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R-04-02-12-14D3 - 2/12/2004RESOLUTION NO. R -04-02-12-14D3 WHEREAS, the City of Round Rock desires to retain engineering services for the Hester's Crossing Channel Improvements Project, and WHEREAS, Espey Consultants, Inc. has submitted a Contract for Engineering Services to provide said services, and WHEREAS, the City Council desires to enter into said contract with Espey Consultants, Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Contract for Engineering Services with Espey Consultants, Inc. for the Hester's Crossing Channel Improvements Project, a copy of said contract being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof. were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 12th day of February, 2004. NY WE L, Mayor City of Round Rock, Texas AT EST: CHRISTINE R. MARTINEZ, City Sec Lary @PFDesk.top\::DDN.A/WORr,DOX;O:iWDOX/RESOI:L'TI/R4C212D3.WPD/sc IRrOUND ROCK, TEXAS MSSION.PROSPERIT4. CITY OF ROUND ROCK CONTRACT FOR ENGINEERING SERVICES FIRM ESPEY CONSULTANTS INC. ADDRESS: 3809 S. 2nd Street, Ste. B-300, Austin, TX 78704 ("Engineer") PROJECT: HESTERS CROSSING CHANNEL IMPROVEMENTS THE STATE OF TEXAS § COUNTY OF WILLIAMSON § THIS CONTRACT FOR ENGINEERING SERVICES ("Contract") is made and entered into on this the —day of , 2004 by and between the CITY OF ROUND ROCK, a Texas home - rule municipal corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299, (hereinafter referred to as "City"), and Engineer, and such Contract is for the purpose of contracting for professional engineering services. RECITALS: WHEREAS, V.T.C.A., Government Code §2254.002(2)(A)(vii) under Subchapter A entitled "Professional Services Procurement Act" provides for the procurement by municipalities of services of professional engineers; and WHEREAS, City and Engineer desire to contract for such professional engineering services; and WHEREAS, City and Engineer wish to document their agreement concerning the requirements and respective obligations of the parties; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable considerations, and the covenants and agreements hereinafter contained to be kept and performed by the respective parties hereto, it is agreed as follows: Engineering Services Contract File Name: hesters crossing-01-04-espey; 62719 EXHIBIT Iv a Dy" "An Rev. 01/19/04 00062288 CONTRACT DOCUMENTS The Contract Documents consist of this Contract and any exhibits attached hereto (which exhibits are hereby incorporated into and made a part of this Contract) and all Supplemental Contracts (as defined herein in Article 13) which are subsequently issued. These form the entire contract, and all are as fully a part of this Contract as if attached to this Contract or repeated herein. ARTICLE 1 CITY SERVICES City shall perform or provide services as identified in Exhibit A entitled "City Services." ARTICLE 2 ENGINEERING SERVICES Engineer shall perform Engineering Services as identified in Exhibit B entitled "Engineering Services." Engineer shall perform the Engineering Services in accordance with the Work Schedule as identified in Exhibit C entitled "Work Schedule." Such Work Schedule shall contain a complete schedule so that the Engineering Services under this Contract may be accomplished within the specified time and at the specified cost. The Work Schedule shall provide specific work sequences and definite review times by City and Engineer of all Engineering Services. Should the review times or Engineering Services take longer than shown on the Work Schedule, through no fault of Engineer, Engineer may submit a timely written request for additional time, which shall be subject to the approval of the City Manager. ARTICLE 3 CONTRACT TERM (1) Term. The Engineer is expected to complete the Engineering Services described herein in accordance with the above described Work Schedule. If Engineer does not performed the Engineering Services in accordance with the Work Schedule, then City shall have the right to terminate this Contract as set forth below in Article 20. So long as the City elects not to terminate this Contract, it shall continue from day to day until such time as the Engineering Services are completed. Any Engineering Services performed or costs incurred after the date of termination shall not be eligible for reimbursement. Engineer shall notify City in writing as soon as possible if he/she/it determines, or reasonably anticipates, that the Engineering Services will not be completed in accordance with the Work Schedule. (2) Work Schedule. Engineer acknowledges that the Work Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of Engineering Services required herein so that construction of the project will be commenced and completed as scheduled. In this regard, and subject to adjustments in the Work Schedule as provided in Article 2 herein, Engineer shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all Engineering Services required under this Contract in a professional manner. K (3) Notice to Proceed. After execution of this Contract, Engineer shall not proceed with Engineering Services until authorized in writing by City to proceed as provided in Article 7. ARTICLE 4 COMPENSATION City shall pay and Engineer agrees to accept the amount shown below as full compensation for the Engineering Services performed and to be performed under this Contract. The amount payable under this Contract, without modification of the Contract as provided herein, is the sum of eleven thousand one hundred four dollars and fortv-six cents ($ 11,104.46 ) as shown in Exhibit D. The lump sum amount payable shall be revised equitably only by written Supplemental Contract in the event of a change in Engineering Services as authorized by City. Engineer shall prepare and submit to City monthly progress reports in sufficient detail to support the progress of the Engineering Services and to support invoices requesting monthly payment. Any preferred format of City for such monthly progress reports shall be identified in Exhibit B. Satisfactory progress of Engineering Services shall be an absolute condition of payment. The fee herein referenced may be adjusted for additional Engineering Services requested and performed only if approved by written Supplemental Contract. ARTICLE 5 METHOD OF PAYMENT Payments to Engineer shall be made while Engineering Services are in progress. Engineer shall prepare and submit to City, not more frequently than once per month, a progress report as referenced in Article 4 above. Such progress report shall state the percentage of completion of Engineering Services accomplished during that billing period and to date. Simultaneous with submission of such progress report, Engineer shall prepare and submit one (1) original and one (1) copy of a certified invoice in a form acceptable to City. This submittal shall also include a progress assessment report in a form acceptable to City. Progress payments shall be made in proportion to the percentage of completion of Engineering Services identified in Exhibit D. Progress payments shall be made by City based upon Engineering Services actually provided and performed. Upon timely receipt and approval of each statement, City shall make a good faith effort to pay the amount which is due and payable within thirty (30) days. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. Engineer has the responsibility to submit proof to City, adequate and sufficient in its determination, that tasks were completed. The certified statements shall show the total amount earned to the date of submission and shall show the amount due and payable as of the date of the current statement. Final payment does not relieve Engineer of the responsibility of correcting any errors and/or omissions resulting from his/her/its negligence. ARTICLE 6 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Engineer will be made within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for services, whichever is later. Engineer may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy; however, this policy does not apply in the event: A. There is a bona fide dispute between City and Engineer concerning the supplies, materials, or equipment delivered or the services performed that causes the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Engineer and a subcontractor or between a subcontractor and its supplier concerning supplies, materials, or equipment delivered or the Engineering Services performed which causes the payment to be late; or D. The invoice is not mailed to City in strict accordance with instructions, if any, on the purchase order, or this Contract or other such contractual agreement. City shall document to Engineer the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non -disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A., Texas Government Code. ARTICLE 7 NOTICE TO PROCEED City shall issue a written authorization to proceed with Engineering Services. City shall not be responsible for actions by Engineer or any costs incurred by Engineer relating to additional Engineering Services not included in Exhibit B. ARTICLE 8 PROJECT TEAM City's Designated Representative for purposes of this Contract is as follows: Daniel Halden, P.E. City Engineer 2008 Enterprise Drive Round Rock, Texas 78664 Telephone Number (512) 218-5555 Fax Number (512) 218-5563 Email Address dhaldenaa,,round-rock.tx.us City's Designated Representative shall be authorized to act on City's behalf with respect to this Contract. City or City's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Engineer in order to avoid unreasonable delay in the orderly and sequential progress of Engineering Services. Engineer's Designated Representative for purposes of this Contract is as follows: Brian Reis, P.E. Project Manager 3809 S. 2nd St., Suite B-300 Austin, TX 78704 Telephone Number (512) 326-5659 Fax Number (512) 326-5723 Email Address breis(a),espeyconsultants.com ARTICLE 9 PROGRESS EVALUATION Engineer shall, from time to time during the progress of the Engineering Services, confer with City at City's election. Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by City, in order for City to evaluate features of the Engineering Services. At the request of City or Engineer, conferences shall be provided at Engineer's office, the offices of City, or at other locations designated by City. When requested by City, such conferences shall also include evaluation of the Engineering Services. Should City determine that the progress in Engineering Services does not satisfy the Work Schedule, then City shall review the Work Schedule with Engineer to determine corrective action required. Engineer shall promptly advise City in writing of events which have or may have a significant impact upon the progress of the Engineering Services, including but not limited to the following: (1) Problems, delays, adverse conditions which may materially affect the ability to meet the objectives of the Work Schedule, or preclude the attainment of project Engineering Services units by established time periods; and such disclosure shall be accompanied by statement of actions taken or contemplated, and City assistance needed to resolve the situation, if any; and (2) Favorable developments or events which enable meeting the Work Schedule goals sooner than anticipated. 5 ARTICLE 10 SUSPENSION Should City desire to suspend the Engineering Services, but not to terminate this Contract, then such suspension may be effected by City giving Engineer thirty (30) calendar days' verbal notification followed by written confirmation to that effect. Such thirty -day notice may be waived in writing by agreement and signature of both parties. The Engineering Services may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from City to resume the Engineering Services. Such sixty-day notice may be waived in writing by agreement and signature of both parties. If this Contract is suspended for more than thirty (30) days, Engineer shall have the option of terminating this Contract. If City suspends the Engineering Services, the contract period as determined in Article 3, and the Work Schedule, shall be extended for a time period equal to the suspension period. City assumes no liability for Engineering Services performed or costs incurred prior to the date authorized by City for Engineer to begin Engineering Services, and/or during periods when Engineering Services is suspended, and/or subsequent to the contract completion date. ARTICLE 11 ADDITIONAL ENGINEERING SERVICES If Engineer forms a reasonable opinion that any work he/she/it has been directed to perform is beyond the scope of this Contract and as such constitutes extra work, he/she/it shall promptly notify City in writing. In the event City finds that such work does constitute extra work and exceeds the maximum amount payable, City shall so advise Engineer and a written Supplemental Contract will be executed between the parties as provided in Article 13. Engineer shall not perform any proposed additional work nor incur any additional costs prior to the execution, by both parties, of a written Supplemental Contract. City shall not be responsible for actions by Engineer nor for any costs incurred by Engineer relating to additional work not directly associated with the performance of the Engineering Services authorized in this Contract or any amendments thereto. ARTICLE 12 CHANGES IN ENGINEERING SERVICES If City deems it necessary to request changes to previously satisfactorily completed Engineering Services or parts thereof which involve changes to the original Engineering Services or character of Engineering Services under this Contract, then Engineer shall make such revisions as requested and as directed by City. Such revisions shall be considered as additional Engineering Services and paid for as specified under Article 11. Engineer shall make revisions to Engineering Services authorized hereunder as are necessary to correct errors appearing therein, when required to do so by City. No additional compensation shall be due for such Engineering Services. 0 ARTICLE 13 SUPPLEMENTAL CONTRACTS The terms of this Contract may be modified by written Supplemental Contract if City determines that there has been a significant change in (1) the scope, complexity or character of the Engineering Services, or (2) the duration of the Engineering Services. Any such Supplemental Contract must be duly authorized by City Council Resolution. Engineer shall not proceed until the appropriate Resolution has been adopted. Additional compensation, if appropriate, shall be identified as provided in Article 4. It is understood and agreed by and between both parties that Engineer shall make no claim for extra work done or materials furnished until the City Council authorizes full execution of the written Supplemental Contract and authorization to proceed. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. ARTICLE 14 OWNERSHIP OF DOCUMENTS All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this Contract are the exclusive property of City and shall be furnished to City upon request. All documents prepared by Engineer and all documents furnished to Engineer by City shall be delivered to City upon completion or termination of this Contract. Engineer, at its own expense, may retain copies of such documents or any other data which it has furnished City under this Contract. ARTICLE 15 PERSONNEL, EQUIPMENT AND MATERIAL Engineer shall furnish and maintain, at its own expense, quarters for the performance of all Engineering Services, and adequate and sufficient personnel and equipment to perform the Engineering Services as required. All employees of Engineer shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Engineer who, in the opinion of City, is incompetent or whose conduct becomes detrimental to the Engineering Services shall immediately be removed from association with the project when so instructed by City. Engineer certifies that it presently has adequate qualified personnel in its employment for performance of the Engineering Services required under this Contract, or will obtain such personnel from sources other than City. Engineer may not change the Project Manager without prior written consent of City. ARTICLE 16 SUBCONTRACTING Engineer shall not assign, subcontract or transfer any portion of the Engineering Services under this Contract without prior written approval from City. All subcontracts shall include the provisions required in this Contract and shall be approved as to form, in writing, by City prior to Engineering Services being performed under the subcontract. No subcontract shall relieve Engineer of any responsibilities under this Contract. 7 ARTICLE 17 EVALUATION OF ENGINEERING SERVICES City, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the Engineering Services performed or being performed hereunder and the premises on which it is being performed. If any review or evaluation is made on the premises of Engineer or a subcontractor, then Engineer shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of City or other representatives in the performance of their duties. ARTICLE 18 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by City before any final report is issued. City's comments on Engineer's preliminary reports shall be addressed in any final report. ARTICLE 19 VIOLATION OF CONTRACT TERMS/BREACH OF CONTRACT Violation of contract terms or breach of contract by Engineer shall be grounds for termination of this Contract, and any increased costs arising from Engineer's default, breach of contract, or violation of contract terms shall be paid by Engineer. ARTICLE 20 TERMINATION This Contract may be terminated as set forth below. (1) By mutual agreement and consent, in writing, of both parties. (2) By City, by notice in writing to Engineer, as a consequence of failure by Engineer to perform the Engineering Services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other parry to fulfill its obligations as set forth herein. (4) By City, for reasons of its own and not subject to the mutual consent of Engineer, upon not less than thirty (30) days' written notice to Engineer. (5) By satisfactory completion of all Engineering Services and obligations described herein. Should City terminate this Contract as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to Engineer. In determining the value of the Engineering Services performed by Engineer prior to termination, City shall be the sole judge. Compensation for Engineering Services at termination will be based on a percentage of the Engineering Services completed at that time. Should City terminate this Contract under Subsection (4) immediately above, then the amount charged during the thirty -day notice period shall not exceed the amount charged during the preceding thirty (30) days. If Engineer defaults in the performance of this Contract or if City terminates this Contract for fault on the part of Engineer, then City shall give consideration to the actual costs incurred by Engineer in performing the Engineering Services to the date of default, the amount of Engineering Services required which was satisfactorily completed to date t, the value of the Engineering Services of default, which are usable to City, the cost to City of employing another firm to complete the Engineering Services required and the time required to do so, and other factors which affect the value to City of the Engineering Services performed at the time of default. The termination of this Contract and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of City and Engineer under this Contract, except the obligations set forth herein in Article 21 entitled "Compliance with Laws." If the termination of this Contract is due to the failure of Engineer to fulfill his/her/its contractual obligations, then City may take over the project and prosecute the Engineering Services to completion. In such case, Engineer shall be liable to City for any additional and reasonable costs incurred by City. Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurements made by Engineer in support of the Engineering Services under this Contract. ARTICLE 21 COMPLIANCE WITH LAWS (1) Compliance. Engineer shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations, and the orders and decrees of any court, or ffecting the performance of this Contract, including administrative bodies or tribunals in any manner a without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. Engineer shall furnish City with satisfactory proof of his/her/its compliance. Engineer shall further obtain all permits and licenses required in the performance of the Engineering Services contracted for herein. (2) Taxes. Engineer will pay all taxes, if any, required by law arising by virtue of the Engineering Services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. ARTICLE 22 INDEMNIFICATION Engineer shall save and hold harmless City and its officers and employees from all claims and liabilities due to activities of his/her/itself and his/her/its agents or employees, performed under this Contract, which are caused by or which result from the negligent error, omission, or negligent act of Engineer or of any person employed by Engineer or under Engineer's direction or control. z Engineer shall also save and hold City harmless from any and all expenses, including but not limited to attorneys fees which may be incurred by City in litigation or otherwise defending claims or liabilities which may be imposed on City as a result of such activities by Engineer, its agents, or employees. ARTICLE 23 ENGINEER'S RESPONSIBILITIES Engineer shall be responsible for the accuracy of his/her/its Engineering Services and shall promptly make necessary revisions or corrections to its work product resulting from errors, omissions, or negligent acts, and same shall be done without compensation. City shall determine Engineer's responsibilities for all questions arising from design errors and/or omissions. Engineer shall not be relieved of responsibility for subsequent correction of any such errors or omissions in its work product, or for clarification of any ambiguities until after the construction phase of the project has been completed. ARTICLE 24 ENGINEER'S SEAL The responsible engineer shall sign, seal and date all appropriate engineering submissions to City in accordance with the Texas Engineering Practice Act and the rules of the State Board of Registration for Professional Engineers. ARTICLE 25 NON -COLLUSION FINANCIAL INTEREST PROHIBITED (1) Non -collusion. Engineer warrants that he/she/it has not employed or retained any company or persons, other than a bona fide employee working solely for Engineer, to solicit or secure this Contract, and that he/she/it has not paid or agreed to pay any company or engineer any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City reserves and shall have the right to annul this Contract without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. (2) Financial Interest Prohibited. Engineer covenants and represents that Engineer, his/her/its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the project. ARTICLE 26 INSURANCE (1) Insurance. Engineer, at Engineer's sole cost, shall purchase and maintain during the entire term while this Contract is in effect professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise 10 acceptable to City. Engineer shall also notify City, within twenty-four (24) hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (2) Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Engineer, Engineer shall require each subconsultant performing work under this Contract to maintain during the term of this Contract, at the subconsultant's own expense, the same stipulated minimum insurance required in Article 26, Section (1) above, including the required provisions and additional policy conditions as shown below in Article 26, Section (3). Engineer shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Engineer must retain the certificates of insurance for the duration of this Contract, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. (3) Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: (a) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or reduction in limits by endorsement a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 (b) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self -Insured Retentions of whatever nature. (4) Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Engineer shall be borne solely by Engineer, with certificates of insurance evidencing such minimum coverage in force to be filed with City. Such Certificates of Insurance are evidenced as Exhibit E herein entitled "Certificates of Insurance." ARTICLE 27 COPYRIGHTS City shall have the royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any reports developed by Engineer for governmental purposes. 11 ARTICLE 28 SUCCESSORS AND ASSIGNS This Contract shall be binding upon and inure to the benefit of the parties hereto, their successors, lawful assigns, and legal representatives. Engineer may not assign, sublet or transfer any interest in this Contract, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of City. ARTICLE 29 SEVERABILITY In the event any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. ARTICLE 30 PRIOR AGREEMENTS SUPERSEDED This Contract constitutes the sole agreement of the parties hereto, and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. This Contract may only be amended or supplemented by mutual agreement of the parties hereto in writing. ARTICLE 31 ENGINEER'S ACCOUNTING RECORDS Records pertaining to the project, and records of accounts between City and Engineer, shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives at mutually convenient times. The City reserves the right to review all records it deems relevant which are related to this Contract. ARTICLE 32 NOTICES All notices to either party by the other required under this Contract shall be personally delivered or mailed to such party at the following respective addresses: City: City of Round Rock Attention: City Manager 221 East Main Street Round Rock, TX 78664 12 and to: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664 Engineer: Brian Reis, P.E. Project Manager Espey Consultants, Inc. 3809 South 2nd Street, Ste. B-300 Austin, TX 78704 ARTICLE 33 GENERAL PROVISIONS (1) Time is of the Essence. Engineer understands and agrees that time is of the essence and that any failure of Engineer to complete the Engineering Services for each phase of this Contract within the agreed Work Schedule may constitute a material breach of this Contract. Engineer shall be fully responsible for his/her/its delays or for failures to use his/her/its reasonable efforts in accordance with the terms of this Contract and the Engineer's standard of performance as defined herein. Where damage is caused to City due to Engineer's negligent failure to perform City may accordingly withhold, to the extent of such damage, Engineer's payments hereunder without waiver of any of City's additional legal rights or remedies. (2) Force Majeure. Neither City nor Engineer shall be deemed in violation of this Contract if prevented from performing any of their obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. (3) Enforcement and Venue. This Contract shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Contract shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. (4) Standard of Performance. The standard of care for all professional engineering, consulting and related services performed or furnished by Engineer and its employees under this Contract will be the care and skill ordinarily used by members of Engineer's profession practicing under the same or similar circumstances at the same time and in the same locality. Excepting Articles 25 and 34 herein, Engineer makes no warranties, express or implied, under this Contract or otherwise, in connection with the Engineering Services. 13 (5) Opinion of Probable Cost. Any opinions of probable project cost or probable construction cost provided by Engineer are made on the basis of information available to Engineer and on the basis of Engineer's experience and qualifications and represents its judgment as an experienced and qualified professional engineer. However, since Engineer has no control over the cost of labor, materials, equipment or services furnished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market conditions, Engineer does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost Engineer prepares. (6) Opinions and Determinations. Where the terms of this Contract provide for action to be based upon opinion, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE 34 SIGNATORY WARRANTY The undersigned signatory for Engineer hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Contract and that he/she has full and complete authority to enter into this Contract on behalf of the firm. The above -stated representations and warranties are made for the purpose of inducing City to enter into this Contract. IN WITNESS WHEREOF, the City of Round Rock has caused this Contract to be signed in its corporate name by its Mayor, duly authorized to execute the same on its behalf by Resolution No. 