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CM-06-07-146
CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES FOR STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION WITH RCC CONSULTANTS, INC. THIS AGREEMENT for professional consulting services relates to the City of Round Rock's review of potential upgrades to the CWICS (County Wide Inter Agency Communications System) regional trunked 800 MHz radio system (the "Agreement"). This 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 RCC Consultants, Inc. (the "Consultant"), with offices located at 10700 North Freeway, Suite 610, Houston, Texas 77037. RECITALS: WHEREAS, City is currently a member of the Williamson County regional trunked 800 MHz radio system, known as the County Wide Inter Agency Communications System or CWICS. System partners and radio systems users collectively include Williamson County Sheriff's Office, Williamson County Fire/EMS, County Constables, County Emergency Management and County Services as well as Police and Fire Departments of Round Rock, Georgetown, and Cedar Park. Round Rock City Services agencies also utilize the system, as does the City of Hutto. CWICS' neighbor, from a radio communications perspective, is the Austin -Travis County Regional Radio system, an 800 MHz trunked P25 Motorola SmartZone system that provides two-way radio communications for the City of Austin and Travis County agencies as well as a number of other cities and agencies within Travis County. The City of Round Rock and CWICS have been exploring opportunities to upgrade and improve their radio communications. In concert with this initiative, representatives of the Austin -Travis County trunked system and Motorola have offered potential system solutions for the City of Round Rock's consideration. Consequently, the City of Round Rock has requested proposals that address the review of the upgrading of the CWICS system to Project 25 operation; and WHEREAS, City has determined that there is a need for the delineated services; and WHEREAS, City desires to contract for such professional 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: 1.01 EFFECTIVE DATE, DURATION, AND TERM 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. 00102297/jkg The term of this Agreement shall be until full and satisfactory completion of the work specified herein is achieved, but in no event later than six (6) months from the effective date of this Agreement. City reserves the right to review the Agreement at any time, including at the end of any deliverable or phase or task, and may elect to terminate the Agreement with or without cause or may elect to continue. 1.02 CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant a total sum not to exceed Thirty-eight Thousand Nine Hundred Seventy-nine and 50/100 Dollars ($38,979.50), in payment for services and the Scope of Services deliverables as delineated in Exhibit "A" attached hereto and incorporated herein for all purposes. This amount includes expenses which are deemed reimbursable under this Agreement as delineated in Section 1.04. 1.03 SCOPE OF SERVICES For purposes of this Agreement, Consultant has issued its Scope of Services for the assignments delineated herein, and such Scope of Services is delineated in Exhibit "A" attached hereto and incorporated herein for all purposes. This Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Consultant shall satisfactorily provide all services and deliverables described under the referenced Scope of Services within the contract term specified in Section 1.01. 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 this Agreement and with the referenced Scope of Services. Consultant shall perform its services in a professional and workmanlike manner. Consultant shall not undertake work that is beyond the Scope of Services set forth in Exhibit "A." However, either party may make written requests for changes to the Scope of Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 1.05 hereof. 1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES Payment for Services: In consideration for the consulting services to be performed by Consultant, City agrees to pay Consultant as follows: Fees for the listed deliverables in the total amount of Thirty-eight Thousand Nine Hundred Seventy-nine and 50/100 Dollars ($38,979.50) shall be paid by City in the following manner: 2 To receive payment, Consultant shall submit detailed monthly invoices to City for services rendered as delineated in Exhibit "A." If City has any dispute with services performed, then City shall notify Consultant within thirty (30) days after receipt of invoice. In the event of any dispute regarding the services performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide City with an appropriate credit. Payment for Reimbursable Expenses: There shall be no additional payment authorized for reimbursable expenses, as Consultant has represented that all such contemplated expenses have been included in its professional fee. Not -to -Exceed Total Payment for Services: Unless subsequently changed by Supplemental Agreement to this Agreement, Consultant's total compensation for consulting services hereunder shall not exceed Thirty-eight Thousand Nine Hundred Seventy-nine and 50/100 Dollars ($38,979.50). This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's professional fees for work done on behalf of City. Deductions: No deductions shall be made for 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 project claims, whether paid by the City or denied. 