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R-07-01-25-9A1 - 1/25/2007RESOLUTION NO. R -07-01-25-9A1 WHEREAS, the City of Round Rock has duly advertised its Request for Qualifications to obtain services for the design and construction of the New East Entrance Gate for Dell Diamond, and WHEREAS, Chasco Constructors submitted the proposal offering the best value for the City on the basis of the City's published selection criteria and its ranking evaluations, and WHEREAS, the City Council wishes to negotiate a contract with the selected offeror, Chasco Constructors, 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 with Chasco Constructors for the design and construction of the New East Entrance Gate for Dell Diamond, if negotiations produce a mutually satisfactory contract. 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 25th day of January, 2007. , Mayor City of ound Rock, Texas CHRISTINE R. MARTINEZ, City Secr;tary 0:\wdox\RESOLUTI\R70125A1.WPD/rmc DATE: January 16, 2007 SUBJECT: City Council Meeting - January 25, 2007 ITEM: 9.A.1. Consider a resolution determining that Chasco Constructors submitted the proposal offering the best value to the City of design -build for the construction of the "New East Entrance Gate for Dell Diamond." Department: Engineering & Development Services Staff Person: Tom Word, Chief of Public Works Operations Justification: The City advertised and received one proposal on January 8, 2007 for the construction of the New East Entrance Gate for Dell Diamond. Chasco Constructors submitted a bid in the amount of $191,000. The project budget is $200,000. Funding: Cost: $191,000.00 Source of funds: Convention Center Capital Improvement Fund Outside Resources: N/A Background Information: The City Council approved a resolution authorizing the "Design Build" alternative delivery system for the New East Entrance Gate for Dell Diamond on December 21, 2006. The new entrance will improve access to east parking lot of the Dell Diamond in time for the next baseball season. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS Standard Form of Agreement Between Design-Builder/Contractor and Owner AGREEMENT made as of the (In words, indicate day, month and ye j IC) day of the month of (),0/Y114.. in the year Two Thousand Seven. BETWEEN the Owner. (Name, address and other information) City of Round Rock 221 East Main Street Round Rock, Williamson and Travis Counties, Texas, 78664 hereinafter referred to as "Owner" or "City" and the Design-Builder/Contractor. (Name, address and other information) Chasco Constructors, Ltd., L.L.P. 2801 Kiphen Road Round Rock, TX 78664 hereinafter referred to as "Chasco" or "Contractor" For the following Project: (Include detailed description of Project) Design and construction services, including all materials, labor and equipment as required to construct the "New East Entrance Gate for Dell Diamond" for the City of Round Rock, which construction shall minimally consist of a 5' x 8' ticket building with glass and drawer assembly, entry gate, concrete steps, handrails, handicapped access ramp, sidewalks, dirt work, fencing and CMU block wall with rock face. The facility is to be constructed at the Dell Diamond in Round Rock, Texas. City and Chasco agree as follows: ARTICLE 1 1HE CONTRACT DOCUMENTS The Contract Documents form the Contract for Design -Build and Construction. The Contract Documents consist of this Agreement (hereinafter referred to as the "Agreement"), Supplemental Agreement No. 1, and any attached Exhibits, General, Supplemental and other Conditions, Drawings, Specifications, Addenda issued prior to execution of the Agreement, and other documents listed in the Agreement and Modifications issued after execution of the Agreement. All of the recited documents form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated herein. Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as bidding requirements (advertisement, Invitation for Bid, Instructions to Bidders, sample forms, bids, or portions of Addenda relating to bidding requirements). The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. ARTICLE 2 THE WORK OF THIS CONTRACT Chasco shall fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. 00109772ikg R 0i7 -0/-c)5- 9A ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated herein or provision is made for the date to be fixed in a Notice to Proceed issued by Owner. Date of commencement shall be fixed in a Notice to Proceed issued by Owner. If, prior to the commencement of the Work, Owner requires time to file mortgages, mechanic's liens and other security interests, Owner's time requirement shall be as follows: Unless the date of commencement is established by a Notice to Proceed issued by Owner, Chasco shall notify Owner in writing not less than five (5) days before commencing the Work to permit the timely filing of mortgages. mechanic's liens and other security interests. In no event shall Work be commenced if Owner does not issue written approval. 