 ARBITRATION
13.5.1 Owner and Design Consultant hereby expressly agree that no claims or disputes between Owner and Design
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 Owner is subject to an
arbitration proceeding related to the Project, Design Consultant consents to be joined in the arbitration proceeding
if Design Consultant's presence is required or requested by Owner for complete relief to be accorded in the
arbitration proceeding.
13.6 CLAIMS FOR CONSEQUENTIAL DAMAGES
13.6.1 Design Consultant and Owner 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.
13.7 TERMINATION OR SUSPENSION
1.3.7.1 If Owner fails to make payments to Design 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 Design Consultant elects to suspend services, prior to suspension of services, Design
Consultant shall give fifteen (15) days' written notice to Owner. In the event of a suspension of services, Design
Consultant shall have no liability to Owner for delay or damage caused Owner because of such suspension of
services. Before resuming services, Design Consultant shall be paid all non -disputed sums due prior to
suspension Design 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 523,760.00, plus
reimbursable expenses in the total sum of $750.00 shall represent the absolute limit of Owner's liability to
Design 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.
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1.3.7.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Design Consultant
that Owner may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for
cause or for the convenience of Owner, upon fifteen (15) days' written notice to Design Consultant, with the
understanding that immediately upon receipt of said notice all work and labor being performed under this
Agreement shall cease. Design Consultant shall invoice Owner 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 Owner upon termination of
this Agreement, and shall be promptly delivered to Owner in a reasonably organized form without restriction on
future use. Should Owner subsequently contract with a new architect for continuation of services on the Project,
Design Consultant shall cooperate in providing information.
1.3.7.3 Nothing contained in Paragraph 1.3.7.2 immediately above shall require Owner to pay for any work which is
unsatisfactory as determined by Owner's representative or which is not submitted in compliance with the terms
of this Agreement. Owner shall not be required to make any payments to Design Consultant when Design
Consultant is in default under this Agreement, nor shall this section constitute a waiver of any right, at law or at
equity, which Owner may have if Design 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 DESIGN CONSULTANT
1.3.8.1 Payments on account of services rendered and for Reimbursable Expenses incurred shall be made monthly upon
presentation of Design Consultant's statement of services. Design Consultant's invoices to Owner shall provide
complete information and documentation to substantiate Design Consultant's charges, and shall be in a form
specified by Owner. All payments to Design Consultant shall be made on the basis of the invoices submitted by
Design Consultant and approved by Owner's Director. Such invoices shall conform to the schedule of services
and costs in connection therewith.
1.3.8.2 Reimbursable Expenses, in an amount not to exceed $750.00, are in addition to compensation for Design
Consultant's services and include expenses incurred by Design 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 Owner or Owner's
authorized representative at mutually convenient times. All Reimbursable Expenses shall be clearly shown on
invoices. Should additional backup material be requested by Owner, Design Consultant shall comply promptly
with such request. In this regard, should Owner's Director determine it necessary, Design Consultant shall make
all records and books relating to this Agreement available to Owner for inspection and auditing purposes.
1.3.8.4 Direct Personnel Expense is defined as the direct salaries of Design 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 Owner reserves the right to correct any error that may be discovered in any invoice that may have been paid to
Design Consultant and to adjust the same to meet the requirements of this Agreement. Following approval of
invoices, Owner will endeavor to pay Design Consultant promptly, but not later than the time period required
under the Texas Prompt Payment Act; however, under no circumstances shall Design Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Design Consultant and
Owner or because of amounts which Owner has a right to withhold under this Agreement or state law.
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13.8.6 Owner may, at its option, offset any amounts due and payable under this Agreement against any debt (including
taxes) lawfully due to Owner from Design Consultant, regardless of whether the amount due arises pursuant to
this Agreement or otherwise and regardless of whether the debt due to Owner has been reduced to judgment by a
court.
1.3.8.7 Records of Design Consultant pertaining to this Project, and records of accounts between Owner and Design
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
13.9.1. Design Consultant's Responsibility for Work. Approval by Owner shall not constitute nor be deemed a release
of the responsibility and liability of Design 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 Owner for any defect,
error or omission in the Designs, Working Drawings, and Specifications or other documents prepared by Design
Consultant, its employees, subcontractors, agents and subconsultants.
