R-05-07-14-11C1 - 7/14/2005 RESOLUTION NO. R-05-07-14-11C1
WHEREAS, the City of Round Rock desires to retain professional
consulting services regarding the City' s benefit programs, and
WHEREAS, Holmes Murphy & Associates has submitted an Agreement
for Provision of Employee Benefit Consulting Services ("Agreement") to
provide said services, and
WHEREAS, the City Council desires to enter into said Agreement
with Holmes Murphy & Associates, 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 an Agreement for Provision of Employee Benefit
Consulting Services with Holmes Murphy & Associates regarding the
City' s benefit programs, a copy of said Agreement 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 14th day of July, 2 5 .
Cit of Round Rock, Texas
A.7-
1 ST: IQN me&�, mAvop- P20--rc- r l
CHRISTINE R. MARTINEZ, City Sec tart'
@PFDeSktOp\:-UDMA/WORLDOX/O:/WDOX/RESOI,UTI/R50714C1.WPD/SC
CITY OF ROUND ROCK
AGREEMENT FOR PROVISION OF
EMPLOYEE BENEFIT CONSULTING SERVICES
WITH HOLMES MURPHY & ASSOCIATES
THIS AGREEMENT to provide Employee Benefit Consulting Services (hereinafter
referred to as the "Agreement") is made and entered into on this the day of the month of
, 2005 by and between the CITY OF ROUND ROCK, TEXAS, a
home-rule municipal corporation, whose offices are located at 221 East Main Street, Round
Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and Holmes Murphy &
Associates, whose offices are located at 3333 Lee Parkway, Suite 900, Dallas, Texas 75219
(hereinafter referred to as the"Consultant").
RECITALS:
WHEREAS, City sponsors various health and welfare plans (hereinafter referred to as the
"Plans") as employee benefits for its employees; and
WHEREAS, City has issued its solicitation for the provision of Employee Benefit
Consulting Services relative to such Plans [Request for Proposal Number 05-918-40 dated April
19, 2005]; and
WHEREAS, City received Consultant's response to said Request for Proposal, and duly
selected Holmes Murphy&Associates as its Consultant; and
WHEREAS, City now desires to contract for Consultant's assistance in providing
advisory services and reports to City in connection with the Plans; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH that for and in consideration of the mutual
promises contained herein and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, it is mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE,DURATION,AND TERM
A. This Agreement shall be effective on the date this Agreement has been signed by
every party hereto, and shall remain in full force and effect unless and until it
expires by operation of the term indicated herein, or is terminated or extended as
provided herein.
B. The initial term of this Agreement shall be for one (1) twelve-month period from
the effective date. For purposes hereof, the effective date means the date upon
which the binding signatures of both parties to this Agreement are affixed.
00087794/jkg EXHIBIT
nAu
C. At City's option, this Agreement may be renewed for a maximum of four (4)
additional periods of time not to exceed twelve (12) months for each renewal.
D. City reserves the right to review Consultant's performance at any time during the
initial term or any renewal period, and may elect to terminate this Agreement with
or without cause or may elect to continue.
2.01 SELECTION OF CONSULTANT; PRIORITY ORDER OF DOCUMENTS
City has selected Consultant to supply the services generally outlined in City's Request
for Proposal Number 05-918-40 dated April 19, 2005, and such selection was based in part on
Consultant's April 29, 2005 response to the referenced Request for Proposal. The intent of this
document is to formulate the complete Agreement delineating the legal responsibilities of both
parties. This Agreement supersedes and replaces any previous agreement between the parties,
whether oral or written, and whether or not established by custom and practice. This Agreement
includes the following:
Exhibit"A" City's Request for Proposal Number 05-918-40 dated April 19, 2005;
Exhibit`B" Consultant's response to same dated April 29, 2005 (including entire
contents of ring binder notebook);
Exhibit"C" Any after-issued exhibits, addenda, and/or amendments
Any inconsistencies or conflicts in the Agreement or in any documents making up the
Agreement shall be resolved by giving preference according to the following priority order of
documents:
(1) This Agreement;
(2) Consultant's response to City's Request for Proposal;
(3) City's Request for Proposal Number 05-918-40.
3.01 SCOPE OF SERVICES
The services which are the subject matter of this Agreement are fully described in the
attached Exhibit "B" which is Consultant's response to City's Request for Proposal, and are
specifically found on pages 7 through 18 under Tab C labeled "Section C: Scope of Services."
Exhibit`B" is incorporated herein by reference for all purposes as though recited verbatim.
4.01 CONSULTING FEE
A. In consideration for the services to be performed by Consultant, City agrees to
pay Consultant the sum of Seventy-two Thousand and No/100 Dollars
($72,000.00) per year, reduced by commissions received by Consultant from
insurance companies whose products are utilized by City. The fee may be
adjusted by an amount per employee based on the difference in the number of
covered employees in the specifications provided by City, but in no event will
exceed the maximum sum of $72,000.00 per year.
2
B. The annual fee (of$72,000.00 reduced by commissions received by Consultant
from insurance companies whose products are utilized by City) shall be paid
proportionately monthly over a twelve-month period.
C. The annual fee (of$72,000.00 reduced by commissions received by Consultant
from insurance companies whose products are utilized by City) for the first year
of this Agreement shall be offset by fees paid by City to Consultant for the "Co-
Op Feasibility Project." City's offset for Phase 1 shall be $7,065.00. City's offset
for Phase II, if completed, shall be $1,196.00.
D. Payment of commissions from benefit vendors/providers will be arranged by
Consultant and the appropriate benefit vendor/provider. The actual commissions
received shall be documented on invoices sent to City as part of Consultant's
standard billing practices.
E. No reimbursement for travel expenses or any other costs whatsoever are
authorized hereunder.
5.01 FEE FIXED
The consulting fee fixed in this Agreement is fully described in the attached Exhibit`B"
which is Consultant's response to City's Request for Proposal, and is specifically found under
Tab D labeled "Section D: Cost." Exhibit `B" is incorporated herein by reference for all
purposes as though recited herein verbatim.
The consulting fee recited herein for services shall be firm for the duration of the initial
term of this Agreement, and shall be firm for the duration of all renewal periods. Renewals of
this Agreement shall be on the original terms and conditions recited herein plus any changes
specifically approved by City.
6.01 TERMS OF PAYMENT
To receive payment, Consultant shall prepare and submit a series of monthly invoices.
