Contract - David Walther - 11/9/2017 CITY OF ROUND ROCK AGREEMENT FOR
TRANSPORTATION OPERATIONS CONSULTINGS SERVICES
WITH
DAVID WALTHER
THIS AGREEMENT for Transportation Operations Consultant Services (the
"Agreement") is made by and between the CITY OF ROUND ROCK, a Texas home-rule
municipal corporation with offices located at 221 East Main Street, Round Rock, Texas 78664-
5299 (hereinafter referred to as "City"), and David Walther (hereinafter referred to as
"Consultant").
RECITALS:
WHEREAS, City desires to contract for Consultant's assistance in providing advisory
services in connection with transportation operations and new traffic signal projects; 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
each party hereto ("effective date"), 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 term of this Agreement shall be for sixty(60) months from the effective date.
1.02 SCOPE OF WORK
The Consultant shall satisfactorily provide the services set forth in the attached Exhibit
"A," "Scope of Work." Consultant shall satisfactorily provide all services and deliverables in a
professional and workmanlike manner. Consultant's undertakings shall be limited to performing
services for the City and/or advising the City concerning those matters on which Consultant has
been specifically engaged.
1.03 CONSULTING FEE
A. The consulting fee shall be Fifty and No/100 Dollars ($50.00) per hour, not-to-
exceed twenty-five(25) hours per week.
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B. The fee paid to Consultant shall not exceed Sixty-Five Thousand and No/100
Dollars ($65,000.00) per year and shall not exceed a total of Three Hundred
Twenty-Five Thousand and No/100 Dollars ($325,000.00) for the term of the
Agreement.
C. No reimbursement for travel expenses or any other costs whatsoever are
authorized hereunder.
1.04 TERMS OF PAYMENT
A. To receive payment, Consultant shall prepare and submit detailed monthly
invoices to the City, in accordance with the delineation contained herein, for
services rendered. Such invoices shall detail the services performed, along with
documentation for each service performed. Payment to Consultant shall be made
on the basis of the invoices submitted by Consultant and approved by the City.
Such invoices shall conform to the schedule of services and costs in connection
therewith.
B. Should additional backup material be requested by the City relative to service
deliverables, Consultant shall comply promptly. In this regard, should the City
determine it necessary, Consultant shall make all records and books relating to
this Agreement available to the City for inspection and auditing purposes.
C The City reserves the right to correct any error that may be discovered in any
invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of an invoice, the City shall
endeavor to pay Consultant promptly, but no later than the time period required
under the Texas Prompt Payment Act described in Section 1.06 herein. Under no
circumstances shall Consultant be entitled to receive interest on payments which
are late because of a good faith dispute between Consultant and the City or
because of amounts which the City has a right to withhold under this Agreement
or state law.
1.05 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if the City determines that there
has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
the City shall not be responsible for actions by Consultant nor for any costs incurred by
Consultant relating to additional work not directly authorized by Supplemental Agreement.
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1.06 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by the City to Consultant will be made within thirty(30) days of the date the City receives
goods under this Agreement, the date the performance of the services under this Agreement are
completed, or the date the City receives a correct invoice for the goods or services, whichever is
later. Consultant may charge interest on an overdue payment at the "rate in effect"on September
1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by the City in the event:
(a) There is a bona fide dispute between the City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed
that cause the payment to be late; or
(b) There is a bona fide dispute between Consultant and a subcontractor or
between a subcontractor and its supplier about the goods delivered or the
service performed that causes the payment to be late; or
(c) The terms of a federal contract, grant, regulation, or statute prevent the City
from making a timely payment with federal funds; or
(d) The invoice is not mailed to the City in strict accordance with any instruction
on the purchase order relating to the payment.
1.07 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of the City's current revenues only. It is understood
and agreed that the City shall have the right to terminate this Agreement at the end of any City
fiscal year if the governing body of the City does not appropriate funds sufficient to purchase the
services as determined by the City's budget for the fiscal year in question. The City may effect
such termination by giving Consultant a written notice of termination at the end of its then-
current fiscal year.
1.08 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and the City agree to the following rights
consistent with an independent contractor relationship:
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(1) Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which it performs its services required by this Agreement.
(3) Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and the City shall not hire, supervise, or pay assistants to help
Consultant.
(5) Neither Consultant nor its employees or subcontractors shall receive training from
the City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
(7) Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of the City.
1.09 CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by the City for use by Consultant
in connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any
proprietary or confidential information relative to this Agreement, and to not make any use
thereof other than for the performance of this Agreement, provided that no claim may be made
for any failure to protect information that occurs more than three (3) years after the end of this
Agreement.