13.9.2 Indemnification (Damage Claims). Design Consultant agrees to defend, indemnify and hold Owner, 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 Design Consultant's breach of any of the terms or
provisions of this Agreement, or by any negligent act or omission of Design 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 Owner, its officers,
agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Design
Consultant and Owner, 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 Owner
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.
13.93 Indemnification (Patent and Copyright Claims). Design Consultant agrees to completely defend and indemnify
Owner, its officers, agents and employees, against a claim that any of the Designs, Plans or Specifications
prepared by Design Consultant, its employees, associates or subconsultants, pursuant to this Agreement infringe a
U.S. patent or copyright directly, indirectly or contributorily. Design Consultant will pay any and all resulting
costs, damages and attorney's fees finally awarded, provided that:
(1) Owner promptly notifies Design Consultant in writing of the claim; and
(2) Design Consultant has sole control of the defense and all related settlement negotiations.
(a) If Design Consultant defends Owner against such claims, the City Attorney of Owner shall be
kept informed of settlement negotiations, and shall execute any settlement agreement reached
by Design Consultant on Owner's behalf.
(b)
Design Consultant's defense and indemnification under this section is conditioned on
Owner's agreement that if any of the Designs, Plans or Specifications, become, or in Design
Consultant's opinion are likely to become, the subject of such a claim, Owner will permit
Design Consultant, at Design Consultant's option and expense, either to procure the right for
Owner 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 Design Consultant's judgment, Owner, to the extent Owner is
legally able to do so, will cease using the Designs, Plans or Specifications on written request
of Design Consultant, in which instance Owner has the sole option to either require Design
Consultant to perform new design work at Design Consultant's sole expense, or to terminate
this Agreement.
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(3)
(c) Design 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 Owner, or by any engineering consultant
subsequently employed by Owner.
(d) The foregoing states the entire obligation of Design Consultant with respect to infringement
of patents and copyrights.
The indemnification and defense provisions as set forth in this Paragraph 1.3.9 shall not apply to
products or materials which Owner has required that Design 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. Design Consultant, at its 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 Owner.
1.3.10.2 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Design Consultant,
Design 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, Design Consultant may include its subconsultants as additional insureds on
its own coverages as prescribed under these requirements. Design Consultant's certificate of insurance shall note
in such event that the subconsultants are included as additional insureds.
Design Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to
assure compliance with the insurance requirements. Design 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. Owner 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 Owner by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Design Consultant shall also notify Owner, 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 Owner for payment of any
premiums or assessments for any deductibles which all are at the sole responsibility and risk of Design
Consultant.
(3) The Term "City" or "City of Round Rock" shall include all authorities, Boards, Commissions,
Departments, and officers of Owner 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 Owner,
to any such future coverage, or to Owner's Self -Insured Retentions of whatever nature.
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1.3.10.4 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Design Consultant
shall be borne solely by Design Consultant, with certificates of insurance evidencing such minimum coverage in
force to be filed with Owner.
ARTICLE 1.4 COMPENSATION
1.4.1 For Design Consultant's services as comprehensively described herein, compensation shall be computed as
follows:
Design Consultant's compensation for services under this Agreement shall not exceed $23,760.00 for Basic
Services, which sum shall include all deliverables but shall not include reimbursable expenses. Payment to
Design Consultant for approved reimbursable expenses (such as reproduction of plans and specifications, plan
distribution, review fees, postage, courier services, express delivery charges, travel, and the like) shall not exceed
the sum of $750.00 without prior written approval from Owner.
1.4.2 If the services of Design Consultant are changed as described in Paragraph 1.3.3, Design Consultant's
compensation shall be adjusted. Such adjustment shall be calculated as described below.
1.4.3 For a Change in Services of Design Consultant's subconsultants, compensation shall be computed as a multiple of
one (1.00) times the amounts billed to Architect/Consultant for such services.
1.4.4 For Reimbursable Expenses as described herein, and any other items included in Article 1.4 as Reimbursable
Expenses, the compensation shall be computed as a multiple of one (1.00) times the expenses incurred by Design
Consultant and its employees and subconsultants.
1.4.5 Other Reimbursable Expenses, if any, are as follows: None
1.4.6 An initial payment of Zero and No/100 Dollars ($ 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 Design 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 Design Consultant.
