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R-03-02-13-13E1 - 2/13/2003t11 THIS AGREEMENT is made and entered into on this the /3 day of the month of , 2003, by and between the City of Round Rock, a Texas home -rule municipal corporation, ose offices are located at 221 East Main Street, Round Rock, Texas 78664 - 5299 (hereinafter referred to as the "City "), and Prime Strategies, Inc., whose offices are located at 1508 South Lamar Boulevard, Austin, Texas, 78704 (hereinafter referred to as "Consultant "). CITY OF ROUND ROCK AGREEMENT FOR CONSULTING SERVICES WITH PRIME STRATEGIES, INC. RECITALS: WHEREAS, City desires to contract for Consultant's assistance in support of a legislative funding initiative for the Round Rock Higher Education Center, coordination in development of a comprehensive community support effort for the Round Rock Higher Education Center, and development and implementation of a comprehensive schedule for approval and construction of the first phase of the Round Rock Higher Education Center, 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 This Agreement shall be effective on the date it 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. The term of this Agreement shall be through and including June 5, 2003. After that initial term, this Agreement may renew and extend for successive terms for a period not to exceed two (2) years after the initial expiration of term, only upon the express written agreement of both parties and only provided Prime Strategies, Inc. has performed all covenants and undertakings specified in this Agreement and any appended materials. 1.02 GENERAL CONDITIONS The General Conditions contained herein shall apply to the Scope of Services, attached hereto as Exhibit "A" and made a part hereof of all appropriate purposes. This Agreement and such 01wdoalCORR NUZ!C,V 43OI$ WPM', R_ 03- 0a- 13 -13E7 Scope of Services is entered into by and between the City of Round Rock or its subsidiaries or affiliates (collectively "City") and Prime Strategies, Inc. or any entity directly or indirectly owned or controlled by same (collectively "Prime Strategies "). 1.03 GENERAL CONDITIONS INCORPORATED For purposes of this Agreement, Consultant has issued its Scope of Services for the assignment(s) delineated therein. Such Scope of Services is appended to this Agreement and is labeled as Exhibit "A," and shall be deemed to incorporate the General Conditions contained herein. Except with respect to the description of specific services and fees for the assignment(s) delineated therein, the General Conditions of this Agreement and this Agreement itself shall prevail over any conflicting terms therein. Taken together with the appended Scope of Services, the General Conditions contained in this Agreement shall evidence the entire understanding and agreement between the parties and supersede any prior proposals, correspondence or discussions. 1.04 SCOPE OF SERVICES Consultant shall satisfactorily provide all services described under this "Scope of Services" category and under Exhibit "A." Consultant's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with these General Conditions and this Agreement, in accordance with the appended Scope of Services, in accordance with due care, and in accordance with prevailing consulting industry standards for comparable services. 1.05 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS Payment for Services: In consideration for the consulting services to be performed by Consultant, City agrees to pay Consultant the following sum(s) as stated herein: Consulting Services Not to exceed $15,000.00 Reimbursable Expenses Not to exceed $ 1,500.00 $16,500.00 Unless subsequently changed by Supplemental Agreement to this Agreement, duly authorized by City Council Resolution, Consultant's total compensation hereunder shall not exceed $16,500.00 including any Reimbursable Expenses. This amount represents the absolute limit of City's liability to Consultant unless changed by additional Supplemental Agreement hereto. Deductions. No deductions shall be made from Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions. No additions shall be made to Consultant's compensation based upon claims, whether paid by City or denied. 2 Supplemental Agreements. The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council Resolution, if 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 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. 1.06 TIMETABLES Unless otherwise indicated to Consultant in writing by City, or unless Consultant is unreasonably delayed in the orderly progress of its work by forces beyond Consultant's control, the following timetable shall apply: Through and including June 5, 2003, or as otherwise extended as authorized herein. 1.07 TERMS OF PAYMENT; REIMBURSABLE EXPENSES Invoices. To receive payment for services, Consultant shall prepare and submit a series of monthly invoices in a form acceptable to City. Each invoice for professional services shall track the "Scope of Services" category herein, shall state and detail the services performed, the individual performing such services, the dates and times of performance of such services, and documentation for each such service performed. All payments to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by City. Such invoices shall conform to the schedule of services and costs in connection therewith. All Reimbursable Expenses shall be clearly shown. Should additional backup material be requested by City, Consultant shall comply promptly with such request. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. Payment of Invoices. 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 invoices, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.08 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 City or because of amounts which City has a right to withhold under this Agreement or state law. 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. Offsets. City may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. 3 Reimbursable Expenses. Payment for customary reimbursable expenses hereunder shall not exceed the maximum sum of $1,500.00. City shall pay Consultant for reimbursable expenses on a monthly basis, as invoiced and documented, at actual cost. Customary reimbursable expenses shall include such items as the following: a. Reprographic /reproduction services; b. Binding charges; c. Computer and printing service bureau charges; d. Facsimile charges; e. Postal/delivery services (as necessary to complete services in a timely manner); f. Non -local transportation at the rate of $0.36 per mile; g. Long- distance telecommunications; and h. Meals and lodging. 1.08 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, 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 or services, whichever is later. Consultant may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this policy does not apply to payments made by City in the event: 1. There is a bona fide dispute between City and Consultant concerning the services performed that causes the payment to be late; or 2. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or 3. There is a bona fide dispute between Consultant and a subcontractor or between a subcontractor and its supplier conceming the services performed which causes the payment to be late; or 4. The invoice is not mailed to City in strict accordance with instructions, if any, on any purchase order or this Agreement. 1.09 NON - APPROPRIATION 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 Contractor a written notice of termination at the end of its then - current fiscal year. 4 1.10 TERMINATION OR DEFAULT Termination. hi connection with the work outlined in this Agreement, it is agreed and fully understood by Consultant that City may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the convenience of City, upon fifteen (15) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work and services being performed under this Agreement shall cease. Consultant shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. Unless otherwise specified herein, all documents, materials, data, designs and work related to the Project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably organized form without restriction on future use. Should City subsequently contract with a new consultant for continuation of services, Consultant shall cooperate in providing information. Default. Nothing contained in the preceding paragraph shall require City to pay for any work which is unsatisfactory as determined by City or which is not submitted in compliance with the terms of this Agreement. City shall not be required to make any payments to Consultant when Consultant is in default under this Agreement, nor shall this paragraph constitute a waiver of any right, at law and at equity, which City may have if Consultant is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. 1.11 CITY'S RESPONSIBILITIES Full information. City shall provide full information regarding its requirements. City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required, if any, to enable Consultant to provide the services called for. City shall cause its employees and any third parties who are otherwise assisting, advising or representing City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by City and its employees and agents as accurate and complete. Consultant may rely upon any written directions provided by City and its employees and agents concerning provision of services. Designate representatives. City shall designate, when necessary, representatives authorized to act in its behalf. City shall examine documents submitted by Consultant and render decisions pertaining thereto promptly to avoid unreasonable delay in the orderly progress of Consultant's work. 1.12 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 apartnership relationship. Neither party has authority to enter into contracts as agent for the other party. Consultant and City agree to the following rights consistent with an independent contractor relationship: 5 1. Consultant has the right to perform services for others during the term of this Agreement; and 2. Consultant has the sole right to control and direct the means, manner and method by which services required by this Agreement will be performed; and 3. Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement; and 4. 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; and 5. 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; and 6. City shall not require Consultant or Consultant's employees or subcontractors to devote full time to performing the services required by this Agreement; and 7. 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. 