CM-2019-0349 - 11/1/2019CITY OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES RELATED TO
DELL DIAMOND BACKSTOP NETTING EXTENSION PROJECT
WITH
DUNAWAY ASSOCIATES L.
THE STATE OF TEXAS §
THE CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
THIS AGREEMENT for professional consulting services related to the Dell Diamond
Backstop Netting Extension Project (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 (the "City"), and DUNAWAY ASSOCIATES, L.P.,
Iocated at 5707 Southwest Parkway, Building No. 2, Suite 250, Austin, Texas 78735 (the
"Consultant" ).
RECITALS:
WHEREAS, consulting services pertaining to City's Dell Diamond Backstop Netting
Expansion Project, are desired by the City; and
WHEREAS, City desires to contract with Consultant for said consulting services; and
WHEREAS, City has determined that there is a need for the delineated services; 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:
1.0 EFFECTIVE DATE, DURATION, AND TERM
A. This Agreement shall be effective on the date this Agreement has been signed by
each 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. This Agreement shall termination upon the successful completion of services as
set forth herein.
X�- 20 (1-6341
0043294S: ss2
C. City and the Consultant reserve the right to review the Agreement at any time,
and may elect to terminate the Agreement with or without cause or may elect to continue.
2.0 SCOPE OF SERVICES
Consultant has issued its proposal for services, such proposal for services being attached
to this Agreement as Exhibit "A" titled "Scope of Services," which shall be referred to as the
Scope of Services of this Agreement and incorporated herein by reference for all purposes.
Consultant shall satisfactorily provide all services described herein and as set forth in
Exhibit "A." Consultant shall perform services in accordance with this Agreement, in
accordance with the appended Scope of Services and in accordance with due care and prevailing
consulting industry standards for comparable services.
3.0 LIMITATION TO SCOPE OF SERVICES
Consultant's undertaking shall be limited to performing services for City and., -'or advising
City concerning those matters on which Consultant has been specifically engaged. Consultant
and City agree that the Scope of Services to be performed is enumerated in Exhibit "A" and
herein, and may be increased during the term of the Agreement, but only with a written
Supplemental Agreement executed by both parties as described in Section 9.0.
4.0 CONTRACT AMOUNT
In consideration for the professional consulting services to be performed by Consultant,
City agrees to pay Consultant an amount not -to -exceed Ten Thousand and No/100 Dollars
($10,000.00) to be paid in a lump sum amount as set forth in Exhibit "A."
5.0 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit a detailed invoice to
the City, in accordance with the delineation contained herein, for services rendered. Such invoice
for professional services shall track the referenced Scope of Work, and shall detail the services
performed, along with documentation for each service performed. Payment to Consultant shall
be made on the basis of the invoice submitted by Consultant and approved by the City. Such
invoice shall conform to the schedule of services and costs in connection therewith.
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.
Payment of Invoice: 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
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Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 7.01 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. The City shall be responsible for any sales, gross receipts or similar taxes
applicable to the services, but not for taxes based upon Consultant's net income.
6.0 INSURANCE
Consultant shall meet all City of Round Rock Insurance Requirements set forth at:
ht!ps://www.roundrocktexas.goy/—w-p-content/upIoads..,2014..,l2.°torr insurance 07.201I2. df
7.0 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
I 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.
8.0 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 affect
such termination by giving Consultant a written notice of termination at the end of its then -
current fiscal year.
9.0 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 (I) 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.
10.0 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that the City or Consultant may
terminate this Agreement for the convenience of the City or Consultant, upon thirty (30) days'
written notice to Consultant or City, 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 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
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.
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
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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.
11.0 NON -SOLICITATION
Except as may be otherwise agreed in writing, during the term of this Agreement and for
twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or shall
employ any person employed then or within the preceding twelve (12) months by the other or
any affiliate of the other if such person was involved, directly or indirectly, in the performance of
this Agreement. This provision shall not prohibit the hiring of any person who was solicited
solely through a newspaper advertisement or other general solicitation.
12.0 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:
(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.
(G) City shall not require Consultant or its employees or subcontractors to devote full
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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.
13.0 CONFIDENTIALITY; 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
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.
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Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall
preclude or limit Consultant from providing similar services for other clients.
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 Iimit Consultant from providing similar services for other clients.