Each invoice shall state and detail the Scope of Services' deliverable(s) accomplished, along
with documentation for each deliverable. All invoices shall include, at a minimum, the
following information: (1) name and address of Consultant; (2) description of services rendered;
(3) original invoice number, if applicable; and(4)delivery dates.
7.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which City receives the
performance and/or deliverables, or within thirty (30) days of the day on which the performance
of services was complete, or within thirty (30) days of the day on which City receives a correct
invoice for the performance and/or deliverables or services, whichever is later. Consultant may
charge a late fee (not greater than that which is permitted by Texas law) for payments not made
3
in accordance with this Prompt Payment Policy; however, this policy does not apply to payments
made by City in the event:
A. There is a bona fide dispute between City and Consultant concerning 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 Consultant and a subcontractor or between a
subcontractor and its supplier concerning the 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
any purchase order, or this Agreement or other such contractual agreement.
8.01 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Consultant a written notice of termination at the end of its then-current fiscal year.
9.01 RESPONSIBILITIES OF CITY
A. City acknowledges its understanding that the responsibilities for administering the
Plans and for carrying out provisions of the Plans rest with the Plan
Administrators, as that term is defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"); and City acknowledges that
Consultant shall not serve as the Plan Administrator but shall, subject to direction
from City, perform services as are enumerated in this Agreement.
B. City acknowledges that it retains complete and final discretionary authority,
responsibility, and control regarding policy, interpretations, practices, procedures,
administration and compliance of Plans; City recognizes that Consultant is not a
fiduciary, as defined in ERISA, under this Agreement, and that Consultant shall
not perform any service which would cause it to be a fiduciary of any Plan; and
City acknowledges that it is the Plan Sponsor, Plan Administrator, and Named
Fiduciary as those terms are defined in ERISA.
C. City acknowledges and agrees that nothing contained in this Agreement shall be
construed so as to obligate Consultant in any way with respect to any state,
federal or other filings due on or before the effective date of this Agreement. If
City requests that Consultant prepare and complete delinquent filings, City
acknowledges that such services would be outside of the scope of services of this
4
Agreement and payment for same would be on terms and conditions negotiated by
the parties separate and apart from this Agreement.
D. City acknowledges that this Agreement shall not be deemed a contract of
insurance under any laws or regulations; City acknowledges its understanding that
Consultant does not insure, guarantee or underwrite the liability of City under the
Plans; and City acknowledges that City has total fiduciary responsibility under the
Plans and has responsibility for all expenses incidental to the Plans.
E. City acknowledges its understanding that Consultant is not a law firm and is not
authorized to provide nor engaged in providing legal services; City acknowledges
that matters for which Consultant may advise City might involve the application
of federal, state, local, and in some instances foreign laws; and City acknowledges
that Consultant has disclaimed any responsibility for advising City concerning the
proper legal interpretation or application of laws affecting the matters for which
City has engaged Consultant.
F. City shall maintain current and accurate eligibility and coverage records for the
Plans, verify participant eligibility, and submit information timely at Consultant's
request.
G. City shall resolve all Plan ambiguities and disputes relating to the Plan eligibility
of a Plan participant, Plan coverage, or any other Plan interpretation questions.
H. City shall provide Consultant with copies of any minor revisions, changes or
amendments to the Plans within fifteen (15) working days of the effective date of
such changes. However, for any proposed amendments to the Plans which would
have a material impact on the services to be provided under this Agreement, City
agrees to provide Consultant with copies of such proposed amendments to the
Plans at least ninety (90) days prior to their adoption. If it is determined that any
such Plan amendments materially impact the services to be provided hereunder,
then Consultant shall notify City within sixty (60) days following receipt of the
amendments of any impact such changes would have on the services to be
provided under this Agreement. The parties agree to then enter into good faith
negotiations regarding any changes to this Agreement necessitated by the Plan
amendments. In the event the parties are unable to agree as to any such changes,
then either party may be eligible to terminate this Agreement in accordance with
applicable provisions herein.
I. City shall provide and timely distribute all notices and information required to be
given to Plan participants, maintain and operate the Plans in accordance with
applicable federal and state laws, maintain all recordkeeping, and file all forms
relative thereto pursuant to any federal, state or local law unless this Agreement
specifically assigns such duties to Consultant.
5
J. City shall pay all taxes, licenses, and fees levied, if any, by any local, state, or
federal authority in connection with the Plans.
K. City warrants and represents that the only entities that participate or will
participate in the Plans are in City's"control group" as the term is used in ERISA.
L. City shall maintain responsibility for the accuracy and timeliness of all Plan
records, and shall act as the sole authority to communicate with Plan participants.
M. City shall timely provide Consultant with such information as Consultant may
reasonably require for it to perform services under this Agreement; and City shall
deliver such information to Consultant within reasonable time frames.
10.01 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, not City's employee. Consultant's employees or
subcontractors are not City's employees. This Agreement does not create a partnership
relationship. Neither party has authority to enter into contracts as agent for the other party. The
parties agree to the following rights consistent with an independent contractor relationship:
A. Consultant has the right to perform services for others during the term hereof.
B. Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
C. Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
D. Consultant or Consultant's employees or subcontractors shall perform the services
required by this Agreement. City shall not hire, supervise, or pay any assistants
to help Consultant.
E. Neither Consultant nor Consultant's employees or subcontractors shall receive
any training from City in the skills necessary to perform the services required by
this Agreement.
F. City shall not require Consultant or Consultant's employees or subcontractors to
devote full time to performing the services required by this Agreement.
G. Neither Consultant nor Consultant's employees or subcontractors are eligible to
participate in any employee pension, health, vacation pay, sick pay, or other
fringe benefit plan of City.
6
11.01 CITY'S DESIGNATION OF AUTHORIZED REPRESENTATIVES
City represents and warrants that it has the authority to act on behalf of the Plans under
this Agreement. City shall from time to time designate in writing one or more of its employees
who shall be authorized to provide instructions to Consultant under this Agreement.