One percent (1%) 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 Design 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 Design Consultant's compensation based upon Project construction claims, whether
paid by Owner 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.
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1.5.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have
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 Design 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 Owner or Design Consultant.
1.5.4 Unless otherwise provided in this Agreement, Design Consultant or Design 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 Owner does not request or require that Design 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, Design Consultant undertakes no such obligation, and Owner agrees to indemnify and hold
harmless Design 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 Design
Consultant. If any hazardous substance or condition is observed by Design Consultant, it may be permitted by
Owner to cease services until the hazardous substance or condition has been eliminated. Design Consultant shall
have the obligation to notify Owner of any such substance or condition of which Design Consultant becomes
aware, and Owner shall be responsible for its elimination.
1.5.5 Design Consultant shall have the right to include photographic or artistic representations of the design of the
Project among the Design Consultant's promotional and professional materials. Design Consultant shall be given
reasonable access to the completed Project to make such representations. However, Design Consultant's materials
shall not include Owner's confidential or proprietary information if Owner has previously advised Design
Consultant in writing of the specific information considered by Owner to be confidential or proprietary. Owner
shall provide professional credit for Design Consultant in Owner's promotional materials for the Project.
1.5.6 If Owner requests Design Consultant to execute certificates, the proposed language of such certificates shall be
submitted to Design Consultant for review at least fourteen (14) days prior to the requested dates of execution.
Design Consultant shall not be required to execute certificates that would require knowledge, services or
responsibilities beyond the scope of this Agreement.
1.5.7 Owner and Design 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 Design Consultant and
Owner, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive
benefit of Owner and Design Consultant and not for the benefit of any other party. Neither Owner nor Design
Consultant shall assign, sublet or transfer any rights under or interest in this Agreement without the written
consent of the other, except that Owner may assign this Agreement to an institutional lender providing financing
for the Project. In such event, the lender shall assume Owner's rights and obligations under this Agreement.
Design Consultant shall execute all consents reasonably required to facilitate such assignment.
1.5.8 Design Consultant, its subconsultants, agents, employees and subcontractors, shall comply with all 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.
Design Consultant shall further obtain all permits and licenses required in the performance of the professional
services contracted for herein.
1.5.9 Design Consultant shall pay any taxes required by law arising by virtue of services performed hereunder. Owner
is qualified for exemption pursuant to provisions of § 151.309 of the Texas Limited Sales, Excise, and Use Tax
Act.
1.5.10 Design Consultant covenants and represents that Design Consultant, its officers, employees, agents,
subconsultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any
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product, materials or equipment that will be recommended or required for the design or construction of the
Project.
1.5.11 All notices and correspondence to Owner by Design Consultant shall be mailed or delivered as follows:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
and to:
City Attorney, City of Round Rock
Stephan L. Sheets
309 East Main Street
Round Rock, Texas 78664
All notices and correspondence from Owner to Design Consultant shall be mailed or delivered as follows:
Pfluger Wiginton Hooker PLLC
dba Pfluger Wiginton Hooker Architects (PWH)
5113 Southwest Parkway, Suite 260
Austin, TX 78735
This Agreement entered into as of the day and year first written above.
OWNER
CITY OF ROUND ROCK, TEXAS
DESIGN CONSULTANT
PFLUGER WIGINTON HOOKER PLLC
By: By
Title 1+9 Title:
Date a d: 3.19• ape Date Signed:
ATTEST:
Christine R. Martinez, City Secretary
FO ' WNER, APPROVED AS TO FORM:
Steph. L. Sheets, City Attorney
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SUPPLEMENTAL AGREEMENT NO. 1
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
KNOW ALL BY THESE PRESENTS:
This document is entitled Supplemental Agreement No. 1, and it supplements Standard
Form of Agreement between Owner and Design Alliance based on AIA Document B141-1997
for the following Project:
Professional pre -design services generally including kick-off and initial
discussions, draft program, master plan exercises, and final program and master
plan, all as are related to the following: design and construction of a new Round
Rock Recreation Center facility on a probable site referred to as Deep Wood `B'
adjacent to Round Rock High School and the Micki Krebsbach Outdoor Aquatic
Center, Round Rock, Williamson County, Texas,
all as are more specifically identified and described in the accompanying Agreement.