1.05 SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or by the City Manager, if 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 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment following delivery of all deliverables, Consultant shall prepare and submit detailed monthly progress invoices to City, in accordance with the delineation contained herein, for services rendered. Such invoices for professional services shall track the referenced Scope of Services, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by City. Such invoices shall conform to the schedule of services and costs in connection therewith. 3 Should additional backup material be requested by City relative to service deliverables, Consultant shall comply promptly. 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 an invoice, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.10 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. 1.07 REQUIRED DRAFT PRESENTATION AND FINAL PRESENTATION Consultant agrees to provide City with a draft presentation and a detailed final presentation, along with accompanying written reports if requested, together with all information gathered and materials developed during the course of the project. 1.08 LIMITATION TO SCOPE OF WORK Consultant and City agree that the Scope of Services to be performed is enumerated in Exhibit "A" herein, and may not be changed without the express written agreement of the parties. Notwithstanding anything herein to the contrary, the parties agree that City retains absolute discretion and authority for all funding decisions, such to be based solely on criteria accepted by City which may be influenced by but not be dependent on Consultant's work. 1.09 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by its budget for the fiscal year in question. City may effect such termination by giving Consultant written notice of termination at the end of its then -current fiscal year. 1.10 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, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Consultant may charge a late fee of one percent (1.5%) for payments not made in accordance with this prompt payment policy; however, this policy does not apply to payments made by the City in the event: 4 (1) There is a bona fide dispute between City and Consultant concerning the supplies, materials, or equipment delivered or the services performed which 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 the parties and subcontractors or between a subcontractor and its suppliers concerning supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or (4) Invoices are not mailed to City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 1.11 TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that City may terminate this Agreement 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 being performed under this Agreement shall cease. Consultant shall invoice 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 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 service on the project, Consultant shall cooperate in providing information. Termination of this Agreement shall extinguish all rights, duties, and obligations of the parties 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 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. Default: City may terminate this Agreement, in whole or in part, for default if City provides Consultant with written notice of such default and Consultant fails to cure such default to the satisfaction of City within ten (10) business days of receipt of such notice (or a greater time if permitted by City). If Consultant defaults in performance of this Agreement and if City terminates this Agreement for such default, then 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 City, the cost to City of employing another firm to complete the useable work, and other factors 5 will affect the value to City of the work performed at the time of default. Consultant shall not 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 City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained herein shall require City to pay for any work deemed unsatisfactory by City, or which is not submitted in compliance with the terms hereof. 1.12 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not City's employee. Consultant's employees or subcontractors are not 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 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 services required by this Agreement will be performed. (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 City shall not hire, supervise, or pay assistants to help Consultant. (5) Neither Consultant nor its employees or subcontractors shall receive training from City in skills necessary to perform services required by this Agreement. (6) City shall not require Consultant or its employees or subcontractors to devote full time to performing the services required by this Agreement. (7) Neither Consultant nor its employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City. 1.13 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither 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 6 this Agreement. This provision shall not prohibit the hiring of any person who was solicited solely through a newspaper advertisement or other general solicitation. 1.14 CITY'S RESPONSIBILITIES Full information: City shall provide full information regarding project requirements. City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required 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 directives provided by City or its designated representative concerning provision of services. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. City shall furnish information which includes but is not limited to access, preliminary information, pertinent correspondence with other local municipal and planning officials, previous market analyses or feasibility studies, and other pertinent information. Consultant agrees, within ten (10) days of the effective date of this Agreement, to provide City with a comprehensive and detailed information request list. 1.15 CONFIDENTIALITY; AND MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by 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 City is subject to the Texas Public Information Act and its duties run in accordance therewith. All data relating specifically to 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. 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. 7 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 a 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 party with prompt written notice and allows the other party to seek a restraining order or other appropriate relief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Neither City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for City and delivered to City under the terms of this Agreement (the "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 the Deliverables). Consultant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to Consultant. 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. 1.16 WARRANTIES Consultant warrants that all services performed hereunder shall be consistent with generally prevailing professional industry standards, and shall be performed in a professional and workmanlike manner. Consultant shall re -perform any work not in compliance herewith. 1.17 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to City's satisfaction at no additional charge, or (b) if such deficient services cannot be cured within the cure period set forth herein in Section 1.11, then this Agreement may be terminated for default. 8 In no event will Consultant be liable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by City, its directors, employees or agents. In no event shall Consultant be liable to City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 1.18 INDEMNIFICATION Consultant and City each agree to indemnify, defend and hold harmless the other from and against any and all amounts payable under any judgment, verdict, court order or settlement for death or bodily injury or the damage to or loss or destruction of any real or tangible personal property to the extent arising out of the indemnitor's negligence in the performance of this Agreement. Consultant agrees to indemnify, defend and hold harmless City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to City in connection with the performance of this Agreement. Should City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for the City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non -infringing while yielding substantially equivalent results. If neither of the above options are or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, City shall return such deliverables provided, and Consultant will refund to City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based upon (1) designs provided by or at the direction of City or (2) specifications or other information provided by or at the direction of City; or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. The indemnified party shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through counsel of its own choosing. 9 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 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. 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 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, City shall provide Consultant with a certificate from the Texas State Comptroller indicating that City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 1.21 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 One Million Dollars 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 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. 10 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 twenty-four (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 "the City" or "the City of Round 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. (5) Consultant and City shall mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. 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 City. 1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Consultant, its consultants, agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, with 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 such permits, licenses, marks and rights shall belong solely to City at the expiration of the term of this Agreement. 11 1.23 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 under this Agreement. 1.24 DESIGNATION OF REPRESENTATIVES City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Rick White, Round Rock Police Department City of Round Rock 615 East Palm Valley Blvd. Round Rock, Texas 78664 (512) 218-5524 Email: rwhite(ueround-rock.tx.us Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Gregory A. Munchrath, P.E. Senior Vice President and Western Division Manager RCC Consultants, Inc. 10700 North Freeway, Suite 610 Houston, Texas 77037 (281)999-1441 1.25 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 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: RCC Consultants, Inc. 10700 North Freeway, Suite 610 Houston, Texas 77037 12 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 City and Consultant. 1.26 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of Texas. 1.27 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 understand and 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. 1.28 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall select one mediator and Consultant shall select one mediator and those two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. 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. 