Neither the City nor Consultant will be Iiable 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 (tile "Deliverables"); 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 (other than Deliverables). Consultant shall have the right to retain
copies of the Deliverables and other items for its archives. Consultant's working papers and
Consultant's Confidential Information (as described herein) shall belong exclusively to the
Consultant. "Working papers" shall mean those documents prepared by Consultant during the
course of performing the Project including, without limitation, schedules, analyses,
transcriptions, memos, designed and developed data visualization dashboards and working notes
that serve as the basis for or to substantiate the Project. In addition, Consultant shall retain sole
and exclusive ownership of its know-how, concepts, techniques, methodologies, ideas, templates,
dashboards, code and tools discovered, created or developed by Consultant during the
performance of the Project that are of general application and that are not based on City's
Confidential information hereunder (collectively, "Consultant's Building Blocks"). To the
extent any Deliverables incorporate ConsuItant's Building Blocks, Consultant gives City a non-
exclusive, non -transferable, royalty -free right to use such Building Blocks solely in connection
with the deliverables. Subject to the confidentiality restrictions mentioned above, Consultant
may use the deliverables and the Building Blocks for any purpose. Except to the extent required
by law or court order, City will not otherwise use, or sublicense or grant any other party any
rights to use, copy or otherwise exploit or create derivative works from Consultant's Building
Blocks.
City shall have a non-exclusive, non -transferable license to use Consultant's Confidential
Information for City's own internal use and only for the purposes for which they are delivered to
the extent that they form part of the Deliverables.
13.0 WARRANTIES
Consultant represents that all services performed hereunder shall be performed consistent
with generally prevailing professional or industrial standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re -perform any work not in compliance
with this representation.
15.0 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of the City or of this
Agreement, then and in that event the City shall give written notification to Consultant;
thereafter, (a) Consultant shall either promptly re -perform such services to the City's satisfaction
at no additional charge, or (b) if such deficient services cannot be cured within the cure period
set forth herein, then this Agreement may be terminated for default.
In no event will Consultant be liable for any loss, damage, cost or expense attributable to
negligence, willful misconduct or misrepresentations by the City, its directors, employees or
agents.
Neither party's liability, in contract, tort (including negligence) or any other legal or
equitable theory, (a) shall exceed the professional fees paid or due to Consultant pursuant to this
Agreement or (b) include any indirect, incidental, special, punitive or consequential damages,
even if such party has been advised of the possibility of such damages. Such excluded damages
include, without Iimitation, loss of data, loss of profits and Ioss of savings of revenue.
16.0 INDEMNIFICATION
Consultant shall save and hold harmless City and its officers and employees from all
claims and liabilities due to activities of his/her.'itself and his/her/its agents or employees,
performed under this Agreement, which are caused by or which result from the negligent error,
omission, or negligent act of Consultant or of any person employed by Consultant or under
Consultant's direction or control.
Consultant shall also save and hold City harmless from any and all expenses, including
but not limited to reasonable attorneys' fees which may be incurred by City in litigation or
otherwise defending claims or liabilities which may be imposed on City as a result of such
negligent activities by Consultant, its agents, or employees.
17.0 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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18.0 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. The City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3) Withhold state or federal income tax from any of Consultant's payments.
If requested, the City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
19.0 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. In accordance with Chapter 2270, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
Israel during the term of a contract. The signatory executing this Agreement on behalf of
Consultant verifies Consultant does not boycott Israel and will not boycott Israel during the term
of this Agreement.
20.0 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required hereunder.
21.0 DESIGNATION OF REPRESENTATIVES
The City hereby designates the following representative authorized to act on its behalf
with regard to this Agreement:
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Chad McKenzie
Sports Management and Tourism Director
221 East Main Street
Round Rock, TX 78664
22.0 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(l) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Dunaway Associates, L.P.
5707 Southwest Parkway, Building No. 2, Suite 250
Austin, Texas 78735
Notice to City:
City Manager, City of Round Rock
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 the City and Consultant.
23.0 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.
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24.0 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including exhibits, constitute the entire
agreement between the parties and supersede all previous communications, representations, and
agreements, either written or oral, with respect to the subject matter hereof The parties
expressly agree that, in the event of any conflict between the terms of this Agreement and any
other writing, this Agreement shall prevail. No modifications of this Agreement will be binding
on any of the parties unless acknowledged in writing by the duly authorized governing body or
representative for each party.
25.0 DISPUTE RESOLUTION
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.
26.0 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.
27.0 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner acceptable to the City and according to generally accepted business
practices.