„n This Supplemental Agreement No. 1 is made and entered into as of the 1 �A day of
1 / `Cll'Ci1, , 2007, and is by and between the same parties, those being the CITY OF
ROUND ROCK, a home -rule municipal corporation of Williamson County, Texas (hereinafter
referred to as "City" and/or "Owner") and PFLUGER WIGINTON HOOKER PLLC dba
PFLUGER WIGINTON HOOKER DESIGN CONSULTANTS, with offices located 5113
Southwest Parkway, Suite 260, Austin, 'TX 78735 (hereinafter referred to as "Design
Consultant").
WITNESSETH:
WHEREAS, City intends to design and construct the Project described in the
accompanying Agreement. Design Consultant's services are desired under this Supplemental
Agreement No. 1 for purposes as recited therein. Total compensation for Design Consultant's
services under this Supplemental Agreement No. 1 are as recited therein.
WHEREAS, City desires to contract with Design Consultant for provision of the therein -
described services in connection with the Project, all as previously and hereinafter stipulated and
within the limits the City has budgeted or will budget therefor; and
WHEREAS, Design Consultant has agreed to provide such professional services for the
compensation delineated therein;
NOW, THEREFORE, City and Design Consultant, in consideration of the terms,
covenants and conditions contained in the accompanying Agreement that this document
supplements, and the terms, covenants, and conditions contained herein, do hereby contract as
follows:
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C,IYI-o7-O3-O 0
ARTICLE I
SCOPE OF SERVICES AND COMPENSATION
1.01 Scope. Design Consultant, as an independent contractor and professional consultant in
its relationship with the City, shall perform all professional services for the Project as set forth in
the referenced documents.
1.02 Compensation. City shall compensate Design Consultant for the following Scope of
Work services, said compensation to be as delineated in the Agreement:
Basic Services include the following:
Step 1 Kick -Off and Initial Discussions $5,940.00
PWH will hold a kick-off meeting to allow all members to better understand the work
that has taken place to date, and to establish the goals for this Project. Items of work
included in this Step 1 are as follows:
(A) Meet with the Recreation Committee, City Manager, and other key
stakeholders to determine Project goals;
(B) Outline key program components, approximate sizes, and potential users;
(C) Evaluate critical adjacencies and separations within the building and on the
site;
(D) Discuss security and public/private access goals within the building and
relative to other users on the site; and
(E) Discuss material and system choices in terms of cost and maintenance so that
budget impact is quantified.
Step 2 Draft Program $5,940.00
PWH will begin researching, analyzing and compiling the draft program, and will
look at associated costs. PWH will look at comparables from other municipalities, as
well as trends in that sector. PWH will consult its own engineering team for input on
building systems, cost, and performance. Once the fist draft has been assembled and
edited, PWH will send out copies for the City's initial review and comment. PWH
will meet with the City as necessary to narrow the focus of the program down to a
preferred choice before moving into the next phase.
Step 3 Master Plan $5,940.00
PWH will conduct master plan exercises to pull in the key personnel for the Project,
as well as any potential shared entities, and will begin looking at site layouts and
relationships. The meeting will take the form of a design charette where as many site
diagrams as possible will be explored. At the end of the session, the group will
evaluate the preferred scheme(s) for further study. Items of work included in this
Step 3 are as follows:
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(A) Explore joint use/sharing potential to maximize budget resources;
(B) Establish a clear site circulation system that works for all users and can
accommodate future phasing. Drop-off and waiting areas, lighting, service
zones, as well as building massing and form are to be investigated; and
(C) Maximize outdoor activity and gathering space opportunities as a means to
expand the site's usage.
Step 4 Finalize Program and Master Plan $5,940.00
At this last step, PWH will make any adjustments to the program as necessary or
requested to develop the final document. PWH will update such program for spatial
adjustments as well as budget refinements. The Master Plan will be drawn up in its
final approved form. Copies will be made available to the City and staff, and the
PWH team will make a presentation to the City if requested. The goal for this last
step is to have a clear program document and master plan layout, approved by all
critical parties, that is ready to move into the Schematic Design Phase.