3.2 The Contract Time shall be measured from the date of commencement. 3.3 Chasco shall achieve Substantial Completion of the entire Work not later than April 1, 2007 (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Contract Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work) subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any, for liquidated damages relating to failure to complete on time or for bonus payments for early completion of the Work) 3.4 If Chasco fails to achieve Substantial Completion of the Work (or any portion thereof) on or before the date(s) specified for Substantial Completion in the Agreement, Chasco shall pay to Owner, as liquidated damages, the Sum of One Hundred and No/100 Dollars ($100.00) for each calendar day that Substantial Completion is delayed after the date(s) specified for Substantial Completion. It is hereby agreed that the liquidated damages to which Owner is entitled hereunder are a reasonable forecast of just compensation for the harm that would be caused by Chasco's failure to achieve Substantial Completion of the Work (or any portion thereof) on or before the date(s) specified for Substantial Completion in the Agreement. It is agreed that the harm that would be caused by such failure, which includes loss of expected use of the Project areas, provision of alternative facilities and rescheduling of use dates, is one that is incapable or very difficult of accurate estimation. It is hereby agreed that if Substantial Completion of the Work (or any portion thereof) is not achieved on or before thirty (30) days after the date(s) specified for Substantial Completion in the Agreement, the harm that would be caused to Owner cannot be reasonably forecast because it would include business disruption to Owner in addition to loss of expected use of the Project areas, provision of alternative facilities and rescheduling of use dates. Thus. the liquidated damages set forth herein and above will cease to be assessed under the Contract Documents after thirty (30) days after the date(s) specified for Substantial Completion in the Agreement, and Owner shall thereafter rely on its remedies under the Contract Documents and at law and in equity, including without limitation, the recovery of actual damages. The date(s) specified for Substantial Completion of the Work (or any portion thereof) in the Agreement shall be subject to adjustment as provided in the Contract Documents. ARTICLE 4 CONTRACT SUM 4.1 The Owner shall pay Chasco the Contract Sum in current funds for Chasco's performance of the Contract. The Contract Sum shall be an amount not to exceed ONE HUNDRED NINETY-ONE THOUSAND AND NO/100 DOLLARS ($191,000.00), subject to additions and deductions as provided in the Contract Documents. The parties agree that said sum is the guaranteed maximum price, and is a fixed cap and a not -to -exceed sum. 4.2 The Contract Sum is based upon the alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner. (State the numbers or other identification of accepted alternates. If decisions on other alternates are to be made by the Owner subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires) None. 2 ARTICLE 5 PAYMENTS 5.1 PROGRESS PAYMENTS 5.1.1 Based upon Applications for Payment submitted to the Owner by Chasco and Certificates for Payment issued by Owner and/or Owner's lender, Owner shall make progress payments on account of the Contract Sum _to_Chasco _as provided below and elsewhere in the Contract Documents. 5.1.2 The period covered by each Application for Payment shall be one (1) calendar month ending on the last day of the month, or as follows: As stated. 5.1.3 Provided that an Application for Payment is received by Owner, and Owner issues a Certificate of Payment not later than the tenth (10th) day of a month, Owner shall make payment to Chasco not later than the tenth (10th) day of the next month. If an Application for Payment is received by Owner after the application date fixed above, payment shall be made by Owner not later than one (1) month after Owner issues a Certificate for Payment. 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by Chasco in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as Owner may require. This schedule, unless objected to by Owner, shall be used as a basis for reviewing Chasco's Applications for Payment. 5.1.5 Applications for Payment shall warrant the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. 5.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five percent (5 %). Pending final determination of cost to Owner of changes in the Work, amounts not in dispute may be included even though the Contract Sum has not yet been adjusted by Change Order, .