13 1.29 FORCE MAJEURE Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or a 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. Consultant shall not be deemed to be in default of its obligations to City if its failure to perform or its substantial delay in performance is due to the City's failure to timely provide requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 1.30 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.31 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 according to generally accepted business/industry practices. 1.32 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing and signed by an authorized representative of the party against whom such waiver or discharge is sought to be enforced. This Agreement may be executed in multiple counterparts, which taken together shall be 14 considered one original. City agrees to provide Consultant with one fully executed original. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of By: Title: and Rock, Texas Date Signed: RCC Consultants, Inc. By: Title: Date Signed: / 'c( 15 Attest: JIM) coki6," Christine R. Martinez, City Secretary For Ci , Approve s as to Form: !i 11 Stephan . Sheets, City Attorney EXHIBIT nAn Consulting Services Scope of Work Strategic Plan for Radio System Migration Revision 1 Presented To: City of Round Rock Texas By: cc RCC Consultants, Inc. 10700 North Freeway, Suite 610 Houston, TX 77037-1146 281.999.1441 June 27, 2006 NOTICE The information in this proposal contain business, technical and/or financial information, which are trade secrets, or information for which disclosure would result in substantial injury to the Proposer's competitive position. The Proposer requests that such data be used only for the evaluation of the response. © COPYRIGHT RCC CONSULTANTS, INC. ALL RIGHTS RESERVED. CITY OF ROUND ROCK, TX STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION RCC's Understanding The City of Round Rock is currently a member of the Williamson County regional trunked 800 MHz radio system, known as the County Wide Inter Agency Communications System or CWICS. System partners and radio systems users collectively include the Williamson County Sheriff's Office, Williamson County Fire/EMS, County Constables, County Emergency Management and County Services as well as the Police and Fire Departments of Round Rock, Georgetown, and Cedar Park. Round Rock City Services agencies also utilize the system as does the City of Hutto. CWICS' neighbor to the south, from a radio communications perspective, is the Austin - Travis County Regional Radio system, an 800 MHz trunked P25 Motorola SmartZone system that provides two-way radio communications for the City of Austin and Travis County agencies as well as a number of other cities and agencies within Travis County. The City of Round Rock and CWICS have been exploring several opportunities to upgrade and improve their radio communications. In concert with this initiative, representatives of the Austin -Travis County trunked system and Motorola have offered potential system solutions for the City's consideration. Consequently, the City of Round Rock has requested that RCC provide this proposal that addresses the review of the upgrading of the CWICS system to Project 25 operation. The following scope of work has been prepared at the City's direction. Project Scope of Work RCC's proposed scope of work has been prepared in response to the City's request for assistance. The following work plan is based upon the premise that the City of Round Rock is considering participating in a Motorola Project 25 upgrade to the existing County Wide Inter Agency Communication System (CWICS) trunked radio system. Such an upgrade will result in specific technical, operational, managerial issues and cost factors that need evaluation and discussion. Although there may be other system alternatives, at the City's request, the following work plan specifically addresses only CWICS system upgrade option. RCC understands that the City has committed to giving CWICS & the City of Austin a decision by the end of July. Task 1—Project Initiation & Orientation The purpose of Task 1 is to initiate the project and conduct a project kickoff and orientation meeting to familiarize the City's Project Team and project participants with the scope of work and project schedule. RCC will review the project schedule, identify the types of information that will be requested from the participants, and establish appropriate lines of communication between the participating agencies and RCC. RCC will conduct and participate in the project kickoff meeting. r7 ZCC RCC CONSULTANTS, INC. PAGE 3 CITY OF ROUND ROCK, TX STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION At this point RCC is planning to conduct the kick-off meeting and site visits (Task 2) and an interview session (Task 3) for the participating agencies over a two day period. This will help maximize the use of RCC personnel while on-site, and is intended to help minimize travel expenses and develop needed information in an expedited manner. Task 2—Survey of Existing Systems The purpose of Task 2 will be to collect current information necessary for a thorough understanding of the existing radio system that serves the City. As part of this effort, RCC will survey and assess the physical condition, and functionality, of selected currently operated Motorola trunked radio system facilities. RCC will conduct site visits to selected existing system sites, as well as the Round Rock dispatch facilities. During the site assessments, RCC will also examine the existing equipment shelters, tower space, auxiliary power systems, and similar items at the sites being visited that may be impacted by this project. RCC will also review relevant documentation on the system that Round Rock may be able to provide. Task 3—Conduct User Needs