1.13 CONFIDENTIALITY; DISPOSITION OF MATERIALS Each party shall take reasonable measures to preserve the confidentiality of any proprietary or confidential information provided to it in connection with this engagement, provided that no claim may be made for any failure to protect information that occurs more than two (2) years after the termination or expiration of this Agreement. At the conclusion of the engagement, upon written request, each party shall return to the other all materials, data and documents that have been provided to the other party, except that Consultant may retain one (I) copy of City's materials for its archival purposes, subject to Consultant's confidentiality obligations hereunder. City shall retain ownership of all data and materials provided by it to Consultant. Original drawings shall remain the property of Consultant. Consultant shall provide City with one (1) signed set of reproducibles and one (1) full set of digital file copies. 1.14 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement and the Scope of Services, then and in that event City shall give written notification to Consultant; 6 thereafter, Consultant shall either (a) promptly re- perform such services to City's satisfaction at no additional charge, or (b) promptly refund the portion of the fees paid for such services. In the event that re- performance of services or refund of applicable fees would not provide an adequate remedy to City for damages arising from the performance, nonperformance or breach of this Agreement and the appended Scope of Services, then and in that event Consultant's maximum total liability, including that of any employee, affiliate, agent or contractor, relating to its services, regardless of the cause of action, shall be limited to direct damages in an amount not to exceed the total fees payable under this Agreement. The foregoing limitation ofliability shall not apply to the extent that any liability arises from the gross negligence or willful misconduct of Consultant, its employees, affiliates, agents or contractors, or from bodily injury, death of any person, or damage to any real or tangible personal property. Neither party shall be liable for any indirect, special or consequential damages. 1.15 INDEMNIFICATION Consultant agrees to hold harmless, defend, and indemnify City for and from any third party claim or liability (including reasonable defense costs and attorneys' fees) to the extent arising from or in connection with the negligence of Consultant or its employees or agents in the course of performing services. The limitation of liability set forth in Section 1.14 herein applies to Consultant's indemnity obligations pursuant to this Section 1.15, but the limitation shall not apply to the extent that any liability arises from the gross negligence or willful misconduct of Consultant, its employees, affiliates, agents or contractors or from bodily injury, death of any person, of damage to any real or tangible personal property. Except to the extent that Consultant is obligated to indemnify City, City shall indemnify and hold Consultant, its employees, affiliates or agents harmless from any third party claim or liability (including reasonable defense costs and attomeys' fees) to the extent arising from or in connection with the services performed by Consultant or City's use thereof. 1.16 INSURANCE Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of Five Hundred Thousand Dollars ($500,000.00) from a company authorized to do insurance business in Texas and otherwise acceptable to City. Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these 7 requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non - renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation, non - renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) Terms "City" or "City ofRound Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and agents in their official capacities, or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self- Insured Retentions of whatever nature. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Consultant shall be bome solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. Such Certificates of Insurance are evidenced as Exhibit `B" entitled "Certificates of Insurance." 1.17 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Compliance with Laws. 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 8 by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits and licenses required in the performance of the services contracted for herein. Taxes. Consultant will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. 1.18 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 for the services required hereunder. 1.19 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 shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 1.20 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: 1. Withhold FICA from Consultant's payments or make FICA payments on Consultant's behalf; or 2. Make state and/or federal unemployment compensation contributions on Consultant's behalf; or 3. Withhold state or federal income tax from Consultant's payments. 1.21 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; 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. 9 Notice to Consultant: Prime Strategies, Inc. 1508 South Lamar Boulevard Austin, TX 78704 Notice to City: City Manager 221 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.22 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 1.23 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between Consultant and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing. 1.24 DISPUTE RESOLUTION AND TO: If a dispute or claim arises under this Agreement, the parties agree to first try to resolve the dispute or claim 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 or claim will 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. 