Unless subsequently changed by additional Supplemental Agreement hereto, Design
Consultant's total compensation for services under this Agreement shall not exceed the sum of
$23,760.00 for Basic Services, which sum shall include all deliverables but shall not include
reimbursable expenses. Payment to Design Consultant for approved reimbursable expenses
(such as reproduction of plans and specifications, plan distribution, review fees, postage, courier
services, express delivery charges, travel, and the like) shall not exceed the sum of $750.00
without prior express written approval from Owner. These amounts represent the absolute limit
of City's liability to Design Alliance hereunder unless same shall be changed by additional
Supplemental Agreement hereto.
ARTICLE II
DESIGN CONSULTANT'S SERVICES
2.01 Basic Services. Design Consultant's Basic Services consist generally of the services
described above in Article I, Section 1.02.
2.02 Additional Services. Design 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 Design Consultant. Where City Council or City Manager authorization is required, Design
Consultant shall not proceed until the appropriate action has been taken.
ARTICLE III
CITY'S RESPONSIBILITIES
3.01 Full information. City shall provide full information regarding requirements for the
Project.
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3.02 Designate representatives. City shall designate, when necessary, representatives
authorized to act in its behalf. City shall examine documents submitted by Design Consultant
and render decisions pertaining thereto promptly to avoid unreasonable delay in the orderly
progress of Design Consultant's work.
ARTICLE IV
PAYMENTS TO THE DESIGN CONSULTANT
4.01 Basic Services. Payments hereunder shall not to exceed the following:
Basic Services $ 23,760.00
Reimbursables (not to exceed) $ 750.00
Total $ 24,510.00
4.02 Deductions. No deductions shall be made from Design Consultant's compensation on
account of penalty, liquidated damages or other sums withheld from payments to Contractors.
4.03 Additions. No additions shall be made to Design Consultant's compensation based upon
Project construction claims, whether paid by City or denied.
4.04 Abandonment. If any work designed or specified by Design Consultant during any phase
or subphase is abandoned or suspended, in whole or in part, Design Consultant is to be paid for
services performed prior to receipt of written notice from City through its Director of such
abandonment or suspension.
4.05 Invoices. Design Consultant's invoices to City shall provide complete information and
documentation to substantiate Design Consultant's charges, and shall be in a form to be specified
by the Director. All payments to Design Consultant shall be made on the basis of the invoices
submitted by Design Consultant and approved by the Director. Such invoices shall conform to
the schedule of services and costs in connection therewith. All Reimbursable Expenses shall be
clearly shown. Should additional backup material be requested by the Director, Design
Consultant shall comply promptly with such request. In this regard, should the Director
determine it necessary, Design Consultant shall make all records and books relating to this
Agreement available to City for inspection and auditing purposes.
4.06 Payment of Invoices. City reserves the right to correct any error that may be discovered in
any invoice that may have been paid to Design Consultant and to adjust the same to meet the
requirements of the Agreement. Following approval of invoices, City will endeavor to pay
Design Consultant promptly, but not later than the time period required under the Texas Prompt
Payment Act; however, under no circumstances shall Design Consultant be entitled to receive
interest on payments which are late because of a good faith dispute between Design Consultant
and City or because of amounts which City has a right to withhold under this Agreement or state
law.
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4.07 Offsets. City may, at its option, offset any amounts due and payable under this Agreement
against any debt (including taxes) lawfully due to City from Design Consultant, regardless of
whether the amount due arises pursuant to the terms of this Agreement or otherwise and
regardless of whether or not the debt due to City has been reduced to judgment by a court.
4.08 Reimbursable Expenses. Reimbursable Expenses are in addition to the fees for Basic and
Additional Services and include actual expenditures made by Design Consultants, their
employees, or their consultants in the interest of the Project for the incidental expenses only as
set forth below. Such expenses must be authorized by the Director in advance. An allowance for
Reimbursable Expenses not to exceed $750.00 is established as a condition of this Contract.
When authorized in advance by City, the following shall be reimbursable: reasonable
transportation and expenses of principals and employees when traveling in connection with the
Project outside of Williamson County, Texas, essential long distance calls, fees paid for the
securing of approval of authorities having jurisdiction over the Project, postage, and reproduction
of Drawings and Specifications, excluding copies for Design Consultant's office use and the
required number of sets at each phase of the work for City's review.