Analysis RCC will conduct an on-site user interview session to determine the two-way radio requirements that must be met by any new or upgraded system developed to support the City of Round Rock agencies. RCC is proposing to conduct a single joint agency interview session on-site in Round Rock. The purpose of this interview session will be to meet with City staff and collect requirements information from the participating agencies and for RCC to share relevant information about Motorola's latest P25 trunked radio system capabilities. The joint interview session tentatively includes the following groups. City of Round Rock • Round Rock Police Department • Round Rock Fire Department • Round Rock City Services The joint interview session will provide an opportunity for the participating agencies to provide input regarding their operational and functional requirements. As part of the meeting, RCC will discuss the level radio coverage requirements that is required for the upgraded trunked radio system solution. Radio coverage requirements will typically be addressed at four levels: 1) Mobile radio, 2) Portable radio on -the- street, 3) Portable radio in residential structures, and 4) Portable radio in medium density buildings. r� ZCC RCC CONSULTANTS, INC. REVISION 3 - 6/29/2006 PAGE 4 CITY OF ROUND ROCK, TX STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION In addition to the interview session noted above, RCC may contact Williamson County, the Austin -Travis County Regional Radio System representatives and local Motorola representatives, if needed to fully understand the CWICS offer on the table. Task 4—Review & Evaluate CWICS System Upgrade Proposal Once Round Rock's requirements for the new system have been clearly defined, RCC will conduct a thorough analysis of the CWICS system upgrade proposal. The purpose of the analysis will be to determine whether or not the proposed system configuration is capable of meeting the requirements outlined by the City of Round Rock Project Team and address the pros & cons of the offer. RCC will utilize its extensive experience in similar Motorola projects to determine whether or not the proposed system modifications are appropriate and necessary to upgrade the current system. As part of this analysis, RCC will also review the proposed system pricing (if available) to determine whether it is appropriate and consistent with pricing seen in some of RCC's Motorola projects of similar scope. RCC is adept at evaluating such proposals and will help Round Rock evaluate the advantages, disadvantages of participating in the system replacement. Task 5—Prepare and Present Findings & Recommendations Once RCC has completed an analysis of the CWICS upgrade plan our staff will meet with the City's project team to discuss our findings & recommendations. RCC will prepare a PowerPoint presentation containing those findings & recommendations. The presentation will include a review of the current radio system and the CWICS system replacement proposal. Some of the issues to be addressed include: ➢ The radio coverage requirements of the City ➢ The immediate and long term concems regarding the changes recommended and/or required by the CWICS system replacement ➢ The operational aspects including a review of the system failure modes and their impact on system performance ➢ The capability of the CWICS system replacement to accommodate new technology and new spectrum allocations ➢ The long-term growth and interoperability capabilities to help ensure that the radio communication needs of the City of Round Rock users are met. ➢ A review of the costs associated with the CWICS solution including initial purchase as well as on-going cost related to maintenance and general operation ➢ Pros & cons of the CWICS system replacement offer r7 ZCC RCC CONSULTANTS, INC. REVISION 3 - 6/29/2006 PAGE 5 CITY OF ROUND ROCK, TX STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION ➢ The governance aspects related to Round Rock's position in a multi -agency, multi -county regional radio system The presentation will be provided in a PowerPoint format on CD-ROM media. Printed copies for the Project Team can be provided if needed. RCC will meet with the City's Project Team to review and discuss the presentation to allow participating members to ask questions as appropriate. RCC will provide up to eight (8) printed copies of the presentation. Professional Fees & Out -of -Pocket Expenses RCC's cost proposal is based upon the amount of time and level of skill required to successfully complete the proposed scope of work, which has been developed to meet the needs of the City of Round Rock, as RCC understands them. Costs for this project reflect the scope of work outlined in the work plan. The City may elect to increase or decrease the scope of work proposed, at which time the contract price between the City and RCC shall be negotiated and adjusted accordingly. Payment Schedule RCC proposes to provide the City of Round Rock a progress -billing invoice at the end of the first month of the project for the work conducted in the first month. Subsequent progress billings will be submitted monthly based on the work performed during that month. Payments are due within thirty (30) days of invoice. Payments not paid within 30 days will be assessed a late fee of 1.5% per month. Change Orders and Reimbursable Expenses Should the City of Round Rock, at any time during the project, desire services that are outside the agreed upon scope of work, RCC will prepare a quotation outlining the estimated effort, resources required, and cost for the requested service. Upon the City's approval of the quotation, RCC will provide the desired services at the agreed upon cost. Anticipated expenses necessary for the execution of the