City at this time hereby designates the following City employee as its authorized
representative:
Linda Gunther
Human Resources
221 East Main Street
Round Rock, Texas 78664
(512) 218-5491
12.01 PROPRIETARY DATA
A. During the term of this Agreement, each party shall use the information furnished
to it solely for the purpose of performing their respective obligations under the
Agreement. During the term of this Agreement, and for five (5) years thereafter,
neither party shall disclose such information to any person other than to its
directors, officers, employees, lenders, counsel, representatives or affiliates, if
any, who require the information ("Representatives"), or for any purpose other
than as set forth above. If a party desires to disclose the information furnished to it
under this Agreement to a Representative, that party shall first inform the
Representative of the confidential nature of the information and of the
requirement that it not be used for purposes other than as set forth above. In any
event, and without limiting the preceding obligation, the party receiving the
information shall be and remains legally responsible for any breach of this
Agreement, and shall reasonably safeguard the information from unauthorized use
or disclosure by its Representatives. Except as may be required by applicable law,
regulation or stock exchange rules, without the prior written consent of the party
supplying the information, the party receiving the information will not, and will
not permit its Representatives to, disclose to any person either the fact that the
information has been made available to that party, or that the party has inspected
any portion of the information. If a party who has received the information is
requested or required (by oral questions, interrogatories, requests for information
or documents, subpoena, civil investigative demand or similar process)to disclose
any information, that party, to the extent it may legally do so, will promptly notify
the other party of such request or requirement so that the other party may seek an
appropriate protective order. To the extent the other party is unable to obtain a
protective order and the party receiving the information is legally compelled to
disclose information, the party receiving the information may disclose such of the
information to the party compelling disclosure as is required by law.
7
B. For the purposes of this agreement, confidential information shall not include: (1)
information that is, or comes, within the public domain through no fault of either
party; (2) information learned by either party from third parties; or(3) information
known to, or disclosed by, either party independent of this Agreement.
C. All records maintained by Consultant under this Agreement are exclusively the
property of City. If, upon termination, City requests a change in the format or
content of the records maintained by Consultant,then City shall be responsible for
payment of any reasonable costs associated with such changes. If City becomes
aware of any breach of this section or other conditions under which such system,
documentation or other information or any part thereof is lost or comes into
possession of an unauthorized person, firm or organization, City shall promptly
notify Consultant and provide Consultant with in regarding such breach
or improper possession and take reasonable action as necessary to recover the
system, documentation or other information or any part thereof at the request and
cost of Consultant. The obligations of City and Consultant under this section shall
survive the termination of this Agreement.
13.01 MATERIALS OWNERSHIP; CONFIDENTIALITY
All work produced under this Agreement, and all rights therein, belongs to and shall be
the sole and exclusive property of City.
Consultant expressly acknowledges its understanding that City is subject to the Texas
Public Information Act, and that City's duties run in accordance therewith. Following proper
execution of this Agreement, any and all programs, data, or other materials involved herewith
may be subject to release as public information unless Consultant proves such information to be
exempt from the Texas Public Information Act. Consultant is advised to consult its own legal
counsel regarding disclosure issues, and Consultant is solely responsible for taking appropriate
precautions to safeguard trade secrets or any other proprietary information. City assumes no
obligation or responsibility whatsoever for asserting legal arguments on behalf of Consultant.
14.01 WARRANTIES
Consultant represents that it employs trained, experienced and competent persons to
perform all of the services, responsibilities and duties specified herein, and Consultant warrants
that all services performed under this Agreement shall be performed consistent with generally
prevailing professional or industry standards. City's remedy for breach of the above warranty
shall be the satisfactory re-performance of Consultant's services or as otherwise provided for
herein.
15.01 INDEMNIFICATION
A. This indemnification section shall apply to Consultant and City, and to each of the
party's successors, assigns, officers, employees and elected officials.
8
B. Each party shall indemnify the other, and hold each other harmless, from any and
all loss, damage, penalty, liability, cost and expense, including without limitation
reasonable attorney's fees and disbursement that may be incurred by, imposed
upon, or asserted by reason of any suit, action, legal proceeding, claim, demand,
regulatory proceeding, or litigation arising from any act done or omitted to be
done by any indemnifying party, excepting only any loss, damage, penalty,
liability, cost or expenses resulting from negligence or willful misconduct of the
indemnified party. Nothing herein shall be deemed to limit the rights (including
but not limited to the right to seek contribution) of City or Consultant against any
third party who may be liable for an indemnified claim.
C. The parties agree that in no event shall they be liable to the other for any
incidental, indirect, special, punitive, consequential or similar damages of any
kind including without limitation loss of profits, loss of business or interruptions
of business, whether such liabilities are predicated on contract, tort, strict liability
or any other legal theory.
D. The parties agree that the provisions of this section shall survive the termination
of this Agreement.
16.01 ASSIGNMENT AND DELEGATION
The parties bind themselves, successors, assigns and legal representatives to each other
with respect to terms of this Agreement. Neither party may assign, sublet or transfer any rights
or interests under this Agreement without the other party's prior written approval, and neither
may delegate any duties under this Agreement without the other party's prior written approval.
17.01 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute by appropriate internal means, including referral to each party's senior management. If
the parties cannot reach a mutually satisfactory resolution, then and in that event any such
dispute may be sought to be resolved with the help of a mutually selected mediator. If the parties
cannot agree on a mediator, City and Consultant shall each select a mediator and the two
mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees,
associated with the mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14)or any applicable state arbitration statute.
18.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
9
assurance of intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
19.01 DEFAULT
If Consultant cannot or does not provide the services specified herein, City reserves the
right and option to obtain the services from another source.
If Consultant abandons or defaults under this Agreement, and such is the cause of City
purchasing the specified services elsewhere, Consultant agrees that it may be charged the
difference in cost, if any, and that it may not be considered in the re-advertisement or re-
proposing of the services, and that it may not be considered in future solicitations for the same
type services unless the scope of services is significantly changed.
Consultant shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
B. Fails to provide adequate assurance of performance under Section 18.01 herein;or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United States.
20.01 TERMINATION
This Agreement may be terminated as follows:
A. City has the right to terminate this Agreement, in whole or in part, at any time,
without penalty and with or without cause, with not less than thirty (30) days'
written notice to the other party.
B. City has the right to terminate this Agreement for cause due to a material breach
or default of Consultant in the performance of its responsibilities and obligations
under this Agreement, provided such material breach is not cured to City's
satisfaction within ten (10) days from the date of written notice of such breach or
default, unless immediate termination is permitted under paragraph C.
immediately below.
C. Either party has the right to immediately terminate this Agreement in the event
the other party shall become insolvent, make a general assignment for the benefit
of creditors, suffer or permit the appointment of a receiver for its business or
assets, become subject to any proceeding under any bankruptcy or insolvency law
whether domestic or foreign, or become liquidated, voluntarily or otherwise.
10
D. Consultant has the right to terminate this Agreement only for cause, that being in
the event of a material and substantial breach by City, or if City fails to pay the
undisputed portion of invoices upon proper presentation for payment and in
accordance with applicable portions of this Agreement dealing with charges and
payment.