10 City Attorney 309 East Main Street Round Rock, TX 78664 1.25 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 of this Agreement 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 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. 1.26 MISCELLANEOUS PROVISIONS Time is of the Essence. Consultant understands and agrees that time is of the essence and that any failure of Consultant to complete the services required under this Agreement within the agreed schedule 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 in these circumstances, City may withhold, to the extent of such damage, Consultant's payments hereunder without waiver of any of City's additional legal rights or remedies. City shall render decisions pertaining to Consultant's services promptly to avoid unreasonable delays in the orderly progress of Consultant's work. Force Majeure. Neither City nor Consultant shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible or circumstances beyond its control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. IN WITNESS WHEREOF, City and Consultant have executed this Agreement on the dates indicated. By: CITY OF ROUND ROCK, T axw ` Mayor Date Signed: 02 j.3 I1 ATTEST: Christine R. Martinet Ci0f,, ec�ary Date Signed: of A. -5 PRIME STRATEGIES, INC. Bv: icliael J. Weaver, Principal Date Signed: - 7 - 2 3 ATTACHMENTS Exhibit "A ": Scope of Services Exhibit `B ": Certificates of Insurance 12 EXIIIBIT "A" SCOPE OF SERVICES Task 1. Assist City and its lobbyists with its support of a legislative funding initiative for the Round Rock Higher Education Center. Task 2. Assist City, in coordination with the Chamber and Momentum, in its development of a comprehensive community support/public involvement effort promoting the Round Rock Higher Education Center. Task 3. Assist City in developing and implementing a comprehensive schedule for the approval and construction of the first phase of the Round Rock Higher Education Center, slated for opening Fall 2005. Hourly Billing Rate Schedule Principal $175.00 Senior Engineer /Senior Planner $130.00 - $150.00 Project Manager/Planner $100.00 - $110.00 Technical Support $ 75.00 - $ 90.00 Administrative Support $ 50.00 - $ 70.00 TOTAL FOR ABOVE SERVICES Not to exceed $15,000.00 13 EXHIBIT `B" CERTIFICATES OF INSURANCE 14 RESOLUTION NO. R- 03- 02- 13 -13E1 WHEREAS, the City of Round Rock desires to retain professional services in support of the legislative funding initiative for the Round Rock Higher Education Center, and WHEREAS, Prime Strategies, Inc. has submitted an Agreement for Consulting Services to provide said services, and WHEREAS, the City Council desires to enter into said agreement with Prime Strategies, Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement for Consulting Services with Prime Strategies, Inc., 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 ATT RESOLVED this 13th day of Februa , 033 `0. 4ate -1 WELL, Mayor CHRISTINE R. MARTINEZ, City Secreta 0 \wdox \REEOLUTI \E3011361.WP0/oc ty of Round Rock, Texas CITY OF ROUND ROCK AGREEMENT FOR CONSULTING SERVICES WITH PRIME STRATEGIES, INC. THIS AGREEMENT is made and entered into on this the day of the month of , 2003, by and between the City of Round Rock, a Texas home -rule municipal corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664 -5299 (hereinafter referred to as the "City"), and Prime Strategies, Inc., whose offices are located at 1508 South Lamar Boulevard, Austin, Texas, 78704 (hereinafter referred to as "Consultant "). WHEREAS, City desires to contract for Consultant's assistance in support of a legislative funding initiative for the Round Rock Higher Education Center, coordination in development of a comprehensive community support effort for the Round Rock Higher Education Center, and development and implementation of a comprehensive schedule for approval and construction of the first phase of the Round Rock Higher Education Center, 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: RECITALS: 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 This Agreement shall be effective on the date it 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. The term of this Agreement shall be through and including June 5, 2003. After that initial term, this Agreement may renew and extend for successive terms for a period not to exceed two (2) years after the initial expiration of term, only upon the express written agreement of both parties and only provided Prime Strategies, Inc. has performed all covenants and undertakings specified in this Agreement and any appended materials. 1.02 GENERAL CONDITIONS The General Conditions contained herein shall apply to the Scope of Services, attached hereto as Exhibit "A" and made apart hereof of all appropriate purposes. This Agreement and such O \ wdm\ CORRWINughertS.D.]U15015.WPD/,l, EXHIBIT DA D Scope of Services is entered into by and between the City of Round Rock or its subsidiaries or affiliates (collectively "City") and Prime Strategies, Inc. or any entity directly or indirectly owned or controlled by same (collectively "Prime Strategies "). 1.03 GENERAL CONDITIONS INCORPORATED For purposes of this Agreement, Consultant has issued its Scope of Services for the assignment(s) delineated therein. Such Scope of Services is appended to this Agreement and is labeled as Exhibit "A," and shall be deemed to incorporate the General Conditions contained herein. Except with respect to the description of specific services and fees for the assignment(s) delineated therein, the General Conditions of this Agreement and this Agreement itself shall prevail over any conflicting terms therein. Taken together with the appended Scope of Services, the General Conditions contained in this Agreement shall evidence the entire understanding and agreement between the parties and supersede any prior proposals, correspondence or discussions. 