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction, less retainage of five percent (5%). 3 Subtract the aggregate of previous payments made by Owner, and .4 Subtract amounts, if any, for which Owner has withheld or nullified a Certificate for Payment. 5.1.7 The progress payment amount determined in accordance with Subparagraph 5.1.6 shall be further modified under the following circumstances: .1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to ninety-five percent (95%) of the Contract Sum, less such amounts as Owner shall determine for incomplete Work, retainage applicable to such Work and unsettled claims; and .2 Add, if final completion of the Work is thereafter materially delayed through no fault of Chasco, any additional amounts payable in accordance herewith. 3 5.1.8 Reduction or limitation of retainage, if any, shall be as follows: of it is intended, prior to Substantial Completion of the entire Work to reduce or limit the retainage resulting from the percentages inserted in Clauses 5.1.61 and 5.1.6 2 above, and this is not explained elsewhere in the Contract Documents, insert here provisions for such reduction or limitation) None. 5.1.9 Except with Owner's prior written approval, Chasco shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 5.2 FINAL PAYMENT 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to Chasco when: .1 Chasco has fully performed the Contract except for Chasco's responsibility to correct Work, and to satisfy other requirements, if any, which extend beyond final payment; and .2 a final Certificate for Payment has been issued by Owner. 5.2.2 Owner's final payment to Chasco shall be made not later than thirty (30) days after the issuance of Owner's final Certificate for Payment. In no event shall final payment be required to be made prior to thirty (30) days after all Work on the Contract has been fully performed. Defects in the Work discovered prior to final payment shall be treated as non -conforming Work and shall be corrected by Chasco prior to final payment and not treated as warranty items. ARTICLE 6 TERMINATION OR SUSPENSION 6.1 The Contract may be terminated by Owner or Chasco as provided in the Contract Documents. 6.2 The Work may be suspended by Owner as provided in the Contract Documents. ARTICLE 7 ARBITRATION The parties hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. ARTICLE 8 MISCELLANEOUS PROVISIONS 7.1 Where reference is made in this Agreement to a provision of another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. 7.2 Undisputed final payment due and unpaid under the Contract Documents shall bear interest from the thirty-first (31st) day after the date such undisputed final payment is due at the legal rate prevailing from time to time at the place where the Project is located. (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) 7.3 Owner's representative is: (Name, address and other information) Larry Madsen Construction Manager 2008 Enterprise Round Rock, TX 78664 4 7.4 Chasco's representative is: Temple Aday, President Chasco Constructors, Ltd.. L.L.P. 2801 Kiphen Road Round Rock, TX 78664 7.5 Neither Owner's nor Chasco's representative shall be changed without ten (10) days' written notice to the other party. This Agreement is entered into as of the day and year first written above and is executed in at least three (3) original copies, of which one is to be delivered to Chasco, one to Owner's representative for use in the administration of the Contract, and one to Owner. OWNER: CITY OF y - axwell, ayor Date Signed: 01 5 -07 A 1 1'hST: Christine R. Martinez, City Secretary , APPROVED AS TO FORM: DESIGN-BUILDER/CONTRACTOR: CHASCO CONSTRUCTORS, ' ., L.L.P. ‘111111te&d, Temple Aday, Date Signed: SUPPLEMENTAL AGREEMENT NO. 1 (DESIGN SERVICES) TO STANDARD FORM OF AGREEMENT BETWEEN DESIGN-BUILDER/CONTRACTOR AND OWNER THE -STATE OF TEXAS COUNTY OF WILLIAMSON § § KNOW ALL BY 'I H>NSE PRESENTS: This document is entitled Supplemental Agreement No. 1, and it supplements Standard Form of Agreement Between Design-Builder/Contractor and Owner for the following Project: Design and construction services, including all materials, labor and equipment as required to construct the "New East Entrance Gate for Dell Diamond" for the City of Round Rock, which construction shall minimally consist of a 5' x 8' ticket building with glass and drawer assembly, entry gate, concrete steps, handrails, handicapped access ramp, sidewalks, dirt work, fencing and CMU block wall with rock face, said facility to be constructed at the Dell Diamond in Round Rock, Texas, more specifically identified and described in the accompanying Standard Form of Agreement Between Design-Builder/Contractor and Owner. •LThis Supplemental Agreement No. 1 is made and entered into as of the _ day of AL,A /. 