E. Upon termination of this Agreement, Consultant shall return all documents,
information and data relating to the Plans of City. Consultant may not retain
input or output materials or the Plans' data files without City's express written
permission. Consultant agrees not to disclose such data to any third party unless
otherwise directed by City or as required by law.
F. Save and except for those sums due and payable, or which may later be
determined to be due and payable pursuant to applicable provisions governing
termination, should this Agreement be terminated by either party:
1. If terminated by City, Consultant shall discontinue all services in
connection with the performance of this Agreement and shall proceed to
cancel all existing orders and agreements insofar as such orders or
agreements are chargeable to this Agreement. Within thirty (30) days
after receipt of notice of termination, Consultant shall submit an invoice
showing in detail the satisfactorily performed services under this
Agreement to the date of termination. City shall pay Consultant that
portion of the prescribed undisputed charges. Termination of this
Agreement shall not relieve Consultant of any obligations or liabilities
occurring prior to termination.
2. If terminated by Consultant, Consultant shall discontinue all services in
connection with this Agreement and shall terminate all existing orders and
agreements insofar as such orders and agreements are chargeable to this
Agreement. Within thirty (30) days of date of termination, Consultant
shall submit an invoice showing in detail the satisfactorily performed
services under this Agreement to the date of termination. City shall pay
Consultant that portion of the prescribed undisputed charges. Termination
of this Agreement shall not relieve Consultant of any obligations or
liabilities occurring prior to termination.
G. The parties acknowledge and agree that Consultant shall not be entitled to
compensation for services it would have performed under the remaining term of
this Agreement except as provided above.
21.01 LOCAL,STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
11
A. Withhold FICA from Consultant's payments or make FICA payments on
Consultant's behalf;
B. Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
C. Withhold state or federal income tax from Consultant's payments.
Consultant acknowledges its understanding that City is exempt from federal excise and
state sales tax, and acknowledges that such taxes are not to be included in any charges to City.
22.01 GRATUITIES AND BRIBES
City may, by written notice to Consultant, immediately cancel this Agreement without
any liability of any kind to Consultant if it is determined by City that gratuities or bribes in the
form of entertainment, gifts, or otherwise were offered or given by Consultant or its agents or
representatives to any City officer, employee or elected representative with respect to the
performance of this Agreement. In addition, Consultant may be subject to penalties stated in the
Texas Penal Code.
23.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant and its agents, employees and subcontractors shall use best efforts to comply
with all applicable federal and state laws, the Charter and ordinances of the City of Round Rock,
as amended, and with all applicable rules and regulations promulgated by local, state and
national boards, bureaus and agencies.
24.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
A. When delivered personally to recipient's address as stated herein.
B. Three (3) days after being deposited in the United States mail, with postage
prepaid to recipient's address as stated herein.
Notice to Consultant:
Holmes Murphy&Associates
3333 Lee Parkway, Suite 900
Dallas, TX 75219
12
Notice to City:
David Kautz
Assistant City Manager and Chief Financial Officer
221 East Main Street
Round Rock, TX 78664
AND TO
Stephan L. Sheets
City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
25.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
The laws and court decisions of the State of Texas shall govern this Agreement, and this
Agreement shall be construed in accordance therewith. Exclusive venue shall lie in Williamson
County, Texas.
26.01 ENTIRE AGREEMENT
This is the entire and exclusive Agreement between Consultant and City, and it
supersedes all prior agreements and communications, oral and/or written, between the parties in
relation to the subject matter of this Agreement. Both parties acknowledge that they have read
this Agreement and existing exhibits and attachments, and that they understand it and agree to be
bound by its terms and conditions. The parties further agree that any attachments and exhibits
hereto are hereby incorporated by reference and made a part of this Agreement.
This Agreement may not be amended in any form other than by negotiated written
agreement duly executed by Consultant's authorized representative and by appropriate action of
either the Round Rock City Council or the Round Rock City Manager.
27.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement.
Any void provision shall be deemed severed from this Agreement, and the balance shall be
construed and enforced as if this Agreement did not contain the particular portion or provision
held to be void. The parties further agree to amend this Agreement to replace any stricken
provision with a valid provision that comes as close as possible to the intent of the stricken
13
provision. The provisions of this section shall not prevent this entire Agreement from being
void should a provision which is of the essence of this Agreement be determined void.
28.01 FORCE MAJEURE
Neither party shall be liable for failure to perform its obligations hereunder where such
failure results from acts of God, fires, storms, accidents, actions or decrees of governmental
bodies, or other such events beyond its reasonable control. The affected party shall promptly
give notice to the other party, and shall then use its best efforts to timely resume performance.
29.01 MISCELLANEOUS
A. Any waiver by either party of any requirement of this Agreement shall not be
deemed to be a continuing waiver nor a waiver of any other requirement hereof.
B. Any remedies of either party are cumulative, and exercise by a party of one
remedy shall not preclude the party from exercising any other remedy it may have
at law or hereunder.
C. This Agreement is for the mutual and exclusive benefit of Consultant and City
and shall not be deemed to be for the direct or indirect benefit of clients or
customers of Consultant or City, including the Plans. Clients or customers of
Consultant and City, including the Plans, shall not be deemed to be third party
beneficiaries of this Agreement nor to have any other contractual relationship
with Consultant or City by reason of this Agreement.
D. Time is of the essence. Any failure by Consultant to fulfill obligations within
agreed timeframes will constitute a material breach of this Agreement.
Consultant 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 Consultant's failure to perform, City may pursue any remedy
available without waiver of any of City's additional legal rights or remedies.
E. This Agreement may be executed in multiple counterparts, any one of which shall
be considered an original of this document, and all of which, when taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Consultant have executed this Agreement on the
dates indicated below.
CITY OF ROUND ROCK,TEXAS ATTEST:
By: By:
Printed Name: Christine R. Martinez, City Secretary
Title:
Date Signed:
14
FOR CITY,APPROVED AS TO FORM:
By:
Stephan L. Sheets, City Attorney
HOLMES MURPHY &ASSOCIATES
By: _ -z2 b
Printed Name: b c H d, s &s h o p
Title: QREs;dEh t
r
Date Signed: 1p i Q -7 )6 s
15
DATE: July 8, 2005
SUBJECT: City Council Meeting - July 14, 2005
ITEM: 11.C.1. Consider a resolution authorizing the Mayor to execute an Agreement
for Provision of Employee Benefit Consulting Services with Holmes
Murphy & Associates.