ARTICLE V
DESIGN CONSULTANT'S ACCOUNTING RECORDS
5.01 Accounting Records. Records of Design Consultant's expenses pertaining to the Project,
and records of accounts between City and Design Consultant, shall be kept on a generally
recognized accounting basis and shall be available to City or its authorized representatives at
mutually convenient times.
ARTICLE VI
TERMINATION AND DEFAULT
6.01 Termination. In connection with the work outlined in this Agreement, it is agreed and fully
understood by Design Consultant that the Director 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 Design Consultant, with the understanding that immediately
upon receipt of said notice all work and labor being performed under this Agreement shall cease.
Design 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.
6.02 Default. Nothing contained in Section 6.01 above shall require City to pay for any work
which is unsatisfactory as determined by the Director or which is not submitted in compliance
with the terms of this Agreement. City shall not be required to make any payments to Design
Consultant when Design Consultant is in default under this Agreement, nor shall this Article
constitute a waiver of any right, at law and at equity, which City may have if Design Consultant
is in default, including the right to bring legal action for damages or to force specific
performance of this Agreement.
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ARTICLE VII
GENERAL, SUPPLEMENTARY AND SPECIAL CONDITIONS;
CONTRACT ADMINISTRATION
7.01 General, Supplementary and Special Conditions. City of Round Rock - Supplementary
General Conditions to AIA Document A201, "General Conditions of the Contract for
Construction," are to be used by Design Consultant without modification; however, City may,
upon prior consultation, approve of any changes that may be necessary for specific cases or
instances. Any special conditions pertaining to the Project that are approved by City will be
included under the Special Conditions portion of the Construction Documents.
7.02 Contract Administration. This Agreement shall be administered on behalf of City by its
Director of Public Works, and Design Consultant shall fully comply with any and all instructions
from the Director. Any dispute arising hereunder shall be submitted to the Director, whose
decision in the matter shall be final and binding.
ARTICLE VIII
RESPONSIBILITY FOR WORK, INDEMNIFICATION AND INSURANCE
8.01 Design Consultant's Responsibility for Work. Approval by City shall not constitute nor
be deemed a release of the responsibility and liability of Design Consultant, its employees,
subcontractors, agents and consultants for the accuracy and competency of 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 Design Consultant, its
employees, subcontractors, agents and consultants.
8.02 Indemnification (Damage Claims). Design Consultant agrees, to the fullest extent
permitted by law, to indemnify and hold City, its officers, agents and employees, harmless from
any damage, liability or cost (including reasonable attorney's fees) to the extent caused by
Design Consultant's negligent acts, errors or omissions in the performance of professional
services under this Agreement and those of his or her subconsultants or anyone for whom Design
Consultant is legally liable.
Owner agrees, to the fullest extent permitted by law, to indemnify and hold Design
Consultant, its officers, agents and employees, harmless from any damage, liability or cost
(including reasonable attorney's fees) to the extent caused by Owner's negligent acts, errors or
omissions in the performance of professional services under this Agreement and those of its
contractors, subcontractors or consultants or anyone for whom Owner is legally liable, and
arising from the Project the subject of this Agreement.
8.03 Indemnification (Patent and Copyright Claims). Design Consultant agrees to completely
defend and indemnify City, its officers, agents and employees, against a claim that any of the
Designs, Plans or Specifications prepared by Design Consultant, its employees, associates or
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subconsultants pursuant to this Agreement infringe a U.S. patent or copyright directly, indirectly
or contributorily. Design Consultant shall pay any and all resulting costs, damages and attorney's
fees fmally awarded, provided that:
(1) City promptly notifies Design Consultant in writing of the claim; and
(2) Design Consultant has sole control of the defense and all related settlement negotiations.
(a) If Design Consultant defends City against such claims, the City Attorney shall be kept
informed of settlement negotiations, and shall execute any settlement agreement reached by
Design Consultant on City's behalf.
(b) Design 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 Design
Consultant's opinion are likely to become, the subject of such a claim, City will permit
Design Consultant, at Design 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 Design Consultant's judgment, City, to the extent City is
legally able to do so, will cease using the designs, plans or specifications on written request
of Design Consultant, in which instance City has the sole option to either require Design
Consultant to perform new design work at Design Consultant's sole expense, or to terminate
this Agreement.