'approved by the City Council on the day of the month of , 2004, and Engineer, signing by and through its duly authorized representative(s), thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereof. CITY OF ROUND ROCK: L -In Nyle Maxwell, Mayor ATTEST: Lo Christine Martinez, City Secretary ESPEY CONSULTANTS, INC. By: aL Si nature of'Principal Printed Name: 63 f,4N & ke-lji 14 CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS "Services to be Performed by City" The scope of Services to be performed by the City is to facilitate the engineering, permitting and design of channel improvements described in Exhibit B, by administering this contract and reviewing the work performed by the engineer. The City shall: 1. provide to the engineer, without charge, copies as needed of all available maps, plans, as - built drawings and any other information relevant to the project. 2. provide "Right of Entry" (landowner permission) if necessary for the engineer or his subconsultants to access private property in order to perform the work. 3. shall meet with the engineer on a periodic basis to review the progress of the work, to answer questions from the engineer, and for the purpose of commenting on the work. 4. provide design surveys with appropriate detail for developing construction plans (e. g. elevations/contour information, locate utilities, limits of concrete, fences, etc.)and right of way / easement information. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT B "Services to be Performed by the Engineer" The project site includes an unnamed tributary to Lake Creek Tributary 1 that extends north from Hester's Crossing to Old West Drive (Attachment B-1). It is thought that as a result of the initial construction activities upstream from the site (South of Hester's Crossing) and significant rainfall events over the past 1 to 2 years, significant erosion of the natural channel bed has resulted in stream bed, and subsequently slope failures, through this stream reach. These slope failures have resulted in structural damage to properties including undermining privacy fences, parking lot surfaces and utilities. As an emergency counter-measure, the City of Round Rock has installed and backfilled 2 corrugated metal pipes in order to stabilize a segment of the failure (Figure 1). The total stream reach length is approximately 1,000 linear feet; however, while erosion has occurred throughout this reach, the most severe channel damage that currently threatens properties is limited to approximately 500 to 600 linear feet. Figure 1 Unnamed Tributary to Lake Creek Tributary 1 (looking upstream) The scope of this project includes the development of construction plans and necessary supporting calculations (e. g. floodplain analysis, velocity calculations, etc.), and coordination with the US Army Corps of Engineers for compliance with Section 404 of the Clean Water Act which regulates the discharge of dredge or fill material in waters of the United States. Espey Consultants, Inc. (EC) will solicit the support of subconsultants to provide geotechnical investigations, coordination with the USACE and soil bio -engineering as necessary to complete this project (does not include field survey or structural engineering). This project will be managed as a Fast Track project that will require the priority allocation of company resources as well as priority response from the City of Round Rock in order to be successful. Coordination with City of Round Rock — EC will coordinate with the City of Round Rock staff and attend meetings as necessary to complete this assignment. EC will provide the City with a description and request for the required field survey information for this project. The City of Round Rock will provide field survey services that include, but not limited to, all necessary right of way information, identification of utilities and ground elevations (tied to appropriate permanent bench mark), etc. Field survey information will also need to include slab elevations of adjacent structures. 2. Coordination with USACE and Notification — EC, with the support of SWCA, will coordinate the proposed improvements with the USACE for compliance with Section 404 of the Clean Water Act. At this time it is anticipated that the activity will be covered under a "nationwide" permit and will not require an "individual" permit. A nationwide permit will require approximately 45 day review / approval time from the Corps. An individual permit will require 90 to 120 days for review / approval and a significant amount of effort not anticipated or included in this scope of services. 3. Floodplain Analysis — EC will review previous floodplain and design studies (e. g. Flood Insurance Study, La Frontera development plans, etc.), and analyze the current floodplain conditions (and natural floodplain conditions if possible) along this stream reach and determine the hydraulic constraints, if any, for the proposed design. 4. Channel Design Alternative(s) — EC will quickly develop a "natural' channel design alternative to restore and stabilize the channel reach for consideration by the City of Round Rock based on a design survey provided by the City of Round Rock, geotechnical investigations provided by Holt Engineering and consultation with a soil boi-engineering expert (Robbin B Sotir & Associates, Inc.),. The design will include (but not limited to) measures to reestablish and/or stabilize the channel bed and side slopes through a series of grade control structures (check dams), toe walls (or rocks), erosion control turf mats, vegetative practices, etc. The design concept developed in this task will be presented to the USACE in support of the Section 404 permit application (nationwide). 5. Preparation of Construction Plans — Based on cost, input from the City of Round Rock and USACE, availability of materials, etc., EC will adjust the proposed design as necessary and develop construction plans of the proposed improvement. Construction plans will include appropriate general notes to contractor, erosion / sedimentation control measures, provisions for securing existing utilities (manholes, wastewater laterals, etc.), plan and profiles of the channel, necessary cross-sections, details, etc. as required for construction by the contractor. EC will coordinate with utility companies; however, no major alignment adjustments are anticipated. EC will prepare one draft set construction plans and one final set of construction plans with incorporated draft comments. 6. Preparation of Contract Documents and Specifications — EC will prepare contract documents and technical specifications using format and standard documents provided by the City of Round Rock. 7. Water Pollution Abatement Plan — EC will prepare a water pollution abatement plan (WPAP) for submittal and review by the TCEQ. EC will work with the TCEQ and modify the WPAP as necessary for compliance with the Edwards Aquifer rules and approval by the TCEQ. The scope of the project does not include: 1. bid phase services; 2. utility adjustments or relocations; 3. construction phase services; or 4. preparation of SW3P for compliance with TPDES. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT C "Work Schedule" The following schedule is the time required upon receipt of all field survey information: Analysis / Design / WPAP / Draft Construction Plans 2 months Preparation of Final Construction Plans and Contract Documents month (includes approximately 5 working day review from CORR) The "typical" time required for a nationwide permit is 45 days from the time complete documentation is submitted for review and approved by the Corps. For scheduling purposes, it is assumed that this time period would begin once the plans have been finalized. However, coordination with the US Army Corps of Engineers would begin immediately upon notice to proceed. 1.5 months Total Project Duration 4.5 months * Project duration consists of 3.0 months under previous agreement dated 7/10/03 and 1.5 months under this agreement. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT D "Fee Schedule" Total indicated consists of $33,205.54 under previous agreement dated 7/10/03 and $11,104.46 under this agreement. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT E - CERTIFICATES OF INSURANCE (Behind this page) rom: Ronda Brown, ACSR, CISR At: Texas Associates Insurors FaxID: (512)327-8337 To: Latha Kumar Date: 6232003 09:58 AM Page: 2 of 2 CERTIFICATE OF LIABILITY INSURANCE Date: 6-23-03 PROFESSIONAL SERVICES PRODUCER Texas Associates Insurors 1120 Capt of TX Hwy So Bldg 3 Ste 300, Austin, TX 78746 INSURED Espey Consultants, Inc. 3809 S. 2nd, #13-300 Austin, TX 78704 COMPANIES AFFORDING COVERAGE A CNA Continental Casualty Co. B C D THIS IS TO C'F.RTTFY THAT the Insured named a.hove 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 LTR PROFESSIONAL LIABILITY POLICY EFFECTIVE EXPIRATION LIMITS NUMBER DATE DATE N) #PRA113965755 4/16/03 to 4/16/04 $1,000,000 limit per occurrence DESCRIPTION OF SPECIAL ITEMSIEXCEPTIONS Shoul d 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 Typed Name: Gary Grissom Title: Agent 6/23/03 !'d 2/10/03 - Professional Liability Certificate.doc Hester's Crossing Channel Improvements ROUND ROCK TEXAS m DATE: February 6, 2004 SUBJECT: City Council Meeting - February 12, 2004 ITEM: *14.D.3. Consider a resolution authorizing the Mayor to execute a Contract for Engineering Services with Espey Consultants, Inc. for the Hester's Crossing Channel Improvements Project. Department: Engineering and Development Services Staff Person: Tom Word, Chief of Public Works Operations Justification: The agreement will provide necessary engineering for design of channel improvements and permitting through regulatory agencies. Provide design of improvements to restore an existing drainage channel and prevent continued erosion. Funding: Cost: $11,104.46 (balance left) Source of funds: Regional Stormwater Detention Program Outside Resources: Espey Consultants, Inc. Background Information: The City Council approved the original agreement with Espey Consultants, Inc. on July 10, 2003. The contract expired on January 1, 2004. It has become necessary to draw up a new contract in order to continue the services. There is no additional funding involved with this new contract. An open channel exists just west of Rawhide Drive between Hester's Crossing and Old West Drive that has experienced significant erosion to the point that abutting properties are being adversely affected. The agreement will provide necessary engineering for design of channel improvements and permitting through regulatory agencies. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS JrRO�UUND ROCK, TEXAS PASSION_ PROSPERITY. CITY OF ROUND ROCK CONTRACT FOR ENGINEERING SERVICES FIRM ESPEY CONSULTANTS INC. .("Engineer") ADDRESS: 3809 S. 2nd Street, Ste. B-300, Austin, TX 78704 PROJECT: HESTERS CROSSING CHANNEL IMPROVEMENTS THE STATE OF TEXAS § COUNTY OF WILLIAMSON § THIS CONT CT FOR ENGINEERING SERVICES ("Contract") is made and entered into on this the 2 day of &Ly1,la 2004 by and between the CITY OF ROUND ROCK, a Texas home - rule municipal corporation, who e offices are located at 221 East Main Street, Round Rock, Texas 78664-5299, (hereinafter referred to as "City"), and Engineer, and such Contract is for the purpose of contracting for professional engineering services. RECITALS: WHEREAS, V.T.C.A., Government Code §2254.002(2)(A)(vii) under Subchapter A entitled "Professional Services Procurement Act" provides for the procurement by municipalities of services of professional engineers; and WHEREAS, City and Engineer desire to contract for such professional engineering services; and WHEREAS, City and Engineer wish to document their agreement concerning the requirements and respective obligations of the parties; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable considerations, and the covenants and agreements hereinafter contained to be kept and performed by the respective parties hereto, it is agreed as follows: /2-04-02-« - wb3 Engineering Services Contract Rev. 01/19/04 File Name: hesters crossing-01-04-espey; 62719 00062288 CONTRACT DOCUMENTS The Contract Documents consist of this Contract and any exhibits attached hereto (which exhibits are hereby incorporated into and made a part of this Contract) and all Supplemental Contracts (as defined herein in Article 13) which are subsequently issued. These form the entire contract, and all are as fully a part of this Contract as if attached to this Contract or repeated herein. ARTICLE 1 CITY SERVICES City shall perform or provide services as identified in Exhibit A entitled "City Services." ARTICLE 2 ENGINEERING SERVICES Engineer shall perform Engineering Services as identified in Exhibit B entitled "Engineering Services." Engineer shall perform the Engineering Services in accordance with the Work Schedule as identified in Exhibit C entitled "Work Schedule." Such Work Schedule shall contain a complete schedule so that the Engineering Services under this Contract may be accomplished within the specified time and at the specified cost. The Work Schedule shall provide specific work sequences and definite review times by City and Engineer of all Engineering Services. Should the review times or Engineering Services take longer than shown on the Work Schedule, through no fault of Engineer, Engineer may submit a timely written request for additional time, which shall be subject to the approval of the City Manager. ARTICLE 3 CONTRACT TERM (1) Term. The Engineer is expected to complete the Engineering Services described herein in accordance with the above described Work Schedule. If Engineer does not performed the Engineering Services in accordance with the Work Schedule, then City shall have the right to terminate this Contract as set forth below in Article 20. So long as the City elects not to terminate this Contract, it shall continue from day to day until such time as the Engineering Services are completed. Any Engineering Services performed or costs incurred after the date of termination shall not be eligible for reimbursement. Engineer shall notify City in writing as soon as possible if he/she/it determines, or reasonably anticipates, that the Engineering Services will not be completed in accordance with the Work Schedule. (2) Work Schedule. Engineer acknowledges that the Work Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of Engineering Services required herein so that construction of the project will be commenced and completed as scheduled. In this regard, and subject to adjustments in the Work Schedule as provided in Article 2 herein, Engineer shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all Engineering Services required under this Contract in a professional manner. 2 (3) Notice to Proceed. After execution of this Contract, Engineer shall not proceed with Engineering Services until authorized in writing by City to proceed as provided in Article 7. ARTICLE 4 COMPENSATION City shall pay and Engineer agrees to accept the amount shown below as full compensation for the Engineering Services performed and to be performed under this Contract. The amount payable under this Contract, without modification of the Contract as provided herein, is the sum of eleven thousand one hundred four dollars and fortv-six cents ($ 11,104.46 ) as shown in Exhibit D. The lump sum amount payable shall be revised equitably only by written Supplemental Contract in the event of a change in Engineering Services as authorized by City. Engineer shall prepare and submit to City monthly progress reports in sufficient detail to support the progress of the Engineering Services and to support invoices requesting monthly payment. Any preferred format of City for such monthly progress reports shall be identified in Exhibit B. Satisfactory progress of Engineering Services shall be an absolute condition of payment. The fee herein referenced may be adjusted for additional Engineering Services requested and performed only if approved by written Supplemental Contract. ARTICLE 5 METHOD OF PAYMENT Payments to Engineer shall be made while Engineering Services are in progress. Engineer shall prepare and submit to City, not more frequently than once per month, a progress report as referenced in Article 4 above. Such progress report shall state the percentage of completion of Engineering Services accomplished during that billing period and to date. Simultaneous with submission of such progress report, Engineer shall prepare and submit one (1) original and one (1) copy of a certified invoice in a form acceptable to City. This submittal shall also include a progress assessment report in a form acceptable to City. Progress payments shall be made in proportion to the percentage of completion of Engineering Services identified in Exhibit D. Progress payments shall be made by City based upon Engineering Services actually provided and performed. Upon timely receipt and approval of each statement, City shall make a good faith effort to pay the amount which is due and payable within thirty (30) days. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. Engineer has the responsibility to submit proof to City, adequate and sufficient in its determination, that tasks were completed. The certified statements shall show the total amount earned to the date of submission and shall show the amount due and payable as of the date of the current statement. Final payment does not relieve Engineer of the responsibility of correcting any errors and/or omissions resulting from his/her/its negligence. ARTICLE 6 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Engineer will be made within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for services, whichever is later. Engineer may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy; however, this policy does not apply in the event: A. There is a bona fide dispute between City and Engineer concerning the supplies, materials, or equipment delivered or the services performed that causes the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Engineer and a subcontractor or between a subcontractor and its supplier concerning supplies, materials, or equipment delivered or the Engineering Services performed which causes the payment to be late; or D. The invoice is not mailed to City in strict accordance with instructions, if any, on the purchase order, or this Contract or other such contractual agreement. City shall document to Engineer the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non -disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A., Texas Government Code. ARTICLE 7 NOTICE TO PROCEED City shall issue a written authorization to proceed with Engineering Services. City shall not be responsible for actions by Engineer or any costs incurred by Engineer relating to additional Engineering Services not included in Exhibit B. ARTICLE 8 PROJECT TEAM City's Designated Representative for purposes of this Contract is as follows: Daniel Halden, P.E. City Engineer 2008 Enterprise Drive Round Rock, Texas 78664 Telephone Number (512) 218-5555 Fax Number (512) 218-5563 Email Address dhalden(d�round-rock.tx.us 4 City's Designated Representative shall be authorized to act on City's behalf with respect to this Contract. City or City's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Engineer in order to avoid unreasonable delay in the orderly and sequential progress of Engineering Services. Engineer's Designated Representative for purposes of this Contract is as follows: Brian Reis, P.E. Project Manager 3809 S. 2nd St., Suite B-300 Austin, TX 78704 Telephone Number (512) 326-5659 Fax Number (512) 326-5723 Email Address breis(a),espeyconsultants.com ARTICLE 9 PROGRESS EVALUATION Engineer shall, from time to time during the progress of the Engineering Services, confer with City at City's election. Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by City, in order for City to evaluate features of the Engineering Services. At the request of City or Engineer, conferences shall be provided at Engineer's office, the offices of City, or at other locations designated by City. When requested by City, such conferences shall also include evaluation of the Engineering Services. Should City determine that the progress in Engineering Services does not satisfy the Work Schedule, then City shall review the Work Schedule with Engineer to determine corrective action required. Engineer shall promptly advise City in writing of events which have or may have a significant impact upon the progress of the Engineering Services, including but not limited to the following: (1) Problems, delays, adverse conditions which may materially affect the ability to meet the objectives of the Work Schedule, or preclude the attainment of project Engineering Services units by established time periods; and such disclosure shall be accompanied by statement of actions taken or contemplated, and City assistance needed to resolve the situation, if any; and (2) Favorable developments or events which enable meeting the Work Schedule goals sooner than anticipated. 5 ARTICLE 10 SUSPENSION Should City desire to suspend the Engineering Services, but not to terminate this Contract, then such suspension may be effected by City giving Engineer thirty (30) calendar days' verbal notification followed by written confirmation to that effect. Such thirty -day notice may be waived in writing by agreement and signature of both parties. The Engineering Services may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from City to resume the Engineering Services. Such sixty-day notice may be waived in writing by agreement and signature of both parties. If this Contract is suspended for more than thirty (30) days, Engineer shall have the option of terminating this Contract. If City suspends the Engineering Services, the contract period as determined in Article 3, and the Work Schedule, shall be extended for a time period equal to the suspension period. City assumes no liability for Engineering Services performed or costs incurred prior to the date authorized by City for Engineer to begin Engineering Services, and/or during periods when Engineering Services is suspended, and/or subsequent to the contract completion date. ARTICLE 11 ADDITIONAL ENGINEERING SERVICES If Engineer forms a reasonable opinion that any work he/she/it has been directed to perform is beyond the scope of this Contract and as such constitutes extra work, he/she/it shall promptly notify City in writing. In the event City finds that such work does constitute extra work and exceeds the maximum amount payable, City shall so advise Engineer and a written Supplemental Contract will be executed between the parties as provided in Article 13. Engineer shall not perform any proposed additional work nor incur any additional costs prior to the execution, by both parties, of a written Supplemental Contract. City shall not be responsible for actions by Engineer nor for any costs incurred by Engineer relating to additional work not directly associated with the performance of the Engineering Services authorized in this Contract or any amendments thereto. ARTICLE 12 CHANGES IN ENGINEERING SERVICES If City deems it necessary to request changes to previously satisfactorily completed Engineering Services or parts thereof which involve changes to the original Engineering Services or character of Engineering Services under this Contract, then Engineer shall make such revisions as requested and as directed by City. Such revisions shall be considered as additional Engineering Services and paid for as specified under Article 11. Engineer shall make revisions to Engineering Services authorized hereunder as are necessary to correct errors appearing therein, when required to do so by City. No additional compensation shall be due for such Engineering Services. 0 ARTICLE 13 SUPPLEMENTAL CONTRACTS The terms of this Contract may be modified by written Supplemental Contract if City determines that there has been a significant change in (1) the scope, complexity or character of the Engineering Services, or (2) the duration of the Engineering Services. Any such Supplemental Contract must be duly authorized by City Council Resolution. Engineer shall not proceed until the appropriate Resolution has been adopted. Additional compensation, if appropriate, shall be identified as provided in Article 4. It is understood and agreed by and between both parties that Engineer shall make no claim for extra work done or materials furnished until the City Council authorizes full execution of the written Supplemental Contract and authorization to proceed. City reserves the right to withhold payment pending verification of satisfactory Engineering Services performed. ARTICLE 14 OWNERSHIP OF DOCUMENTS All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this Contract are the exclusive property of City and shall be furnished to City upon request. All documents prepared by Engineer and all documents furnished to Engineer by City shall be delivered to City upon completion or termination of this Contract. Engineer, at its own expense, may retain copies of such documents or any other data which it has furnished City under this Contract. ARTICLE 15 PERSONNEL, EQUIPMENT AND MATERIAL Engineer shall furnish and maintain, at its own expense, quarters for the performance of all Engineering Services, and adequate and sufficient personnel and equipment to perform the Engineering Services as required. All employees of Engineer shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Engineer who, in the opinion of City, is incompetent or whose conduct becomes detrimental to the Engineering Services shall immediately be removed from association with the project when so instructed by City. Engineer certifies that it presently has adequate qualified personnel in its employment for performance of the Engineering Services required under this Contract, or will obtain such personnel from sources other than City. Engineer may not change the Project Manager without prior written consent of City. ARTICLE 16 SUBCONTRACTING Engineer shall not assign, subcontract or transfer any portion of the Engineering Services under this Contract without prior written approval from City. All subcontracts shall include the provisions required in this Contract and shall be approved as to form, in writing, by City prior to Engineering Services being performed under the subcontract. No subcontract shall relieve Engineer of any responsibilities under this Contract. 7 ARTICLE 17 EVALUATION OF ENGINEERING SERVICES City, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the Engineering Services performed or being performed hereunder and the premises on which it is being performed. If any review or evaluation is made on the premises of Engineer or a subcontractor, then Engineer shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of City or other representatives in the performance of their duties. ARTICLE 18 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by City before any final report is issued. City's comments on Engineer's preliminary reports shall be addressed in any final report. ARTICLE 19 VIOLATION OF CONTRACT TERMSIBREACH OF CONTRACT Violation of contract terms or breach of contract by Engineer shall be grounds for termination of this Contract, and any increased costs arising from Engineer's default, breach of contract, or violation of contract terms shall be paid by Engineer. ARTICLE 20 TERMINATION This Contract may be terminated as set forth below. (1) By mutual agreement and consent, in writing, of both parties. (2) By City, by notice in writing to Engineer, as a consequence of failure by Engineer to perform the Engineering Services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (4) By City, for reasons of its own and not subject to the mutual consent of Engineer, upon not less than thirty (30) days' written notice to Engineer. (5) By satisfactory completion of all Engineering Services and obligations described herein. Should City terminate this Contract as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to Engineer. In determining the value of the Engineering Services performed by Engineer prior to termination, City shall be the sole judge. Compensation for Engineering Services at termination will be based on a percentage of the Engineering Services completed at that time. Should City terminate this Contract under Subsection (4) immediately above, then the amount charged during the thirty -day notice period shall not exceed the amount charged during the preceding thirty (30) days. If Engineer defaults in the performance of this Contract or if City terminates this Contract for fault on the part of Engineer, then City shall give consideration to the actual costs incurred by Engineer in performing the Engineering Services to the date of default, the amount of Engineering Services required which was satisfactorily completed to date of default, the value of the Engineering Services which are usable to City, the cost to City of employing another firm to complete the Engineering Services required and the time required to do so, and other factors which affect the value to City of the Engineering Services performed at the time of default. The termination of this Contract and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of City and Engineer under this Contract, except the obligations set forth herein in Article 21 entitled "Compliance with Laws." If the termination of this Contract is due to the failure of Engineer to fulfill his/her/its contractual obligations, then City may take over the project and prosecute the Engineering Services to completion. In such case, Engineer shall be liable to City for any additional and reasonable costs incurred by City. Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurements made by Engineer in support of the Engineering Services under this Contract. ARTICLE 21 COMPLIANCE WITH LAWS (1) Compliance. Engineer shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations, and the orders and decrees of any court, or administrative bodies or tribunals in any manner affecting the performance of this Contract, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. Engineer shall furnish City with satisfactory proof of his/her/its compliance. Engineer shall further obtain all permits and licenses required in the performance of the Engineering Services contracted for herein. (2) Taxes. Engineer will pay all taxes, if any, required by law arising by virtue of the Engineering Services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. ARTICLE 22 INDEMNIFICATION Engineer shall save and hold harmless City and its officers and employees from all claims and liabilities due to activities of his/her/itself and his/her/its agents or employees, performed under this Contract, which are caused by or which result from the negligent error, omission, or negligent act of Engineer or of any person employed by Engineer or under Engineer's direction or control. LJ Engineer shall also save and hold City harmless from any and all expenses, including but not limited to attorneys fees which may be incurred by City in litigation or otherwise defending claims or liabilities which may be imposed on City as a result of such activities by Engineer, its agents, or employees. ARTICLE 23 ENGINEER'S RESPONSIBILITIES Engineer shall be responsible for the accuracy of his/her/its Engineering Services and shall promptly make necessary revisions or corrections to its work product resulting from errors, omissions, or negligent acts, and same shall be done without compensation. City shall determine Engineer's responsibilities for all questions arising from design errors and/or omissions. Engineer shall not be relieved of responsibility for subsequent correction of any such errors or omissions in its work product, or for clarification of any ambiguities until after the construction phase of the project has been completed. ARTICLE 24 ENGINEER'S SEAL The responsible engineer shall sign, seal and date all appropriate engineering submissions to City in accordance with the Texas Engineering Practice Act and the rules of the State Board of Registration for Professional Engineers. ARTICLE 25 NON -COLLUSION, FINANCIAL INTEREST PROHIBITED (1) Non -collusion. Engineer warrants that he/she/it has not employed or retained any company or persons, other than a bona fide employee working solely for Engineer, to solicit or secure this Contract, and that he/she/it has not paid or agreed to pay any company or engineer any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City reserves and shall have the right to annul this Contract without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. (2) Financial Interest Prohibited. Engineer covenants and represents that Engineer, his/her/its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the project. ARTICLE 26 INSURANCE (1) Insurance. Engineer, at Engineer's sole cost, shall purchase and maintain during the entire term while this Contract is in effect professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise 10 acceptable to City. Engineer shall also notify City, within twenty-four (24) hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (2) Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Engineer, Engineer shall require each subconsultant performing work under this Contract to maintain during the term of this Contract, at the subconsultant's own expense, the same stipulated minimum insurance required in Article 26, Section (1) above, including the required provisions and additional policy conditions as shown below in Article 26, Section (3). Engineer shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Engineer must retain the certificates of insurance for the duration of this Contract, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. (3) Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: (a) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or reduction in limits by endorsement a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 (b) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self -Insured Retentions of whatever nature. (4) Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Engineer shall be borne solely by Engineer, with certificates of insurance evidencing such minimum coverage in force to be filed with City. Such Certificates of Insurance are evidenced as Exhibit E herein entitled "Certificates of Insurance." ARTICLE 27 COPYRIGHTS City shall have the royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any reports developed by Engineer for governmental purposes. 11 ARTICLE 28 SUCCESSORS AND ASSIGNS This Contract shall be binding upon and inure to the benefit of the parties hereto, their successors, lawful assigns, and legal representatives. Engineer may not assign, sublet or transfer any interest in this Contract, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of City. ARTICLE 29 SEVERABILITY In the event any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. ARTICLE 30 PRIOR AGREEMENTS SUPERSEDED This Contract constitutes the sole agreement of the parties hereto, and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. This Contract may only be amended or supplemented by mutual agreement of the parties hereto in writing. ARTICLE 31 ENGINEER'S ACCOUNTING RECORDS Records pertaining to the project, and records of accounts between City and Engineer, shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives at mutually convenient times. The City reserves the right to review all records it deems relevant which are related to this Contract. ARTICLE 32 NOTICES All notices to either party by the other required under this Contract shall be personally delivered or mailed to such party at the following respective addresses: City: City of Round Rock Attention: City Manager 221 East Main Street Round Rock, TX 78664 12 and to: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664 Engineer: Brian Reis, P.E. Project Manager Espey Consultants, Inc. 3809 South 2nd Street, Ste. B-300 Austin, TX 78704 ARTICLE 33 GENERAL PROVISIONS (1) Time is of the Essence. Engineer understands and agrees that time is of the essence and that any failure of Engineer to complete the Engineering Services for each phase of this Contract within the agreed Work Schedule may constitute a material breach of this Contract. Engineer shall be fully responsible for his/her/its delays or for failures to use his/her/its reasonable efforts in accordance with the terms of this Contract and the Engineer's standard of performance as defined herein. Where damage is caused to City due to Engineer's negligent failure to perform City may accordingly withhold, to the extent of such damage, Engineer's payments hereunder without waiver of any of City's additional legal rights or remedies. (2) Force Majeure. Neither City nor Engineer shall be deemed in violation of this Contract if prevented from performing any of their obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. (3) Enforcement and Venue. This Contract shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Contract shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. (4) Standard of Performance. The standard of care for all professional engineering, consulting and related services performed or furnished by Engineer and its employees under this Contract will be the care and skill ordinarily used by members of Engineer's profession practicing under the same or similar circumstances at the same time and in the same locality. Excepting Articles 25 and 34 herein, Engineer makes no warranties, express or implied, under this Contract or otherwise, in connection with the Engineering Services. 13 (5) Opinion of Probable Cost. Any opinions of probable project cost or probable construction cost provided by Engineer are made on the basis of information available to Engineer and on the basis of Engineer's experience and qualifications and represents its judgment as an experienced and qualified professional engineer. However, since Engineer has no control over the cost of labor, materials, equipment or services furnished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market conditions, Engineer does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost Engineer prepares. (6) Opinions and Determinations. Where the terms of this Contract provide for action to be based upon opinion, judgment, approval, review, or determination of either party hereto, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE 34 SIGNATORY WARRANTY The undersigned signatory for Engineer hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Contract and that he/she has full and complete authority to enter into this Contract on behalf of the firm. The above -stated representations and warranties are made for the purpose of inducing City to enter into this Contract. IN WITNESS WHEREOF, the City of Round Rock has caused this Contract to be signed in its corporate name by its Mayor, duly authorized to execute the same on its behalf by Resolution No. )?,04 -02 -Jot- 114 D3, approved by the City Council on the # 2 day of the month of 44WA664 , 2004, and Engineer, signing by and through its duly authorized representative(s), thereby bindink the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereof. CITY OF RO-JU,ND BOC By: Nyle 1, r ATTEST: By: ( lu� n�w;b� LIA Christine Martinez, City Secretary ESPEY CONSULTANTS, INC. By:12 4111 Sig ature of ncipal Printed Name: AkMti K IZE/S 14 CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT A "Services to be Performed by City" The scope of Services to be performed by the City is to facilitate the engineering, permitting and design of channel improvements described in Exhibit B, by administering this contract and reviewing the work performed by the engineer. The City shall: I. provide to the engineer, without charge, copies as needed of all available maps, plans, as - built drawings and any other information relevant to the project. 