Department: Human Resources
Staff Person: Teresa Bledsoe, Human Resources Director
Justification:
For the past three and a half years we have obtained Benefit Consultant services from Advanced
Benefits Solutions with Watson Wyatt & Co. During this period the city has experienced
significant increases in medical costs due to medical cost inflation and the city's high utilization of
catastrophic claims. With the impact of the overall costs of health insurance and prescription
drugs increasing we became concerned, as we did not receive any innovative ideas other than
suggestion in plan design changes with the health and RX programs from our agent-of-record.
The information presented by Holmes Murphy and Associates consulting agreement indicates the
capabilities, experience and expertise in providing the city with analytical power to improve the
performance of the employee belefit program.
Funding:
Cost: $72,000.00 annual fee
Source of funds: N/A
Outside Resources: N/A
Background Information:
This agreement formalizes with the agent-of-record whose general focus is to make every effort
to minimize the cost of the City's employee benefit program without sacrificing the quality of the
plan. The agreement enables us to:
• Take a more strategic approach to managing the benefits programs.
• Manage benefit cost to projected financial targets.
• Improve cost management and employee satisfaction with the benefit programs.
• Explore innovative plan options and alternatives to include but not limited to: Co-op
purchasing, on-site clinic, RX programs, Wellness programs, Consumer driven plans and
fully insured options.
• Creative marketing materials for employee communications.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
CITY OF ROUND ROCK
AGREEMENT FOR PROVISION OF
EMPLOYEE BENEFIT CONSULTING SERVICES
WITH HOLMES MURPHY &ASSOCIATES
THIS AGREEMENT to provide Employee Benefit Consultin Services (hereinafter
ref ed t as the "Agreement") is made and entered into on this the ay of the month of
, 2005 by and between the CITY OF ROUND ROCK, TEXAS, a
hom rule moiicipal corporation, whose offices are located at 221 East Main Street, Round
Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and Holmes Murphy &
Associates, whose offices are located at 3333 Lee Parkway, Suite 900, Dallas, Texas 75219
(hereinafter referred to as the "Consultant").
RECITALS:
WHEREAS, City sponsors various health and welfare plans (hereinafter referred to as the
"Plans") as employee benefits for its employees; and
WHEREAS, City has issued its solicitation for the provision of Employee Benefit
Consulting Services relative to such Plans [Request for Proposal Number 05-918-40 dated April
19, 2005]; and
WHEREAS, City received Consultant's response to said Request for Proposal, and duly
selected Holmes Murphy&Associates as its Consultant; and
WHEREAS, City now desires to contract for Consultant's assistance in providing
advisory services and reports to City in connection with the Plans; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH that for and in consideration of the mutual
promises contained herein and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, it is mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE,DURATION,AND TERM
A. This Agreement shall be effective on the date this Agreement has been signed by
every party hereto, and shall remain in full force and effect unless and until it
expires by operation of the term indicated herein, or is terminated or extended as
provided herein.
B. The initial term of this Agreement shall be for one (1) twelve-month period from
the effective date. For purposes hereof, the effective date means the date upon
which the binding signatures of both parties to this Agreement are affixed.
00087794/jkg
R-6S-09- 1H_ IIC �
C. At City's option, this Agreement may be renewed for a maximum of four (4)
additional periods of time not to exceed twelve (12) months for each renewal.
D. City reserves the right to review Consultant's performance at any time during the
initial term or any renewal period, and may elect to terminate this Agreement with
or without cause or may elect to continue.
2.01 SELECTION OF CONSULTANT; PRIORITY ORDER OF DOCUMENTS
City has selected Consultant to supply the services generally outlined in City's Request
for Proposal Number 05-918-40 dated April 19, 2005, and such selection was based in part on
Consultant's April 29, 2005 response to the referenced Request for Proposal. The intent of this
document is to formulate the complete Agreement delineating the legal responsibilities of both
parties. This Agreement supersedes and replaces any previous agreement between the parties,
whether oral or written, and whether or not established by custom and practice. This Agreement
includes the following:
Exhibit "A" City's Request for Proposal Number 05-918-40 dated April 19, 2005;
Exhibit"B" Consultant's response to same dated April 29, 2005 (including entire
contents of ring binder notebook);
Exhibit "C" Any after-issued exhibits, addenda, and/or amendments
Any inconsistencies or conflicts in the Agreement or in any documents making up the
Agreement shall be resolved by giving preference according to the following priority order of
documents:
(1) This Agreement;
(2) Consultant's response to City's Request for Proposal;
(3) City's Request for Proposal Number 05-918-40.
3.01 SCOPE OF SERVICES
The services which are the subject matter of this Agreement are fully described in the
attached Exhibit "B" which is Consultant's response to City's Request for Proposal, and are
specifically found on pages 7 through 18 under Tab C labeled "Section C: Scope of Services."
Exhibit`B" is incorporated herein by reference for all purposes as though recited verbatim.
4.01 CONSULTING FEE
A. In consideration for the services to be performed by Consultant, City agrees to
pay Consultant the sum of Seventy-two Thousand and No/100 Dollars
($72,000.00) per year, reduced by commissions received by Consultant from
insurance companies whose products are utilized by City. The fee may be
adjusted by an amount per employee based on the difference in the number of
covered employees in the specifications provided by City, but in no event will
exceed the maximum sum of $72,000.00 per year.
2
B. The annual fee (of $72,000.00 reduced by commissions received by Consultant
from insurance companies whose products are utilized by City) shall be paid
proportionately monthly over a twelve-month period.
C. The annual fee (of $72,000.00 reduced by commissions received by Consultant
from insurance companies whose products are utilized by City) for the first year
of this Agreement shall be offset by fees paid by City to Consultant for the "Co-
Op Feasibility Project." City's offset for Phase 1 shall be $7,065.00. City's offset
for Phase II, if completed, shall be $1,196.00.
D. Payment of commissions from benefit vendors/providers will be arranged by
Consultant and the appropriate benefit vendor/provider. The actual commissions
received shall be documented on invoices sent to City as part of Consultant's
standard billing practices.
E. No reimbursement for travel expenses or any other costs whatsoever are
authorized hereunder.
5.01 FEE FIXED
The consulting fee fixed in this Agreement is fully described in the attached Exhibit "B"
which is Consultant's response to City's Request for Proposal, and is specifically found under
Tab D labeled "Section D: Cost." Exhibit "B" is incorporated herein by reference for all
purposes as though recited herein verbatim.