(c) Design 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 Design Consultant with respect to
infringement of patents and copyrights.
(7) The indemnification and defense provisions as set forth in this Section 8.03 shall not
apply to products or materials which City has required that Design Consultant include in
any of the Designs, Plans and Specifications, or which are substituted by Contractor or
any of his subcontractors during the Construction Phase of the Contract.
8.04 Insurance. Design Consultant, at Design Consultant's sole cost, shall purchase and
maintain during the term of this Agreement professional liability insurance coverage in the
minimum amount of One Million Dollars ($1,000,000.00) from a company authorized to do
insurance business in Texas and otherwise acceptable to City.
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8.05 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of
Design Consultant, Design Consultant shall require each subconsultant performing work under
this Agreement to maintain during the term of the Agreement, at the subconsultant's own
expense, the same stipulated minimum insurance required in Section 8.04 above, including the
required provisions and additional policy conditions as shown below in Section 8.06.
Design Consultant shall obtain and monitor the certificates of insurance from each
subconsultant in order to assure compliance with the insurance requirements. Design 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.
8.06 Insurance Policy Endorsements. Each insurance policy under paragraph 8.04 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
Design 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 Design 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 any nature.
8.07 Cost of Insurance. The cost of all insurance required herein to be secured and maintained
by Design Consultant shall be borne solely by Design Consultant, with certificates of insurance
evidencing such minimum coverage in force to be filed with the City. Such Certificates of
Insurance are evidenced as attached hereto and entitled "Certificates of Insurance."
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ARTICLE IX
COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES, ETC.
9.01 Compliance with Laws. Design Consultant, its consultants, agents, employees and
subcontractors shall 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 all local, State and National boards, bureaus and agencies. Design Consultant
shall further obtain all permits and licenses required in the performance of the professional
services contracted for herein.
9.02 Taxes. Design Consultant will pay all taxes, if any, required by law arising by virtue of the
services performed hereunder. City is qualified for exemption pursuant to the provisions of
Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act.
ARTICLE X
TERM
10.01 Term. Unless sooner terminated in accordance with the applicable provisions hereof, or
extended by mutual agreement approved by City's Director, the term of this Agreement shall be
from the date of execution hereof until the expiration of twelve (12) months.
10.02 Project Performance Schedule.
(1) Time of completion of the services referenced herein shall be as follows: Not later than
twelve (12) months from date of execution hereof.
Nothing recited herein shall be construed to prevent the negotiated renewal and/or extension of
this Agreement by express written agreement of the parties.
(2) Design Consultant understands that the Project Performance Schedule is of critical
importance, and agrees to undertake all necessary efforts to expedite the performance
of services required herein, so that construction of the Project will be commenced as
scheduled. In this regard, Design Consultant shall proceed with sufficient qualified
personnel and consultants necessary to fully and timely accomplish services required
under this Agreement in a professional manner.
ARTICLE XI
FINANCIAL INTEREST PROHIBITED, CONFIDENTIALITY
11.01 Financial Interest Prohibited. Design Consultant covenants and represents that Design
Consultant, its officers, employees, agents, consultants and subcontractors will have no financial
interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will
be recommended or required for the construction of the Project.
9
11.02 Confidentiality. Design Consultant's reports, evaluations, designs, drawings, data, and all
other documentation and work developed by Design Consultant hereunder shall be kept
confidential, and shall not be disclosed to any third parties without the prior written consent and
approval of City's Director.
ARTICLE XII
GENERAL PROVISIONS
12.01 Time is of the Essence. Design Consultant understands and agrees that time is of the
essence and that any failure of Design Consultant to complete the services for each phase of this
Agreement within the agreed Project Performance Schedule may constitute a material breach of
this Agreement. Design Consultant shall be responsible for its delays or for failures to use
professional efforts in accordance with the terms of this Agreement. Where damage is caused to
City due to Design Consultant's failure to perform in these circumstances, City may withhold, to
the extent of such damage, Design Consultant's payments hereunder without waiver of any of
City's additional legal rights or remedies.
12.02 Force Majeure. Neither City nor Design Consultant shall be deemed in violation of this
Agreement if it is prevented from performing any of its obligations hereunder by reasons for
which it is not responsible or circumstances beyond its control. However, notice of such
impediment or delay in performance must be timely given, and all reasonable efforts undertaken
to mitigate its effects.