28.0 GRATUITIES AND BRIBES
City, may by written notice to Consultant, cancel this Agreement without incurring any
liability 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
Title 8 of the Texas Penal Code.
29.0 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
assurance of the 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 an anticipatory repudiation of this Agreement.
30.0 MISCELLANEOUS PROVISIONS
Time is of the Essence. Consultant agrees that time is of the essence and that any failure
of Consultant to complete the services for each Phase of this Agreement within the agreed
Exhibit "A" may constitute a material breach of the Agreement.
Consultant shall be fully responsible for its delays or for failures to use reasonable efforts
in accordance with the terms of this Agreement. Where damage is caused to City due to
Consultant's failure to perform in these circumstances, City may withhold, to the extent of such
damage, Consultant's payments hereunder without a waiver of any of City's additional legal
rights or remedies. City shall render decisions pertaining to Consultant's work promptly to avoid
unreasonable delays in the orderly progress of Consultant's work.
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 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.
Section Numbers. The section numbers and headings contained herein are provided for
convenience only and shall have no substantive effect on construction of this Agreement.
Waiver. 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.
Multiple Counterparts. 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.
I?
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock, Texas
Title: (_i —4
Date Signed:
For City, Attest:
By: &-- W.-—
Sara L. White, City Clerk
For City, Approved as to Form:
By:
Stephan . Sheets, City Attorney
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Dunaway Associates, L.P.
By: ---�-
Printed am . oo M. r u►�oH,
Title:
Date Signed:
Exhibit "A"
DunAWAYIlJ36
Dunaway No. P005854.001
September 19, 2019
Brian Stillman
City of Round Rock
221 East Main Street
Round Rock, TX 78664 Via e-mail: bstillman@roundrocktexas.gov
Reference: Proposal for Professional Services
Dell Diamond Backstop Netting Extension, Round Rock, TX
Mr. Stillman:
Dunaway Associates, L.P. (Dunaway) is pleased to submit this proposal for professional structural
engineering services on the above -referenced project. Based on email correspondence, we
believe the following scope of services will meet your needs for this project.
PROJECT SCOPE OF WORK
This project will consist of an extension of the existing backstop netting system at Dell Diamond in
Round Rock, TX. It is our understanding that the netting supplier will engineer the cable support
system and provide Dunaway with a layout of attachment points to the existing structural framing,
as well as reaction loads at each attachment point. We will analyze the existing structural
elements for the provided loads, and design/coordinate connection details at attachment points.
Our services include the following:
• Analyze the existing structural elements for the provided loads, and design/coordinate
connection details at attachment points with netting supplier.
• Design new vertical cantilevered poles and foundations to resist cable forces at netting
extension ends.
• Develop construction plans, details and specifications required for construction. This
includes: General Notes, Foundation Plans, Framing Plans and Detail Sheets
• Construction Administration consisting of shop drawing review and responses to
Contractor questions, as well as a maximum of 3 site visits for observation of the new
construction.
Only those services specifically mentioned in the Scope of Work section are offered as part of
this proposal.
Total Structural Fee: $10,000 Lump Sum
Dunaway proposes to provide the project scope of work described for a fee as shown above plus
direct expenses. Please find attached to this proposal our Standard Terms & Conditions for
professional services, which is also part of this proposal.
5707 Southwest Parkway, Bldg. 2, Ste. 250 4e Austin Texas 78735 a Tel: 512.306.8252 Fax: 512 306.7240 -4 dunawayassociales.com
Texas Reg'slered Engineer'ng Firm No: f 1114
Exhibit "A"
Proposal for Professional Services
Dell Diamond Backstop Netting Extension, Round Rock, TX
Page 2
EXCLUSIONS
The design of netting and support cables are to be designed and detailed by the sports netting
supplier and is not included. Also, the required special inspections and testing by a qualified third -
party inspector are not included in our scope of work.
If this proposal meets with your approval, please sign below and return one copy to our office as
our notice to proceed. We appreciate the opportunity to assist you with this project and look
forward to its success.
Respectfully submitted,
DUNAWAY ASSOCIATES, L.P.,
a Texas limited partnership
6eABE
Sr. Discipline Lead - Structural
Attachments: Standard Terms & Conditions
WBNIkrr
Agreed & Accepted
CITY OF ROUND ROCK
By:
Name:
Title:
Date:
Fort Worth - Austn r Midland 0 Son Ar,irr
dunowayassociates.corn
Exhibit "A"
DUNAWAY ILM
STANDARD TERMS & CONDITIONS
Page 1 Of 2
These Standard Terms & Conditions are attached to and fully incorporated into the Base Contract. The Base Contract, together with these
Standard Terms and Conditions, is sometimes called this "Agreement" herein.