The consulting fee recited herein for services shall be firm for the duration of the initial
term of this Agreement, and shall be firm for the duration of all renewal periods. Renewals of
this Agreement shall be on the original terms and conditions recited herein plus any changes
specifically approved by City.
6.01 TERMS OF PAYMENT
To receive payment, Consultant shall prepare and submit a series of monthly invoices.
Each invoice shall state and detail the Scope of Services' deliverable(s) accomplished, along
with documentation for each deliverable. All invoices shall include, at a minimum, the
following information: (1) name and address of Consultant; (2) description of services rendered;
(3) original invoice number, if applicable; and(4) delivery dates.
7.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which City receives the
performance and/or deliverables, or within thirty (30) days of the day on which the performance
of services was complete, or within thirty (30) days of the day on which City receives a correct
invoice for the performance and/or deliverables or services, whichever is later. Consultant may
charge a late fee (not greater than that which is permitted by Texas law) for payments not made
3
in accordance with this Prompt Payment Policy; however, this policy does not apply to payments
made by City in the event:
A. There is a bona fide dispute between City and Consultant concerning 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 Consultant and a subcontractor or between a
subcontractor and its supplier concerning the 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
any purchase order, or this Agreement or other such contractual agreement.
8.01 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Consultant a written notice of termination at the end of its then-current fiscal year.
9.01 RESPONSIBILITIES OF CITY
A. City acknowledges its understanding that the responsibilities for administering the
Plans and for carrying out provisions of the Plans rest with the Plan
Administrators, as that term is defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"); and City acknowledges that
Consultant shall not serve as the Plan Administrator but shall, subject to direction
from City, perform services as are enumerated in this Agreement.
B. City acknowledges that it retains complete and final discretionary authority,
responsibility, and control regarding policy, interpretations, practices, procedures,
administration and compliance of Plans; City recognizes that Consultant is not a
fiduciary, as defined in ERISA, under this Agreement, and that Consultant shall
not perform any service which would cause it to be a fiduciary of any Plan; and
City acknowledges that it is the Plan Sponsor, Plan Administrator, and Named
Fiduciary as those terms are defined in ERISA.
C. City acknowledges and agrees that nothing contained in this Agreement shall be
construed so as to obligate Consultant in any way with respect to any state,
federal or other filings due on or before the effective date of this Agreement. If
City requests that Consultant prepare and complete delinquent filings, City
acknowledges that such services would be outside of the scope of services of this
4
Agreement and payment for same would be on terms and conditions negotiated by
the parties separate and apart from this Agreement.
D. City acknowledges that this Agreement shall not be deemed a contract of
insurance under any laws or regulations; City acknowledges its understanding that
Consultant does not insure, guarantee or underwrite the liability of City under the
Plans; and City acknowledges that City has total fiduciary responsibility under the
Plans and has responsibility for all expenses incidental to the Plans.
E. City acknowledges its understanding that Consultant is not a law firm and is not
authorized to provide nor engaged in providing legal services; City acknowledges
that matters for which Consultant may advise City might involve the application
of federal, state, local, and in some instances foreign laws; and City acknowledges
that Consultant has disclaimed any responsibility for advising City concerning the
proper legal interpretation or application of laws affecting the matters for which
City has engaged Consultant.
F. City shall maintain current and accurate eligibility and coverage records for the
Plans, verify participant eligibility, and submit information timely at Consultant's
request.
G. City shall resolve all Plan ambiguities and disputes relating to the Plan eligibility
of a Plan participant, Plan coverage, or any other Plan interpretation questions.
H. City shall provide Consultant with copies of any minor revisions, changes or
amendments to the Plans within fifteen (15) working days of the effective date of
such changes. However, for any proposed amendments to the Plans which would
have a material impact on the services to be provided under this Agreement, City
agrees to provide Consultant with copies of such proposed amendments to the
Plans at least ninety (90) days prior to their adoption. If it is determined that any
such Plan amendments materially impact the services to be provided hereunder,
then Consultant shall notify City within sixty (60) days following receipt of the
amendments of any impact such changes would have on the services to be
provided under this Agreement. The parties agree to then enter into good faith
negotiations regarding any changes to this Agreement necessitated by the Plan
amendments. In the event the parties are unable to agree as to any such changes,
then either party may be eligible to terminate this Agreement in accordance with
applicable provisions herein.
I. City shall provide and timely distribute all notices and information required to be
given to Plan participants, maintain and operate the Plans in accordance with
applicable federal and state laws, maintain all recordkeeping, and file all forms
relative thereto pursuant to any federal, state or local law unless this Agreement
specifically assigns such duties to Consultant.
5
J. City shall pay all taxes, licenses, and fees levied, if any, by any local, state, or
federal authority in connection with the Plans.
K. City warrants and represents that the only entities that participate or will
participate in the Plans are in City's"control group"as the term is used in ERISA.
L. City shall maintain responsibility for the accuracy and timeliness of all Plan
records, and shall act as the sole authority to communicate with Plan participants.
M. City shall timely provide Consultant with such information as Consultant may
reasonably require for it to perform services under this Agreement; and City shall
deliver such information to Consultant within reasonable time frames.
10.01 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, not City's employee. Consultant's employees or
subcontractors are not City's employees. This Agreement does not create a partnership
relationship. Neither party has authority to enter into contracts as agent for the other party. The
parties agree to the following rights consistent with an independent contractor relationship:
A. Consultant has the right to perform services for others during the term hereof.
B. Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
C. Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
D. Consultant or Consultant's employees or subcontractors shall perform the services
required by this Agreement. City shall not hire, supervise, or pay any assistants
to help Consultant.
E. Neither Consultant nor Consultant's employees or subcontractors shall receive
any training from City in the skills necessary to perform the services required by
this Agreement.
F. City shall not require Consultant or Consultant's employees or subcontractors to
devote full time to performing the services required by this Agreement.
G. Neither Consultant nor Consultant's employees or subcontractors are eligible to
participate in any employee pension, health, vacation pay, sick pay, or other
fringe benefit plan of City.
6
11.01 CITY'S DESIGNATION OF AUTHORIZED REPRESENTATIVES
City represents and warrants that it has the authority to act on behalf of the Plans under
this Agreement. City shall from time to time designate in writing one or more of its employees
who shall be authorized to provide instructions to Consultant under this Agreement.