The parties recognize and understand that the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
All data relating specifically to the City's business and any other information which
reasonably should be understood to be confidential to City is confidential information of City.
Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries,
inventions, know-how, and any other information which reasonably should be understood to be
confidential to Consultant is confidential information of Consultant. The City's confidential
information and Consultant's confidential information is collectively referred to as "Confidential
Information." Each party shall use Confidential Information of the other party only in
furtherance of the purposes of this Agreement and shall not disclose such Confidential
Information to any third party without the other party's prior written consent, which consent
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shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the
confidentiality of the other party's Confidential Information and to advise their employees of the
confidential nature of the Confidential Information and of the prohibitions herein.
Notwithstanding anything to the contrary contained herein, neither party shall be
obligated to treat as confidential any information disclosed by the other party (the "Disclosing
Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is released by the Disclosing Party to any other person or entity (including
governmental agencies) without restriction; (3) is independently developed by the recipient
without any reliance on Confidential Information; or (4) is or later becomes publicly available
without violation of this Agreement or may be lawfully obtained by a party from any non-party.
Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information
of the other to a third party as may be required by law, statute, rule or regulation, including
subpoena or other similar form of process, provided that (without breaching any legal or
regulatory requirement) the party to whom the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein
shall preclude or limit Consultant from providing similar services for other clients.
Neither the City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered to the City under the terms of this Agreement; and Consultant shall own
any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes,
software, or other similar information which may have been discovered, created, developed or
derived by Consultant either prior to or as a result of its provision of services under this
Agreement.
1.10 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that the City may terminate this
Agreement for the convenience of the City, upon thirty (30) days' written notice to Consultant,
with the understanding that immediately upon receipt of said notice all work being performed
under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily
completed and shall be compensated in accordance with the terms hereof for work accomplished
prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related to this project shall become the
property of the City upon termination of this Agreement, and shall be promptly delivered to the
City in a reasonably organized form without restriction on future use. Should the City
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subsequently contract with a new consultant for continuation of service on the project,
Consultant shall cooperate in providing information.
Termination of this Agreement shall extinguish all rights, duties, and obligations of the
City and the terminated party to fulfill contractual obligations. Termination under this section
shall not relieve the terminated party of any obligations or liabilities which occurred prior to
termination.
Nothing contained in this section shall require the City to pay for any work which it
deems unsatisfactory or which is not performed in compliance with the terms of this Agreement.
Default: Either party may terminate this Agreement, in whole or in part, for default if
the Party provides the other Party with written notice of such default and the other fails to
satisfactorily cure such default within ten (10) business days of receipt of such notice (or a
greater time if agreed upon between the Parties).
If default results in termination of this Agreement, then the City shall give consideration
to the actual costs incurred by Consultant in performing the work to the date of default. The cost
of the work that is useable to the City, the cost to the City of employing another firm to complete
the useable work, and other factors will affect the value to the City of the work performed at the
time of default. Neither party shall be entitled to any lost or anticipated profits for work
terminated for default hereunder.
The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of the terminating Party and the terminated Party to fulfill contractual obligations.
Termination under this section shall not relieve the terminated party of any obligations or
liabilities which occurred prior to termination.
Nothing contained in this section shall require the City to pay for any work which it
deems unsatisfactory, or which is not performed in compliance with the terms of this Agreement.
1.11 INDEMNIFICATION
Consultant and the City each agree to indemnify, defend and hold harmless the other
from and against amounts payable under any judgment, verdict, court order or settlement for
death or bodily injury or the damage to or loss or destruction of any real or tangible property to
the extent arising out of the indemnitor's negligence in the performance of this Agreement.
1.12 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval, which approval shall not be unreasonably withheld.
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1.13 COMPLIANCE WITH LAWS,CHARTER AND ORDINANCES
A. Consultant, its consultants, agents, employees and subcontractors shall use best
efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the
City of Round Rock, as amended, and with all applicable rules and regulations promulgated by
local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and same shall belong solely to the City at the expiration of the term of this Agreement.
B. Consultant acknowledges and understands that City has adopted a Storm Water
Management Program (SWMP) and an Illicit Discharge Ordinance, Sections 14-139 through 14-
152 of the City's Code of Ordinances, to manage the quality of the discharges from its Municipal
Separate Storm Sewer System (MS4) and to be in compliance with the requirements of the Texas
Commission on Environmental Quality (TCEQ) and the Texas Pollutant Discharge Elimination
System (TPDES). The Consultant agrees to perform all operations on City-owned facilities in
compliance with the City's Illicit Discharge Ordinance to minimize the release of pollutants into
the MS4. The Consultant agrees to comply with of the City's stormwater control measures, good
housekeeping practices and any facility specific stormwater management operating procedures
specific to a certain City facility. In addition, the Consultant agrees to comply with any
applicable TCEQ Total Maximum Daily Load (TMDL) Requirements and/or I-Plan
requirements.