Basis of Compensation. Professional Services shall be billed
monthly and based upon either a percent complete for lump
sum tasks or Dunaway Associates, L.P.'s Standard Hourly Bill
Rale Schedule. This Schedule is updated annually in January.
2019 STANDARD HOURLY BILL RATE SCHEDULE
STAFF TYPE
HOURLY BILL RATE
Administrative ..............................................
$85 00- $154.00
Information Systems ...................................
$100.00 - $110.00
Marketing/Business Development .................
$90.00 - $220.00
Financial.....................................................
$120,00 - $220.00
Civil Technician ............................................
$95.00 - $121.00
Civil Designer .............................................
$120.00 - $143.00
Graduate Engineer .....................................
$118,00 - $135.00
Project Engineer ..........................................
$135 00 - $209.00
Managing Engineer ..................................... $175 00 - $193.00
Technical Engineer ................... ............. -- $195 00 - $242.00
Project Surveyor ......................................... $140.00 - $154.00
Survey Party Chef ...................................... $120.00 • $154.00
Survey Technician ......... ............................. $100 00 - $127.00
Survey Field Assistant-- ............... ............. $63 00- $75.00
GIS............................................................
$105 00 - $-.6 00
Planner ........... .......................................
$100.00 • $209.00
Landscape Designer ...................................
$105.00 - $116 00
Landscape Architect. ................................-
$100,00 - $150.00
Environmental Scientist ..............................
$105.00 - $116 00
Intern .............. ..................... ....................
..-... $75.00 - $83.00
Discipline Lead .........................................
$130.00 • $260.00
Engagement Manager .................................
$210 00 - $350.00
Line of Business Manager/Executive..,.,......
$260.00 - $310.00
Regional Manager/Executive......................
$200.00 - $310.00
Managing Partner .......... ...........................
$350.00 - $420.00
President .......................... . ................. .,..
. $450.00 - $540.00
II. Limitation of Liability. To the fullest extent permitted by law,
and notwithstanding any other provision of this Agreement, the
total liability in the aggregate of Dunaway Associates, L.P. and
Dunaway Associates, L P.'s officers, directors, partners,
employees, agents and Dunaway Associates, L.P.'s
Subconsullants, and any of them, to Client and anyone
claiming by, through or under Client, for any and all claims,
losses, costs, or damages whatsoever arising out of, resulting
from, or in any way related to the Project or this Agreement
from any cause or causes, including but not limited to the
negligence, professional errors or omissions, strict liability
or breach of contract, or warranty express or implied of
Dunaway Associates, L P. or Dunaway Associates, L.P 's
officers, directors, partners, employees, agents or Dunaway
Associates, L.P.'s Subconsultants or any of them, shall not
exceed the total compensation received by Dunaway
Associates, L.P. under this Agreement.
111. No Consequential Damages. Notwithstanding any other
provision of this Agreement, neither party shall be liable to the
other for any consequential damages incurred due to the fault
of the other party, regardless of the nature of this fault or
whether it was committed by the Client or Dunaway Associates,
L.P., their employees, agents, or subconsultants
Consequential damages include, but are not limited to, loss of
use and loss of profit
IV. No Duties to Third Parties. The serv;ces to be performed by
Dunaway Associates, L P. under this Agreement are intended
solely for the benefit of the Client Nothing contained herein
shall confer any rights upon or create any duties on the part of
Dunaway Associates, L. P. toward any person or persons not a
party to this Agreement including. but not limited to any
contractor, subcontractor, supplier, or the agents officers,
employees, insurers, or sureties of any of them.
V. Claims Limited to Insurance Coverage. The Client and
Dunaway Associates, L.P. waive all rights for damages, each
against the other and against the contractors, subconsultants,
agents, and employees of the other, but onry to the extent
covered by properly insurance during or after construction,
except such rights as they may have to the proceeds of such
insurance The Client and Dunaway Associates, L.P. each shall
require similar waivers from their contractors, subconsultants,
and agents.