City at this time hereby designates the following City employee as its authorized
representative:
Linda Gunther
Human Resources
221 East Main Street
Round Rock, Texas 78664
(512) 218-5491
12.01 PROPRIETARY DATA
A. During the term of this Agreement, each party shall use the information furnished
to it solely for the purpose of performing their respective obligations under the
Agreement. During the term of this Agreement, and for five (5) years thereafter,
neither party shall disclose such information to any person other than to its
directors, officers, employees, lenders, counsel, representatives or affiliates, if
any, who require the information ("Representatives"), or for any purpose other
than as set forth above. If a party desires to disclose the information furnished to it
under this Agreement to a Representative, that party shall first inform the
Representative of the confidential nature of the information and of the
requirement that it not be used for purposes other than as set forth above. In any
event, and without limiting the preceding obligation, the party receiving the
information shall be and remains legally responsible for any breach of this
Agreement, and shall reasonably safeguard the information from unauthorized use
or disclosure by its Representatives. Except as may be required by applicable law,
regulation or stock exchange rules, without the prior written consent of the party
supplying the information, the party receiving the information will not, and will
not permit its Representatives to, disclose to any person either the fact that the
information has been made available to that party, or that the party has inspected
any portion of the information. If a party who has received the information is
requested or required (by oral questions, interrogatories, requests for information
or documents, subpoena, civil investigative demand or similar process)to disclose
any information, that party, to the extent it may legally do so, will promptly notify
the other party of such request or requirement so that the other party may seek an
appropriate protective order. To the extent the other party is unable to obtain a
protective order and the party receiving the information is legally compelled to
disclose information, the party receiving the information may disclose such of the
information to the party compelling disclosure as is required by law.
7
B. For the purposes of this agreement, confidential information shall not include: (1)
information that is, or comes, within the public domain through no fault of either
party; (2) information learned by either party from third parties; or(3) information
known to, or disclosed by, either party independent of this Agreement.
C. All records maintained by Consultant under this Agreement are exclusively the
property of City. If, upon termination, City requests a change in the format or
content of the records maintained by Consultant, then City shall be responsible for
payment of any reasonable costs associated with such changes. If City becomes
aware of any breach of this section or other conditions under which such system,
documentation or other information or any part thereof is lost or comes into
possession of an unauthorized person, firm or organization, City shall promptly
notify Consultant and provide Consultant with in regarding such breach
or improper possession and take reasonable action as necessary to recover the
system, documentation or other information or any part thereof at the request and
cost of Consultant. The obligations of City and Consultant under this section shall
survive the termination of this Agreement.
13.01 MATERIALS OWNERSHIP; CONFIDENTIALITY
All work produced under this Agreement, and all rights therein, belongs to and shall be
the sole and exclusive property of City.
Consultant expressly acknowledges its understanding that City is subject to the Texas
Public Information Act, and that City's duties run in accordance therewith. Following proper
execution of this Agreement, any and all programs, data, or other materials involved herewith
may be subject to release as public information unless Consultant proves such information to be
exempt from the Texas Public Information Act. Consultant is advised to consult its own legal
counsel regarding disclosure issues, and Consultant is solely responsible for taking appropriate
precautions to safeguard trade secrets or any other proprietary information. City assumes no
obligation or responsibility whatsoever for asserting legal arguments on behalf of Consultant.
14.01 WARRANTIES
Consultant represents that it employs trained, experienced and competent persons to
perform all of the services, responsibilities and duties specified herein, and Consultant warrants
that all services performed under this Agreement shall be performed consistent with generally
prevailing professional or industry standards. City's remedy for breach of the above warranty
shall be the satisfactory re-performance of Consultant's services or as otherwise provided for
herein.
15.01 INDEMNIFICATION
A. This indemnification section shall apply to Consultant and City, and to each of the
party's successors, assigns, officers, employees and elected officials.
8
B. Each party shall indemnify the other, and hold each other harmless, from any and
all loss, damage, penalty, liability, cost and expense, including without limitation
reasonable attorney's fees and disbursement that may be incurred by, imposed
upon, or asserted by reason of any suit, action, legal proceeding, claim, demand,
regulatory proceeding, or litigation arising from any act done or omitted to be
done by any indemnifying party, excepting only any loss, damage, penalty,
liability, cost or expenses resulting from negligence or willful misconduct of the
indemnified party. Nothing herein shall be deemed to limit the rights (including
but not limited to the right to seek contribution) of City or Consultant against any
third party who may be liable for an indemnified claim.
C. The parties agree that in no event shall they be liable to the other for any
incidental, indirect, special, punitive, consequential or similar damages of any
kind including without limitation loss of profits, loss of business or interruptions
of business, whether such liabilities are predicated on contract, tort, strict liability
or any other legal theory.
D. The parties agree that the provisions of this section shall survive the termination
of this Agreement.
16.01 ASSIGNMENT AND DELEGATION
The parties bind themselves, successors, assigns and legal representatives to each other
with respect to terms of this Agreement. Neither party may assign, sublet or transfer any rights
or interests under this Agreement without the other party's prior written approval, and neither
may delegate any duties under this Agreement without the other party's prior written approval.
17.01 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute by appropriate internal means, including referral to each party's senior management. If
the parties cannot reach a mutually satisfactory resolution, then and in that event any such
dispute may be sought to be resolved with the help of a mutually selected mediator. If the parties
cannot agree on a mediator, City and Consultant shall each select a mediator and the two
mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees,
associated with the mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
18.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
9
assurance of intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
19.01 DEFAULT
If Consultant cannot or does not provide the services specified herein, City reserves the
right and option to obtain the services from another source.
If Consultant abandons or defaults under this Agreement, and such is the cause of City
purchasing the specified services elsewhere, Consultant agrees that it may be charged the
difference in cost, if any, and that it may not be considered in the re-advertisement or re-
proposing of the services, and that it may not be considered in future solicitations for the same
type services unless the scope of services is significantly changed.
Consultant shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
B. Fails to provide adequate assurance of performance under Section 18.01 herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United States.
20.01 TERMINATION
This Agreement may be terminated as follows:
A. City has the right to terminate this Agreement, in whole or in part, at any time,
without penalty and with or without cause, with not less than thirty (30) days'
written notice to the other party.
B. City has the right to terminate this Agreement for cause due to a material breach
or default of Consultant in the performance of its responsibilities and obligations
under this Agreement, provided such material breach is not cured to City's
satisfaction within ten (10) days from the date of written notice of such breach or
default, unless immediate termination is permitted under paragraph C.
immediately below.
C. Either party has the right to immediately terminate this Agreement in the event
the other party shall become insolvent, make a general assignment for the benefit
of creditors, suffer or permit the appointment of a receiver for its business or
assets, become subject to any proceeding under any bankruptcy or insolvency law
whether domestic or foreign, or become liquidated, voluntarily or otherwise.