1.04 SCOPE OF SERVICES Consultant shall satisfactorily provide all services described under this "Scope of Services" category and under Exhibit "A." Consultant's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with these General Conditions and this Agreement, in accordance with the appended Scope of Services, in accordance with due care, and in accordance with prevailing consulting industry standards for comparable services. 1.05 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS Payment for Services: In consideration for the consulting services to be performed by Consultant, City agrees to pay Consultant the following sum(s) as stated herein: Consulting Services Not to exceed $15,000.00 Reimbursable Expenses Not to exceed $ 1,500.00 $16,500.00 Unless subsequently changed by Supplemental Agreement to this Agreement, duly authorized by City Council Resolution, Consultant's total compensation hereunder shall not exceed $16,500.00 including any Reimbursable Expenses. This amount represents the absolute limit of City's liability to Consultant unless changed by additional Supplemental Agreement hereto. Deductions. No deductions shall be made from Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions. No additions shall be made to Consultant's compensation based upon claims, whether paid by City or denied. 2 Supplemental Agreements. The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council Resolution, if 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 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. 1.06 TIMETABLES Unless otherwise indicated to Consultant in writing by City, or unless Consultant is unreasonably delayed in the orderly progress of its work by forces beyond Consultant's control, the following timetable shall apply: Through and including June 5, 2003, or as otherwise extended as authorized herein. 1.07 TERMS OF PAYMENT; REIMBURSABLE EXPENSES Invoices. To receive payment for services, Consultant shall prepare and submit a series of monthly invoices in a form acceptable to City. Each invoice for professional services shall track the "Scope of Services" category herein, shall state and detail the services performed, the individual performing such services, the dates and times of performance of such services, and documentation for each such service performed. All payments to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by City. Such invoices shall conform to the schedule of services and costs in connection therewith. All Reimbursable Expenses shall be clearly shown. Should additional backup material be requested by City, Consultant shall comply promptly with such request. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. Payment of Invoices. 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 invoices, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.08 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 City or because of amounts which City has a right to withhold under this Agreement or state law. 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. Offsets. City may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. 3 Reimbursable Expenses. Payment for customary reimbursable expenses hereunder shall not exceed the maximum sum of $1,500.00. City shall pay Consultant for reimbursable expenses on a monthly basis, as invoiced and documented, at actual cost. Customary reimbursable expenses shall include such items as the following: a. Reprographic /reproduction services; b. Binding charges; c. Computer and printing service bureau charges; d. Facsimile charges; e. Postal/delivery services (as necessary to complete services in a timely manner); f. Non -local transportation at the rate of $0.36 per mile; g. Long- distance telecommunications; and h. Meals and lodging. 1.08 PROMPT PAYMENT POLICY In accordance with Chapter2251, 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, 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 or services, whichever is later. Consultant may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this policy does not apply to payments made by City in the event: 1. There is a bona fide dispute between City and Consultant concerning the services performed that causes the payment to be late; or 2. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or 3. 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 4. The invoice is not mailed to City in strict accordance with instructions, if any, on any purchase order or this Agreement. 1.09 NON - APPROPRIATION 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 Contractor a written notice of termination at the end of its then - current fiscal year. 4 1.10 TERMINATION OR DEFAULT Termination. In connection with the work outlined in this Agreement, it is agreed and fully understood by Consultant that City may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the convenience of City, upon fifteen (15) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work and services being performed under this Agreement shall cease. Consultant shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. Unless otherwise specified herein, all documents, materials, data, designs and work related to the Project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably organized form without restriction on future use. Should City subsequently contract with a new consultant for continuation of services, Consultant shall cooperate in providing information. Default. Nothing contained in the preceding paragraph shall require City to pay for any work which is unsatisfactory as determined by City or which is not submitted in compliance with the terms of this Agreement. City shall not be required to make any payments to Consultant when Consultant is in default under this Agreement, nor shall this paragraph constitute a waiver of any right, at law and at equity, which City may have if Consultant is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. 