1.14 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
1.15 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
the City shall select one mediator and Consultant shall select one mediator and those two
mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees,
associated with the mediation shall be shared equally by the parties.
The City and Consultant hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act(9 USC Section 1-14) or any applicable state arbitration statute.
1.16 FORCE MAJEURE
Notwithstanding any other provisions hereof to the contrary, no failure, delay or default
in performance of any obligation hereunder shall constitute an event of default or breach of this
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Agreement, only to the extent that such failure to perform, delay or default arises out of causes
beyond control and without the fault or negligence of the party otherwise chargeable with failure,
delay or default; including but not limited to acts of God, acts of public enemy, civil war,
insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other
casualties, strikes or other labor troubles, which in any way restrict the performance under this
Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to the City if its failure
to perform or its substantial delay in performance is due to the City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.17 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement.
Any void provision shall be deemed severed from this Agreement, and the balance of this
Agreement shall be construed and enforced as if this Agreement did not contain the particular
portion of provision held to be void. The parties further agree to amend this Agreement to
replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision. The provisions of this Article shall not prevent this entire Agreement
from being void should a provision which is of the essence of this Agreement be determined
void.
1.18 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
No delay or omission by either party in exercising any right or power shall impair such
right or power or be construed to be a waiver. A waiver by either party of any of the covenants
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in
writing and signed by an authorized representative of the party against whom such waiver or
discharge is sought to be enforced.
This Agreement shall evidence the entire understanding and agreement between the
parties and shall supersede any prior proposals, correspondence or discussions.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered one original. The City agrees to provide Consultant with one fully executed original.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock,Texas David Walther, Consultant
By: By r
Printed Name: Prin ed N e: �n—
Title: Title:
Date Signed. Date Signed: t�
For City,Attest:
By: l r
Sara L. White, City Clerk
For City,A p oved as to F rm:
By:
Steph L. Sheets, City Attorney
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EXHIBIT "A"
SCOPEOFSERVICES
Transportation Operations Consultant:
• Will be utilized on Transportation Operations and developing a Traffic
Sign replacement program to meet the new MUTCD (Manual of Uniform Traffic
Control Devices)guidelines, to ensure a quality project is built on schedule
and within budget.
• Provide pre-construction services from engineering design review, to
budgeting and scheduling and project bid management.
• Assist with Transportation Operations planning and construction
management services during design.
• Maintain relationships with CORR partnering parties throughout the
project,from design,plan review and construction.
• Ensure efficiency in Operations and throughout design/construction
and close out by gathering data and summarizing for the Transportation
Operations Manager and Transportation Director.
The contract would be a not-to-exceed amount of $65,000.00 per year for five
(5) years, with a projected 25 hours weekly, at the rate of$50.00 per hour.
CERTIFICATE OF INTERESTED PARTIES
FORM 1.295
lofl
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-266014
David Walther
Round Rock,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 09/27/2017
being filed.
City Of Round Rock Date Acknowledged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
Consultant David Walther
Transportation Operations Consultant Services support to the City of Round Rock Transportation Department for transportation
operations,maintenance and traffic signal construction projects.
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party.
X
6 AFFIDAVIT I swear,or affirm,under penalty f perjury,that the above disclosure is true and correct.
BONNIE PARKS
MY COMMISSION EXPIRES
? May 7,2019
'•-%',p*;,', Signature of authorized agent o ontracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE 1
Sworn to and subscribed before me,by the said ��\1l � J-�,�f'.i this the day of s,
20_,to certify which,witness my hand and seal of office.
PAZ?;,
Signa ure of 6ffi r administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337
CERTIFICATE OF INTERESTED PARTIES
FORM 3.295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-266014
David Walther
Round Rock,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 09/27/2017
being filed.
City Of Round Rock Date Acknowledged:
11/02/2017
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
Consultant David Walther
Transportation Operations Consultant Services support to the City of Round Rock Transportation Department for transportation
operations, maintenance and traffic signal construction projects.
4
Nature of interest
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party. ❑
X
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
Signature of authorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said this the day of
20 ,to certify which,witness my hand and seal of office.
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337