2. provide "Right of Entry" (landowner permission) if necessary for the engineer or his subconsultants to access private property in order to perform the work. 3. shall meet with the engineer on a periodic basis to review the progress of the work, to answer questions from the engineer, and for the purpose of commenting on the work. 4. provide design surveys with appropriate detail for developing construction plans (e. g. elevations/contour information, locate utilities, limits of concrete, fences, etc.)and right of way / easement information. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT B "Services to be Performed by the Engineer" The project site includes an unnamed tributary to Lake Creek Tributary 1 that extends north from Hester's Crossing to Old West Drive (Attachment B-1). It is thought that as a result of the initial construction activities upstream from the site (South of Hester's Crossing) and significant rainfall events over the past 1 to 2 years, significant erosion of the natural channel bed has resulted in stream bed, and subsequently slope failures, through this stream reach. These slope failures have resulted in structural damage to properties including undermining privacy fences, parking lot surfaces and utilities. As an emergency counter-measure, the City of Round Rock has installed and backfilled 2 corrugated metal pipes in order to stabilize a segment of the failure (Figure 1). The total stream reach length is approximately 1,000 linear feet; however, while erosion has occurred throughout this reach, the most severe channel damage that currently threatens properties is limited to approximately 500 to 600 linear feet. Figure 1 Unnamed Tributary to Lake Creek Tributary 1 (looking upstream) The scope of this project includes the development of construction plans and necessary supporting calculations (e. g. floodplain analysis, velocity calculations, etc.), and coordination with the US Army Corps of Engineers for compliance with Section 404 of the Clean Water Act which regulates the discharge of dredge or fill material in waters of the United States. Espey Consultants, Inc. (EC) will solicit the support of subconsultants to provide geotechnical investigations, coordination with the USACE and soil bio -engineering as necessary to complete this project (does not include field survey or structural engineering). This project will be managed as a Fast Track project that will require the priority allocation of company resources as well as priority response from the City of Round Rock in order to be successful. L Coordination with City of Round Rock — EC will coordinate with the City of Round Rock staff and attend meetings as necessary to complete this assignment. EC will provide the City with a description and request for the required field survey information for this project. The City of Round Rock will provide field survey services that include, but not limited to, all necessary right of way information, identification of utilities and ground elevations (tied to appropriate permanent bench mark), etc. Field survey information will also need to include slab elevations of adjacent structures. 2. Coordination with USACE and Notification — EC, with the support of SWCA, will coordinate the proposed improvements with the USACE for compliance with Section 404 of the Clean Water Act. At this time it is anticipated that the activity will be covered under a "nationwide" permit and will not require an "individual" permit. A nationwide permit will require approximately 45 day review / approval time from the Corps. An individual permit will require 90 to 120 days for review / approval and a significant amount of effort not anticipated or included in this scope of services. 3. Floodplain Analysis — EC will review previous floodplain and design studies (e. g. Flood Insurance Study, La Frontera development plans, etc.), and analyze the current floodplain conditions (and natural floodplain conditions if possible) along this stream reach and determine the hydraulic constraints, if any, for the proposed design. 4. Channel Design Alternative(s) — EC will quickly develop a "natural" channel design alternative to restore and stabilize the channel reach for consideration by the City of Round Rock based on a design survey provided by the City of Round Rock, geotechnical investigations provided by Holt Engineering and consultation with a soil boi-engineering expert (Robbin B Sotir & Associates, Inc.),. The design will include (but not limited to) measures to reestablish and/or stabilize the channel bed and side slopes through a series of grade control structures (check dams), toe walls (or rocks), erosion control turf mats, vegetative practices, etc. The design concept developed in this task will be presented to the USACE in support of the Section 404 permit application (nationwide). 5. Preparation of Construction Plans — Based on cost, input from the City of Round Rock and USAGE, availability of materials, etc., EC will adjust the proposed design as necessary and develop construction plans of the proposed improvement. Construction plans will include appropriate general notes to contractor, erosion / sedimentation control measures, provisions for securing existing utilities (manholes, wastewater laterals, etc.), plan and profiles of the channel, necessary cross-sections, details, etc. as required for construction by the contractor. EC will coordinate with utility companies; however, no major alignment adjustments are anticipated. EC will prepare one draft set construction plans and one final set of construction plans with incorporated draft comments. 6. Preparation of Contract Documents and Specifications — EC will prepare contract documents and technical specifications using format and standard documents provided by the City of Round Rock. 7. Water Pollution Abatement Plan — EC will prepare a water pollution abatement plan (WPAP) for submittal and review by the TCEQ. EC will work with the TCEQ and modify the WPAP as necessary for compliance with the Edwards Aquifer rules and approval by the TCEQ. The scope of the project does not include: 1. bid phase services; 2. utility adjustments or relocations; 3. construction phase services; or 4. preparation of SW3P for compliance with TPDES. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT C "Work Schedule" The following schedule is the time required upon receipt of all field survey information: Analysis / Design / WPAP / Draft Construction Plans 2 months Preparation of Final Construction Plans and Contract Documents month (includes approximately 5 working day review from CORR) The "typical" time required for a nationwide permit is 45 days from the time complete documentation is submitted for review and approved by the Corps. For scheduling purposes, it is assumed that this time period would begin once the plans have been finalized. However, coordination with the US Army Corps of Engineers would begin immediately upon notice to proceed. months 1.5 Total Project Duration 4.5 months * * Project duration consists of 3.0 months under previous agreement dated 7/10/03 and 1.5 months under this agreement. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT D "Fee Schedule" Description 1 Coordination with City of Round Rock 2 Coordination with USACE Man -Hour Estimate by Labor Classification Engineering Principal Proj. Man. Staff Technician 8 8 4 4 2 Clerical Time (hrs) Subtotals Cost ($) 16 $ 1,520 3 Floodplain Analysis l 8 16 4 10 $ 860 4 Channel Design Alternative(s) 1 24 32 12 29 $ 2,420 5 Preparation of Construction Plans 40 120 40 69 $ 5,860 6 Preparation of Contract Documents 20 16 200 $ 15,200 7 Water Pollution Abatement Plan 4 32 8 24 60 $ 4,480 subtotals: 2 108 228 66 24 44 384 $ $ 3,120 33,460 approximate billing rate: $ 140 $ 120 $ 70 $ 50 $ 40 subtotal by labor classification: $ 280 $ 12,960 $ 15,960 $ 3,300 $ 960 mileage: $ 200 courier: $ 50 reproduction: $ 500 subconsultant services (geotechnical, environmental (SWCA)) $ 10,100 TOTAL $ * 44,310 * Total indicated consists of $33,205.54 under previous agreement dated 7/10/03 and $11,104.46 under this agreement. CITY OF ROUND ROCK AGREEMENT FOR ENGINEERING SERVICES WITH Espey Consultants, Inc. HESTERS CROSSING CHANNEL IMPROVEMENTS EXHIBIT E - CERTIFICATES OF INSURANCE (Behind this page) ori: Ronda Brown, ACSR, CISR At: Texas Associates Insurors FaxID: (512)327-8337 To: Latha Kumar Date: 623/2003 09:58 AM Page: 2 of 2 CERTIFICATE OF LIABILITY INSURANCE Date: 6-23-03 PROFESSIONAL SERVICES PRODUCER Texas Associates Insurors 1120 Capt of TX Hwy So Bldg 3 Ste 300, Austin, TX 78746 INSURED Espey Consultants, Inc. 3809 S. 2nd, 98-300 Austin, TX 78704 COMPANIES AFFORDING COVERAGE A CNA Continental Casualty Co. 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 LIMITS LTR NUMBER DATE DATE PROFESSIONAL LIABlUTY #PRA113965755 4/16/03 to 4116104 $1,000,000 limit per occurrence DESCRIPTION OF SPECIAL ITEMS/EXCEPTIONS Shoul d 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 attri: Christine Martinez, City Secretary !'d 2/10/03 - Professional Liability Certificate.doc SIGNATURE OF AUTHORIZED REPRESENTATIVE Typed Name: Gary Grissom Title: Agent 6/23/03 06/23/2003 MON 08:54 [T%/R% NO 93091 Z002