2007, and is by and between the same parties, those being the CITY OF R r , ROCK, 1 home -rule municipal corporation of Williamson County, Texas (hereinafter referred to as "City" and/or "Owner") and CHASCO CONSTRUCTORS, LTD., L.L.P., with offices located at 2108 Kiphen Road, Round Rock, Texas 78626 (hereinafter referred to as "Chasco" and/or "Contractor"). WITNESSETH: WHEREAS, City intends to design and construct the Project described in the accompanying Standard Form of Agreement Between Design-Builder/Contractor and Owner. Chasco's services are desired under this Supplemental Agreement No. 1 for purposes as recited therein. Total compensation for Chasco's services under this Supplemental Agreement No. 1 are as recited therein. WHEREAS, City desires to contract with Chasco for provision of the therein -described services in connection with design of the Project, all as previously and hereinafter stipulated and within the limits City has budgeted or will budget therefor; and WHEREAS, Chasco has agreed to provide such professional design and construction services for the compensation delineated therein; R-©7-o�-as-9Rl NOW, THEREFORE, City and Chasco, in consideration of the terms, covenants and conditions contained in the accompanying Standard Form of Agreement Between Design- Builder/Contractor and Owner that this document supplements, and the terms, covenants, and conditions contained herein, do hereby contract as follows: ARTICLE 1 SCOPE OF SERVICES AND COMPENSATION 1.01 Scope. Chasco, as an independent contractor and professional design -build contractor in its relationship with City, shall perform all professional services and Work for the Project as set forth in the referenced documents. 1.02 Compensation. City shall compensate Chasco as follows: See Exhibit "A" attached hereto and incorporated herein by reference for all purposes, said exhibit indicating that Chasco's total compensation hereunder shall not exceed $191,000.00 including any Reimbursable Expenses. This amount represents the absolute limit of City's liability to Chasco hereunder unless same shall be changed by additional Supplemental Agreement hereto. ARTICLE 2 CHASCO'S SERVICES 2.01 Basic Services. Chasco's Basic Services consist generally of the services described below and in Standard Form of Agreement Between Design-Builder/Contractor and Owner, and any exhibits thereto, and include such other services as may be necessary to assist City in the design of the Project, within the limits City has budgeted or will budget therefor, and in compliance with the Project Facility Program which is hereby made a part of this Agreement. Chasco's design services shall include normal structural, mechanical and electrical engineering services. Chasco agrees that upon execution of this Agreement, it will submit to City within ten (10) days a list of all additional consultants it intends to utilize, not previously identified, delineating their respective tasks. All such consultants shall be subject to the approval of City through its Director of Public Works, and City reserves the right to reject any consultant. Chasco shall perform all work hereunder in a manner satisfactory and acceptable to City, represented by its Director of Public Works or his/her designee, hereinafter referred to as "Director." A Performance Schedule shall be agreed to by Chasco and Director, and Chasco agrees to use its best efforts to complete all services hereunder in accordance with such Performance Schedule. 2.02 Construction Documents and Permitting Services. Construction Documents and Permitting Services shall consist generally of the services described under that heading on Exhibit "B" attached hereto and incorporated herein by reference for all appropriate purposes. 2.03 Construction Services. Construction Services shall consist generally of the services described under that heading on Exhibit "B" attached hereto and incorporated herein by reference for all appropriate purposes. 2 2.04 Additional Services. Chasco shall perform Additional Services, only as requested in writing by City, after a not -to -exceed amount has been mutually agreed upon in writing by the Director and Chasco. Where City Council authorization is required, Chasco shall not proceed until the appropriate Resolution for such Additional Services has been adopted. The following services are not coveredunderArticle 2, whichdefinesand outlines Chasco'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. (1) Preparing Change Orders and supporting data and/or revising previously approved plans when the changes in approved Plans and Specifications are required by the City, unforeseen circumstances due to hidden or unknown conditions, or codes/ordinances or other legal requirements which may come into effect during the course of the Project. If changes are required to be made because of error, oversight, clarification, discrepancy, or budget overruns in the work of Chasco, City shall not be liable to compensate Chasco for Additional Services or expenses in such connection. (2) Providing other extraordinary professional services over and above the Contract Documents requirements, where required and requested by City, including extraordinary professional services which might result if the City decides to "fast track" the Project. ARTICLE 3 CITY'S RESPONSIBILITIES 3.01 Full information. City shall provide full information regarding Project requirements. 