12.03 Assignment. The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Design Consultant
shall not assign, sublet or transfer any interest herein without City's prior written authorization
12.04 Amendments. This Agreement, representing the entire agreement between the parties,
may only be amended or supplemented by mutual agreement of the parties hereto in writing.
12.05 Enforcement and Venue. This Agreement shall be enforceable in Round Rock,
Williamson County, Texas, and if legal action is necessary by either party with respect to the
enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in
Williamson County, Texas. This Agreement shall be governed by and construed in accordance
with the laws and court decisions of the State of Texas.
12.06 Notices. All notices and correspondence to City by Design Consultant shall be mailed or
delivered as follows:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
and to:
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Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, Texas 78664
All notices and correspondence from City to Design Consultant shall be mailed or delivered to
Design Consultant:
Don Greer, AIA
Pfluger Wiginton Hooker PLLC
5113 Southwest Parkway, Suite 260
Austin, TX 78735
IN WITNESS WHEREOF, the City of Round Rock has caused this Agreement to be
signed in its corporate name by the person duly authorized to execute the same in its behalf, and
Pfluger Wiginton Hooker PLLC, signing by and through its duly authorized representative(s),
thereby binding the parties hereto, their successors, assigns and representatives for the faithful
and full performance of the terms and provisions of this Agreement.
CITY OF ROUND ROCK
By:
Title: ,i� man ,
Date Signe . 3- lg. apt)/
FOR C TY, APPROVED AS TO FORM:
By:
Steph. L. Sheets, City Attorney
PFLUGER WIGINTON HOOKER PLLC
By:
Title:
Date Signed:
areilgestderd--
3-7-07
11
ATTEST:
eitnatiLie
Christine R. Martinez, City Secretary
CERTIFICATE OF LIABILITY INSURANCE
Date: 02/27/2007
PROFESSIONAL SERVICES
PRODUCER COMPANIES AFFORDING COVERAGE
McLaughlin Brunson Insurance Agency, LLP
9535 Forest Lane, Suite 118 A New Hampshire Insurance Company
Dallas, Texas 75243
INSURED
Pfluger Wiginton Hooker, PLLC
500 N. Central Expressway, #300
Plano, Texas 75074
B
C
D
THIS IS TO CERTIFY THAT the Insured named above is insured by the Companies listed above with respect
to the business operations hereinafter described, for the types of insurance and in accordance with the provisions
of the standard policies used by the companies, and further hereinafter described. Exceptions to the policies are
noted below.
CO TYPE OF INSURANCE POLICY EFFECTIVE EXPIRATION
LTR NUMBER DATE DATE
LIMITS
A PROFESSIONAL LIABILITY 4685212-01 09/08/2006 09/08/2007 SI.000.000 Per Claim/Aggregate
DESCRIPTION OF SPECIAL ITEMSIEXCEPTIONS
The claims made professional liability coverage is the total aggregate limit for all claims presented within the annual policy period and is subject to a deductible.
Should any of the above described policies be cancelled or changed before the expiration date thereof, the issuing company will mail
thirty (30) days written notice to the certificate holder named below.
CERTIFICATE HOLDER: City of Round Rock
221 E. Main Street
Round Rock. Texas 78664
Attn: Christine Martinez, City Secretary
SIGNATURE OF AUTHORIZED REPRESENTATIVE
Title: Agent
Revd 2110103 - Profession! Liability Certittcate.doc
DATE: March 12, 2007
SUBJECT: City Manager Approval - March 16, 2007
ITEM: Action authorizing the City Manager to execute a Professional
Services Contract for pre -design services with Pfluger Wiginton
Hooker, PPLC dba Pfluger Wiginton Hooker Architects (PWH) for the
Westside Recreation Center.
Department: Engineering and Development Services
Staff Person: Larry Madsen, Construction Manager
Justification:
This agreement is for pre -design services that include initial discussion and project kick off,
draft program and master planning (possibly working with school district) for the Westside
Recreation Center Project.
Funding:
Cost: $24,510.00
Source of funds: 2002 General Obligation Bonds
Outside Resources: N/A
Background Information: N/A
Public Comment: N/A
Blue Sheet Format
Updated 01/20/04