VI. General Contractor Duties and Responsibilities. Neither
the professional activities of Dunaway Associates, L.P., nor the
presence of Dunaway Assoc,ates, L.P. or his or her employees
and subconsultants at a construction site, shall relieve the
General Contractor and any other entity of their obligations,
duties and responsibilities including but not limited to.
construction means, methods. sequence, techniques or
procedures necessary for performing, superintending or
coordinating all portions of the Work of construction in
accordance with the contract documents and any health or
safety precautions required by any regulatory agencies
Dunaway Associates, L.P. and his or her personnel have no
authority to exercise any control over any construction
contractor or other entity or their employees in connection with
their work or any health or safely precautions. The Client
agrees that the General Contractor is solely responsible for
jobsite safely, and warrants that this intent shall be made
evident in the Client's agreement with the General Contractor.
The Client also agrees that the Client, Dunaway Associates,
L.P. and Dunaway Associates, L.P.'s Subconsullants shall be
indemnified and shall be made additional insureds under
the General Contractor's general liability insurance policy.
VII. Cancellation. It is understood that this Agreement may be
canceled at any time by the Client and payment shall be due
based on the method of computation in Section I only on Work
performed or expenses incurred to date of cancellation.
VIII. Payments and Interest. Client recognizes that prompt
payment of Dunaway Associates, L.P.'s invoices is an essential
aspect of the overall consideration Dunaway Associates, L.P.
requires for providing service to Client. Client agrees to pay all
charges not in dispute within 30 days of date of invoice. All
accounts past due 60 days from date of invoice shall pay
interest at the rale of 18% (1.5% per month), or maximum
allowable by law, whichever is lower, of the past due amount
per month.
5707 Southwest Parkway, Bldg. 2, Ste. 250 -1 Ausl'm Texas 78735 -k Tel: 512.306.8252 : Fox 512.306.7240 g dunawoyossocioles.com
Texas Regislered Engineering Firm No. F-1 1 14
Exhibit "A"
STANDARD TERMS & CONDITIONS
IX. Cessation of Services. If Client, for any reason, fails to pay
the undisputed portion of Dunaway Associates, L.P.'s invoices
within 30 days of invoice date, Dunaway Associates, L.P. has
the right to cease work on the project and Client shall waive
any claim against Dunaway Associates, L.P. for cessation of
services, and shall defend and Indemnify Dunaway
Associates, L.P. from and against any claims for injury or loss
stemming from Dunaway Associates, L.P.'s cessation of
service Client shall also pay Dunaway Associates, L.P. the
cost associated with premature project demob lizalion. In the
event the project is remobil.zed, Client shall also pay the cost
of remobilization, and shall renegotiate appropriate contract
terms and conditions, such as those associated with budget,
schedule or scope of service.
X. Legal Action. Subject in all respects to the other provisions of
this Agreement, in the event legal action is necessary to
enforce the payment terns of this Agreement, the prevailing
party in any such action shall be entitled to collect anyjudgment
or settlement sums due, plus reasonable attomey's fees, court
costs and other reasonable expenses incurred by the prevailing
party in connection with such collection action.
XI. Dispute Resolution and Termination. In the event any bill,
or portion thereof, is disputed by Client, Client shall notify
Dunaway Associates, L.P. within 10 days of receipt of the bill
in question, and Client and Dunaway Associates, L.P. shall
work together to resolve the matter within 60 days of its being
called to Dunaway Associates, L P's attention. If resolution of
the matter is not attained within 60 days, either party may
terminate this Agreement in accordance with conditions
indicated in the termination of agreement clause specified in
Section VII
XII. Mediation. In an effort to resolve any conflicts that arise during
the design and construction of the Project or following the
completion of the Project, the Ment and Dunaway Associates,
L.P. agree that all disputes between them arising out of or
relating to this Agreement or the Project shal' be submitted to
nonbinding mediation unless the parties mutually agree
otherwise The Client and Dunaway Associates, L.P. further
agree to include a similar mediation provision in all agreements
with independent contractors and subconsultants retained for
the Project and to require a°l independent contractors and
subconsultants also to include a similar mediation provision in
all agreements with their subcontractors, subconsultants,
suppliers and fabricators, thereby providing for mediation as
the primary method for dispute resolution between the parties
to all those agreements
Surveying Regulations, Land Surveying in the State of Texas
is regulated by the Texas Board of Professional Land
Surveying, Building A, Suite 156, 92100 Park 35 Circle, Austin,
Texas 78753, telephone number (512) 239-5263.