1.11 CITY'S RESPONSIBILITIES Full information. City shall provide full information regarding its requirements. City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required, if any, to enable Consultant to provide the services called for. City shall cause its employees and any third parties who are otherwise assisting, advising or representing City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by City and its employees and agents as accurate and complete. Consultant may rely upon any written directions provided by City and its employees and agents concerning provision of services. Designate representatives. City shall designate, when necessary, representatives authorized to act in its behalf. City shall examine documents submitted by Consultant and render decisions pertaining thereto promptly to avoid unreasonable delay in the orderly progress of Consultant's work. 1.12 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. Consultant and City agree to the following rights consistent with an independent contractor relationship: 5 1. Consultant has the right to perform services for others during the term of this Agreement; and 2. Consultant has the sole right to control and direct the means, manner and method by which services required by this Agreement will be performed; and 3. Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement; and 4. 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; and 5. 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; and 6. City shall not require Consultant or Consultant's employees or subcontractors to devote full time to performing the services required by this Agreement; and 7. 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. 1.13 CONFIDENTIALITY; DISPOSITION OF MATERIALS Each party shall take reasonable measures to preserve the confidentiality of any proprietary or confidential information provided to it in connection with this engagement, provided that no claim may be made for any failure to protect information that occurs more than two (2) years after the termination or expiration of this Agreement. At the conclusion of the engagement, upon written request, each party shall return to the other all materials, data and documents that have been provided to the other party, except that Consultant may retain one (1) copy of City's materials for its archival purposes, subject to Consultant's confidentiality obligations hereunder. City shall retain ownership of all data and materials provided by it to Consultant. Original drawings shall remain the property of Consultant. Consultant shall provide City with one (1) signed set of reproducibles and one (1) full set of digital file copies. 1.14 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement and the Scope of Services, then and in that event City shall give written notification to Consultant; 6 thereafter, Consultant shall either (a) promptly re- perform such services to City's satisfaction at no additional charge, or (b) promptly refund the portion of the fees paid for such services. In the event that re- performance of services or refund of applicable fees would not provide an adequate remedy to City for damages arising from the performance, nonperformance or breach of this Agreement and the appended Scope of Services, then and in that event Consultant's maximum total liability, including that of any employee, affiliate, agent or contractor, relating to its services, regardless of the cause of action, shall be limited to direct damages in an amount not to exceed the total fees payable under this Agreement. The foregoing limitation of liability shall not apply to the extent that any liability arises from the gross negligence or willful misconduct of Consultant, its employees, affiliates, agents or contractors, or from bodily injury, death of any person, or damage to any real or tangible personal property. Neither party shall be liable for any indirect, special or consequential damages. 1.15 INDEMNIFICATION Consultant agrees to hold harmless, defend, and indemnify City for and from any third party claim or liability (including reasonable defense costs and attorneys' fees) to the extent arising from or in connection with the negligence of Consultant or its employees or agents in the course of performing services. The limitation of liability set forth in Section 1.14 herein applies to Consultant's indemnity obligations pursuant to this Section 1.15, but the limitation shall not apply to the extent that any liability arises from the gross negligence or willful misconduct of Consultant, its employees, affiliates, agents or contractors or from bodily injury, death of any person, of damage to any real or tangible personal property. Except to the extent that Consultant is obligated to indemnify City, City shall indemnify and hold Consultant, its employees, affiliates or agents harmless from any third party claim or liability (including reasonable defense costs and attorneys' fees) to the extent arising from or in connection with the services performed by Consultant or City's use thereof. 