3.02 Designate representatives. City shall designate, when necessary, representatives authorized to act in its behalf. City shall examine documents submitted by Chasco and render decisions pertaining thereto promptly to avoid unreasonable delay in the orderly progress of Chasco's work. 3.03 Survey. City shall furnish, or direct Chasco to obtain at City's expense, a certified survey of the 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. 3.04 Tests and inspections. City shall furnish or shall pay for structural, mechanical, chemical, soil mechanics, and other laboratory tests, reports and inspections as required by law or by the Contract. 3 ARTICLE 4 PAYMENTS TO CHASCO 4.01 Basic Services. Payments hereunder shall not to exceed the following: $191,000.00 including any Reimbursable Expenses. 4.02 Deductions. No deductions shall be made from Chasco'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 Chasco's compensation based upon Project construction claims, whether paid by City or denied. 4.04 Abandonment. If any work designed or specified by Chasco during any phase or subphase is abandoned or suspended by City, in whole or in part, Chasco is to be paid for the services performed on account of it prior to receipt of written notice from City through its Director of such abandonment or suspension. 4.05 Invoices. Chasco's invoices to City shall provide complete information and documentation to substantiate Chasco's charges, and shall be in a form specified by the Director. All payments to Chasco shall be made on the basis of the invoices submitted by Chasco and approved by the Director. Such invoices shall conform to the schedule of services and costs in connection therewith. Should additional backup material be requested by the Director, Chasco shall comply promptly with such request. Should the Director determine it necessary, Chasco shall make all records and books relating to this Agreement available to City for inspection and auditing. 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 Chasco and to adjust the same to meet the requirements of the Agreement. Following approval of invoices, City will endeavor to pay Chasco promptly, but not later than the time period required under the Texas Prompt Payment Act; however, under no circumstances shall Chasco be entitled to receive interest on payments which are late because of a good faith dispute between Chasco and City or because of amounts which City has a right to withhold under this Agreement or state law. 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 Chasco, 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. ARTICLE 5 CHASCO'S ACCOUNTING RECORDS 5.01 Accounting Records. Records pertaining to the Project, and all records of accounts between City and Chasco, shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives at mutually convenient times. 4 ARTICLE 6 TERMINATION AND DEFAULT 6.01 Termination. In connection with the work outlined in this Agreement, it is agreed and fully understood by Chasco 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 thirty (30) days' written notice to Chasco, with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Chasco shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, maps, cross sections and other data, designs and work related to the Project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably organized form without restriction on future use. Should City subsequently contract with a new firm for continuation of services on the Project, Chasco shall cooperate in providing information. 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 Chasco when Chasco 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 Chasco is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. ARTICLE 7 GENERAL, SUPPLEMENTAL AND SPECIAL CONDITIONS; CONTRACT ADMINISTRATION 7.01 Contract Administration. This Agreement shall be administered on behalf of City by its Director of Public Works, and Chasco 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 8 RESPONSIBILITY FOR WORK, INDEMNIFICATION AND INSURANCE 8.01 Chasco's Responsibility for Work. Approval by City shall not constitute nor be deemed a release of the responsibility and liability of Chasco, 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 Chasco, its employees, subcontractors, agents and consultants. 