10
D. Consultant has the right to terminate this Agreement only for cause, that being in
the event of a material and substantial breach by City, or if City fails to pay the
undisputed portion of invoices upon proper presentation for payment and in
accordance with applicable portions of this Agreement dealing with charges and
payment.
E. Upon termination of this Agreement, Consultant shall return all documents,
information and data relating to the Plans of City. Consultant may not retain
input or output materials or the Plans' data files without City's express written
permission. Consultant agrees not to disclose such data to any third party unless
otherwise directed by City or as required by law.
F. Save and except for those sums due and payable, or which may later be
determined to be due and payable pursuant to applicable provisions governing
termination, should this Agreement be terminated by either party:
1. If terminated by City, Consultant shall discontinue all services in
connection with the performance of this Agreement and shall proceed to
cancel all existing orders and agreements insofar as such orders or
agreements are chargeable to this Agreement. Within thirty (30) days
after receipt of notice of termination, Consultant shall submit an invoice
showing in detail the satisfactorily performed services under this
Agreement to the date of termination. City shall pay Consultant that
portion of the prescribed undisputed charges. Termination of this
Agreement shall not relieve Consultant of any obligations or liabilities
occurring prior to termination.
2. If terminated by Consultant, Consultant shall discontinue all services in
connection with this Agreement and shall terminate all existing orders and
agreements insofar as such orders and agreements are chargeable to this
Agreement. Within thirty (30) days of date of termination, Consultant
shall submit an invoice showing in detail the satisfactorily performed
services under this Agreement to the date of termination. City shall pay
Consultant that portion of the prescribed undisputed charges. Termination
of this Agreement shall not relieve Consultant of any obligations or
liabilities occurring prior to termination.
G. The parties acknowledge and agree that Consultant shall not be entitled to
compensation for services it would have performed under the remaining term of
this Agreement except as provided above.
21.01 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
11
A. Withhold FICA from Consultant's payments or make FICA payments on
Consultant's behalf;
B. Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
C. Withhold state or federal income tax from Consultant's payments.
Consultant acknowledges its understanding that City is exempt from federal excise and
state sales tax, and acknowledges that such taxes are not to be included in any charges to City.
22.01 GRATUITIES AND BRIBES
City may, by written notice to Consultant, immediately cancel this Agreement without
any liability of any kind to Consultant if it is determined by City that gratuities or bribes in the
form of entertainment, gifts, or otherwise were offered or given by Consultant or its agents or
representatives to any City officer, employee or elected representative with respect to the
performance of this Agreement. In addition, Consultant may be subject to penalties stated in the
Texas Penal Code.
23.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant and its agents, employees and subcontractors shall use best efforts to comply
with all applicable federal and state laws, the Charter and ordinances of the City of Round Rock,
as amended, and with all applicable rules and regulations promulgated by local, state and
national boards, bureaus and agencies.
24.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
A. When delivered personally to recipient's address as stated herein.
B. Three (3) days after being deposited in the United States mail, with postage
prepaid to recipient's address as stated herein.
Notice to Consultant:
Holmes Murphy&Associates
3333 Lee Parkway, Suite 900
Dallas, TX 75219
12
Notice to City:
David Kautz
Assistant City Manager and Chief Financial Officer
221 East Main Street
Round Rock, TX 78664
AND TO
Stephan L. Sheets
City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
25.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
The laws and court decisions of the State of Texas shall govern this Agreement, and this
Agreement shall be construed in accordance therewith. Exclusive venue shall lie in Williamson
County, Texas.
26.01 ENTIRE AGREEMENT
This is the entire and exclusive Agreement between Consultant and City, and it
supersedes all prior agreements and communications, oral and/or written, between the parties in
relation to the subject matter of this Agreement. Both parties acknowledge that they have read
this Agreement and existing exhibits and attachments, and that they understand it and agree to be
bound by its terms and conditions. The parties further agree that any attachments and exhibits
hereto are hereby incorporated by reference and made a part of this Agreement.
This Agreement may not be amended in any form other than by negotiated written
agreement duly executed by Consultant's authorized representative and by appropriate action of
either the Round Rock City Council or the Round Rock City Manager.
27.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement.
Any void provision shall be deemed severed from this Agreement, and the balance shall be
construed and enforced as if this Agreement did not contain the particular portion or provision
held to be void. The parties further agree to amend this Agreement to replace any stricken
provision with a valid provision that comes as close as possible to the intent of the stricken
13
provision. The provisions of this section shall not prevent this entire Agreement from being
void should a provision which is of the essence of this Agreement be determined void.
28.01 FORCE MAJEURE
Neither party shall be liable for failure to perform its obligations hereunder where such
failure results from acts of God, fires, storms, accidents, actions or decrees of governmental
bodies, or other such events beyond its reasonable control. The affected party shall promptly
give notice to the other party, and shall then use its best efforts to timely resume performance.
29.01 MISCELLANEOUS
A. Any waiver by either party of any requirement of this Agreement shall not be
deemed to be a continuing waiver nor a waiver of any other requirement hereof.
B. Any remedies of either party are cumulative, and exercise by a party of one
remedy shall not preclude the party from exercising any other remedy it may have
at law or hereunder.
C. This Agreement is for the mutual and exclusive benefit of Consultant and City
and shall not be deemed to be for the direct or indirect benefit of clients or
customers of Consultant or City, including the Plans. Clients or customers of
Consultant and City, including the Plans, shall not be deemed to be third party
beneficiaries of this Agreement nor to have any other contractual relationship
with Consultant or City by reason of this Agreement.
D. Time is of the essence. Any failure by Consultant to fulfill obligations within
agreed timeframes will constitute a material breach of this Agreement.
Consultant 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 Consultant's failure to perform, City may pursue any remedy
available without waiver of any of City's additional legal rights or remedies.
E. This Agreement may be executed in multiple counterparts, any one of which shall
be considered an original of this document, and all of which, when taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Consultant have executed this Agreement on the
dates indicated below.
CITY OF N ROCK, TEXAS ATTEST:
By. By: �.✓1 t1�� �' LSC J I (.t,� �I
Printed /�j A� Christine R. Martinez, City Secretary
Title: !Yl► vp�2. p_ E/Y)
Date Signed:
14
FOR C*AP 14ORM:
By: ets, rney
HOLMES MURPHY& ASSOCIATES
By:
Printed Name: E N i\1 '
Title: PR ES a ir N i
Date Signed: to/a 7 5-
15