1.16 INSURANCE Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of Five Hundred Thousand Dollars ($500,000.00) from a company authorized to do insurance business in Texas and otherwise acceptable to City. Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these 7 requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non - renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation, non - renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) Terms "City" or "City ofRound Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and agents in their official capacities, or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self- Insured Retentions of whatever nature. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. Such Certificates of Insurance are evidenced as Exhibit "B" entitled "Certificates of Insurance." 1.17 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Compliance with Laws. 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 8 by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits and licenses required in the performance of the services contracted for herein. Taxes. Consultant will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. 1.18 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 for the services required hereunder. 1.19 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 shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 1.20 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: 1. Withhold FICA from Consultant's payments or make FICA payments on Consultant's behalf; or 2. Make state and/or federal unemployment compensation contributions on Consultant's behalf; or 3. Withhold state or federal income tax from Consultant's payments. 1.21 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; 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. 9 Notice to Consultant: Prime Strategies, Inc. 1508 South Lamar Boulevard Austin, TX 78704 Notice to City: City Manager 221 East Main Street Round Rock, TX 78664 1.23 EXCLUSIVE AGREEMENT 1.24 DISPUTE RESOLUTION AND TO: City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.22 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and iflegal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. This document, and all appended documents, constitutes the entire Agreement between Consultant and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing. If a dispute or claim arises under this Agreement, the parties agree to first try to resolve the dispute or claim 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 or claim will 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. 10 1.25 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 of this Agreement 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 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. 1.26 MISCELLANEOUS PROVISIONS Time is of the Essence. Consultant understands and agrees that time is of the essence and that any failure of Consultant to complete the services required under this Agreement within the agreed schedule 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 in these circumstances, City may withhold, to the extent of such damage, Consultant's payments hereunder without waiver of any of City's additional legal rights or remedies. City shall render decisions pertaining to Consultant's services promptly to avoid unreasonable delays in the orderly progress of Consultant's work. Force Majeure. Neither City nor Consultant shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible or circumstances beyond its control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. IN WITNESS WHEREOF, City and Consultant have executed this Agreement on the dates indicated. CITY OF ROUND ROCK, TEXAS ATTEST: By: Nyle Maxwell, Mayor Christine R. Martinez, City Secretary Date Signed: Date Signed: 11 PRIME STRATEGIES, INC. By: Michael J. Weaver, Principal Date Signed: ATTACHMENTS Exhibit "A ": Scope of Services Exhibit `B ": Certificates of Insurance 12 EXHIBIT "A" SCOPE OF SERVICES Task 1. Assist City and its lobbyists with its support of a legislative funding initiative for the Round Rock Higher Education Center. Task 2. Assist City, in coordination with the Chamber and Momentum, in its development of a comprehensive community support/public involvement effort promoting the Round Rock Higher Education Center. Task 3. Assist City in developing and implementing a comprehensive schedule for the approval and construction of the first phase of the Round Rock Higher Education Center, slated for opening Fall 2005. Hourly Billing Rate Schedule Principal $175.00 Senior Engineer /Senior Planner $130.00 - $150.00 Project Manager /Planner $100.00 - $110.00 Technical Support $ 75.00 - $ 90.00 Administrative Support $ 50.00 - $ 70.00 TOTAL FOR ABOVE SERVICES Not to exceed $15,000.00 13 EXHIBIT `B" CERTIFICATES OF INSURANCE 14 DATE: February 7, 2003 SUBJECT: City Council Meeting — February 13, 2003 ITEM: 13.E.1. Consider a resolution authorizing the Mayor to execute a Professional Services Agreement with Prime Strategies, Inc. for professional services associated with the Round Rock Higher Education Center. Resource: Jim Nuse, City Manager History: The Location of a permanent campus for the Round Rock Higher Education Center (RRHEC) has been identified as a priority for the Round Rock community. Prime Strategies will provide professional services in support of the legislative funding initiative for the RRHEC. Funding: Cost: Not to exceed $16,500 Source of funds: General Fund Outside Resources: N/A Public Comment: N/A Sponsor: N/A