Dunaway Associates, LP Survey F rrrr Registration #10098100
Dunaway UDG Survey Firm Registratlon #10065900
XIII. Reimbursable Expenses. Other charges which may apply to
the Client's project include.
A. Expenses include mileage, parking, tolls, internal
printing, aerials, postage, FedExlCouder, courthouse
records, tax certificates. on the job meals, invo;cing time,
field supplies, and other local travel expenses.
B. All direc non -labor expenses, including fees paid on
behalf of Client, bid advertising; airfare, lodg ng, and rental
cars are charged at actual cost.
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C. For services not offered as a part of Dunaway Associates,
L P.'s normal services, the Client may, at his option,
contract directly with the third party for such services or
through Dunaway Associates, L.P. If such contracts are
made through Dunaway Associates, L.P., a service
charge of 10% will be added to the net amount of such
contracts.
Dunaway reserves the right to amend this fee policy at any
given time.
XIV. Certifications, Guarantees and Warranties. Dunaway
Associates, L.P. shall not be required to execute any document
that would result in its certifying, guaranteeing or warranting the
existence of conditions whose existence Dunaway Associates,
L.P. cannot ascertain.
XV. Assignment, Neither party to this Agreement shall transfer,
sublet or assign any rights or duties under or interest in this
Agreement, including but not limited to monies that are due or
monies that may be due, without the prior written consent of the
other party. Subcontracting to subconsultants, normally
contemplated by the Consultant as a generally accepted
business practice, shall not be considered an assignment for
purposes of this Agreement.
XVI. Miscellaneous.
A. Intellectual Property. The drawings, specifications and
any other work products (including but not limited to
software programs and electronic media of any
description) prepared by Dunaway Associates, L.P. for
this project shall remain the property of Dunaway
Associates, L.P. and Dunaway Associates, L.P. shall
retain all common law, statutory and other reserved rights,
including the copyright, where applicable.
B. Entire Aareement. This Agreement is the entire
agreement between the parties with respect to the subject
matter of this Agreement and shall be binding upon and
inure to the benefit of the parties hereto and their
respective legal representatives, heirs, successors and
assigns.
C. Counterparts. This Agreement shall be executed with one
or more separate counterparts, each of which, when so
executed, shall, together, constitute and be one in the
same instrument.
D. Governing_ Law_ and Venue. This Agreement shall be
governed by, and construed in accordance with the
substantive laws of the State of Texas and the parties
hereto agree and consent that venue for all purposes shall
be in Tan -ant County, Texas.
E. Pr000sal Expiration. The terms stated in the proposal are
valid only if executed by both parties within 90 days from
the date of the proposal.
F. Free Publicity. Dunaway Associates, L.P. has the right to
photogr[pnh the above named project and to use the
photos in the promotion of the professional practice of
Dunaway Associates, L P. through advertising, pub-ic
re-ations, brochures or other marketing materials. Should
additional photos be needed in the future, the Client
agrees to provide reasonable access to the project
F,u,,r worth ASP Austin * Midland 3 Son Antonio
dunawoyossociales.com
City of Round Rock
PNDROCK
S Agenda Item Summary
Agenda Number:
Title: Consider executing a Professional Consulting Services Agreement with
Dunaway Associates, L.P. for services related to the Dell Diamond Backstop
Netting Extension Project.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 11/1/2019
Dept Director: Chad McKenzie - Director Sports Management
Cost: $10,000.00
Indexes: Dell Diamond Capital Repair Fund
Attachments:
Department: Sports Management and Tourism
Text of Legislative File CM -2019.0349
This project will consist of an extension of the existing backstop netting system at Dell
Diamond. The netting supplier will engineer the cable support system and provide Dunaway
with a layout of attachment points to the existing structural framing, as well as reaction loads at
each attachment point.
The services will include:
1. Analyze the existing structural elements for the provided loads, and design/coordinate
connection details at attachment point with netting supplier.
2. Design new vertical cantilevered poles and foundations to resist cable forces at netting
extension ends.
3. Develop construction plans, details and specification required for construction. This
includes: General Notes, Foundation Plans, Framing Plans and Detail Sheets.
4. Construction Administration consisting of shop drawing review and responses to Contractor
questions, as well as maximum of 3 site visits for observation of the construction.
Cost. $10,000.00
Source of Funds: Dell Diamond Capital Repair Fund
City of Round Rock Page i Printed on 10/31/2078