8.02 Indemnification (Damage Claims). Chasco agrees to defend, indemnify and hold Ci officers, agents and employees, harmless ' againstits any and all claims, lawsuits, judgments, costs 5 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 Chasco's breach of any of the terms or provisions of this Agreement, or by any negligent act or omission of Chasco, 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 sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Chasco and City, responsibility and indemnity, if any, shall be _ apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 8.03 Indemnification (Patent and Copyright Claims). Chasco 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 Chasco, its employees, associates or subconsultants pursuant to this Agreement infringe a U.S. patent or copyright directly, indirectly or contributorily. Chasco shall pay any and all resulting costs, damages and attorney's fees finally awarded, provided that: (1) City promptly notifies Chasco in writing of the claim; and (2) Chasco has sole control of the defense and all related settlement negotiations. (a) If Chasco defends City against such claims, the City Attorney shall be kept informed of settlement negotiations, and shall execute any settlement agreement reached by Chasco on City's behalf. (b) Chasco'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 Chasco's opinion are likely to become, the subject of such a claim, City will permit Chasco, at Chasco'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 altematives is available on terms which are reasonable in Chasco'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 Chasco, in which instance City has the sole option to either require Chasco to perform new design work at Chasco's sole expense, or to terminate this Agreement. (c) Chasco 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. 6 (d) The foregoing states the entire obligation of Chasco with respect to infringement of patents and copyrights. (3) 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 Chasco include in any of the Designs, Plans and Specifications. 8.04 Insurance. Chasco, at Chasco's sole cost, shall purchase and maintain during the term of this Agreement insurance to cover construction liability in accordance with the requirements of the attached General Conditions, Article 5 entitled "Bonds and Insurance." Chasco, at Chasco's sole cost, shall purchase and maintain during the term of this Agreement professional liability insurance coverage in the amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. 8.05 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Chasco, Chasco 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 delineated insurance required in Section 8.04 above, including the required provisions and additional policy conditions as shown below in Section 8.06. As an alternative, Chasco may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Chasco's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Chasco shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Chasco 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 Chasco 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. 7 (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 Chasco. (3) - The Term "City" or "City of Round Rock" shall include all authorities, Boards, Commissions, Departments, and officers of City and the individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Chasco and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. 8.07 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Chasco shall be borne solely by Chasco, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. ARTICLE 9 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES, ETC. 9.01 Compliance with Laws. Chasco, 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. Chasco shall further obtain all permits and licenses required in the performance of the services contracted for herein. 9.02 Taxes. Chasco 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 10 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 final completion of the Project and all design, architectural, engineering, construction administration, and construction services in connection therewith, including the final three (3) year warranty inspection, and resolution of any outstanding Project -related claims or disputes. 8 10.02 Project Performance Schedule. (1) Time of completion of the services referenced herein shall be as follows: Not later than April 1, 2007. 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) Chasco understands that the Project Performance Schedule is of critical importance, and Chasco 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, Chasco shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all services required under this Agreement in a professional manner. ARTICLE 11 FINANCIAL INTEREST PROHIBITED, CONFIDENTIALITY 11.01 Financial Interest Prohibited. Chasco covenants and represents that Chasco, 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. 11.02 Confidentiality. Chasco's reports, evaluations, designs, drawings, data, other documentation and work developed by Chasco hereunder shall be kept confidential, and shall not be disclosed to any third parties without the prior written consent of City's Director. ARTICLE 12 GENERAL PROVISIONS 12.01 Time is of the Essence. Chasco understands and agrees that time is of the essence and that any failure of Chasco to complete the services for each phase of this Agreement within the agreed Project Performance Schedule may constitute a material breach of this Agreement. Chasco shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Chasco's failure to perform in these circumstances, City may withhold, to the extent of such damage, Chasco's payments hereunder without waiver of any of City's additional legal rights or remedies. 12.02 Force Majeure. Neither City nor Chasco 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. Chasco shall not assign, sublet or transfer any interest herein without City's prior written authorization 9 12.04 Amendments. This Agreement represents the entire agreement between the parties, and may only be amended or supplemented by mutual agreement of the parties 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 Chasco shall be mailed or delivered as follows: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 All notices and correspondence from Chasco as follows: Temple Aday, President Chasco Constructors, Ltd., L.L.P. Post Office Box 1057 Round Rock, TX 78680 Stephan L. Sheets, City Attorney and to: 309 East Main Street Round Rock, Texas 78664 City to Chasco shall be mailed or delivered to the IN WITNESS WHEREOF, the City of Round Rock has caused this Agreement to be signed in its corporate name by its Mayor, duly authorized to execute the same in its behalf, and Chasco Constructors, Ltd., L.L.P., 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 FOR CITY ' PROVED AS TO FORM: By: ATTEST: By: R Christine R. Martinez, City Secretary . Sheets, City Attorney 10 CHASCO CONSTRUCTORS By: ., L.L.P. !''2: _ ice/ . Teml�ay, P A zz. 7 11 TOTALS I EXHIBIT "A" FEE SCHEDULE NEW EAST ENTRANCE GATE FOR DELL DIAMOND IDESC IQTY 1UNITS} COST BASE BID FOR CITY OF R DIRTWORK 1 LS $ 10,000.00 $ 10,000.00 SITE DEMO 1 LS $ 4,000.00 $ 4,000.00 DEMO FENCE 1 LS $ 1,000.00 $ 1,000.00 CMU WALL FOOTING 1 LS $ 6,000.00 $ 6,000.00 CMU WALL W/ ROCK FACE 1 LS $ 25,000.00 $ 25,000.00 HANDICAP RAMPS 1 LS $ 3,000.00 $ 3,000.00 4" SIDEWALK 1 LS $ 15,000.00 $ 15,000.00 CONCRETE STEPS 1 LS $ 9,000.00 $ 9,000.00 ONE RAIL HANDRAIL. 1 LS $ 1,000.00 $ 1,000.00 42"HANDRAIL 1 LS $ 11,000.00' $ 11,000.00 ENTRY GATE 1 LS $ 7,500.00 $ 7,500.00 3' WALK GATE 1 LS $ 3,000.00 $ 3,000.00 PAINT 1 LS $ 6,000.00 $ 6,000.00 5' X 8' TICKET BUILDING 1 LS $ 20,000.00 $ 20,000.00 STAIR HANDRAIL 1 LS $ 5,000.00 $ 5,000.00 RESET FENCE 1 LS $ 2,000.00 $ 2,000.00 HANDICAP SWITCHBACK RAMP & FOOTING 1 LS $ 16,000.00 $ 16,000.00 6" SIDEWALK WITH 3" SAND 1 LS $ 9,000.00 $ 9,000.00 GLASS & DRAWER ASSEMBLY 1 LS $ 2,000.00 $ 2,000.00 ARCHITECTURAL & ENGINEERING FEES 1 LS $ 11,000.00 $ 11,000.00 OVERHEAD AND BOND 1 LS $ 16,000.00 $ 16,000.00 FEE 1 LS $ 8,500.00 $ 8,500.00 TOTAL FEE $ 191,000.00 EXHIBIT "B" SCOPE OF WORK Construction Documents and Permitting Chasco Constructors will prepare high quality professional drawings for document review and development of final design plans, and specifications. Chasco Constructors will include all required design information, finalized construction cost estimates, complete construction documents, all necessary engineering reviews and all required federal and state forms. Chasco Constructors will provide all information necessary to obtain all state and local permits. Construction After final documents are reviewed and approved by the City, and after Chasco Constructors has secured all permits and licenses required, Chasco Constructors will move into the construction phase. Chasco Constructors will perform all phases of construction as listed on " Exhibit A" to construct the East Entrance Gate. Chasco Constructors will provide monthly written progress reports, and will review and produce any change orders and clarification drawings as requested by the City. Following construction, Chasco Constructors will do a walk-through with the City to develop a punchlist to be completed by Chasco Constructors for project closeout. Following sign -off by the City on the final punchlist, the project is turned over by Chasco Constructors to the City. Chasco Constructors will provide a one-year written warranty on materials and workmanship.