project have been estimated and included in RCC's price proposal. Generally, expenses include lodging, meals, airfares, rental equipment, rental vehicles, highway mileage at the most current IRS rate, printing and inordinate copying costs and shipping. Air travel, if required will be by standard coach and advanced fair discounts will be sought when practical. Unexpected out-of-pocket reimbursable expenses will be in addition to those estimated and will be billed at actual cost plus RCC's standard administrative fee. When possible, RCC will notify the City when any unanticipated expenditures are required. RCC will make every effort to ensure that such expenses are reasonable and necessary. r7 ZCC RCC CONSULTANTS, INC. REVISION 3 - 6/29/2006 PAGE 6 CITY OF ROUND ROCK, TX STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION Summary of Professional Fees & Expenses RCC is proposing a block of professional consulting time and travel expenses in the amounts as shown below to address the work outline in the scope of work included in this proposal. Professional fees and expenses to complete the enclosed scope of work shall not exceed $38,979.50. In order to ensure that the needs of the City of Round Rock are being met, it is prudent for the City to seek independent professional assistance prior to selecting a system alternative that it will live with for the next 10 — 15 years. The basis for RCC's cost proposal is provided below. TASK SHEET (Included in Cost Proposal to Client) 2CC Task# - 1 2 3 4 5A 5B 5C 5D RCC CONSULTANTS, INC. TECHNICAL SERVICES CONTRACT Scope of Work - Evaluation of CWICS Option City of Round Rock, TX Phase I - Plan Development June 29, 2006 Description Project initiation & orientation Survey of Existing System & Data Collection Conduct User Needs Analysis Review & Evaluate System Upgrade Proposals Develop Strategic Plan Present Draft Presentation Complete Final Presentation Present Final Presentation Hours 18 26 24 32 64 9 20 9 • ON SITE TASKS TOTAL 202 ZCC RCC CONSULTANTS, INC. REVISION 3 - 6/29/2006 PAGE 7 CITY OF ROUND ROCK, TX STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION Pricing Assumptions - General • Professional fees are based on the estimated hours, travel, and expenses included in the pricing for the scope of work defined in this document. This may be adjusted by agreement by both parties if additional hours are needed and/or the scope of work is modified. Travel, expenses, or additional approved hours required for unforeseen circumstances beyond RCC's control would be billed on a time and materials basis. • The fees and rates contained herein shall remain valid for 90 days from the date of this proposal. • Hourly rates for professional fees beyond the scope of work will be based on RCC prevailing standard rates. • Any meetings required beyond those specifically addressed in RCC's work plan are subject to further negotiations of the scope of work. Attendance at regular (i.e. weekly, monthly, etc.) status meetings has not been included as part of this effort. RCC personnel will be on-site for the project kickoff meeting and to conduct meetings and or site visits as outlined in the enclosed scope of work. • Electrical, mechanical, structural, civil, or other design engineering services not specifically indicated in this proposal have not been proposed. • In order to be more responsive to the City's needs, RCC respectfully reserves the right to move professional fees and expenses between project tasks as needed to complete the scope of work, as long as the total amount billed to the City does not exceed the total contract amount for fees and expenses. • Additional terms and conditions are subject to the executed contract. • Please note that any frequency coordination and licensing fees to the appropriate licensing entities, whether to the FCC or to the coordinating agency, must be paid by the licensee. RCC does not envision any FCC licensing effort in this phase of the project. • For clarification purposes, Regulatory effort in this Phase of the project does not include local planning or zoning efforts, commercial interference analysis, or analysis of the affects of new tower sites on existing AM transmission facilities. Deliverables • The deliverable for the project will be the final report in PowerPoint format as noted in the Project Work Plan. r7 `ZCC RCC CONSULTANTS, INC. REVISION 3 - 6/29/2006 PAGE 8 CITY OF ROUND ROCK, TX STRATEGIC PLAN FOR RADIO SYSTEM MIGRATION Summary RCC appreciates this opportunity to submit this proposal to the City of Round Rock. We believe that RCC is best qualified to assist the City in this important endeavor. Our twenty- three years of experience in the development, implementation and optimization of mission - critical wireless voice and data communications systems throughout the United States, and our in-depth understanding of Public Safety systems and operations, will be important assets to the City and the participating agencies. RCC's extensive experience with Motorola as a vendor, and Motorola system technologies under consideration by the City of Round Rock will help facilitate the transfer of important information to the City's Project Team so that they can make appropriate and informed decisions. Mr. Gregory A. Munchrath, P.E., will be RCC's point of contact for this proposal. Mr. Munchrath Is located in our Western Regional Office in Houston, and can be reached by phone or email as shown in our cover letter. r2CC RCC CONSULTANTS, INC. REVISION 3 - 6/29/2006 PAGE 9 Request for City Council/City Manager Action 10 i City Council ID) City Manager Submit completed form for all City Manager and City Council approvals. For Administration Use ONLY Recei Tag #lry Original Documents Received: Department Name: Contact Person: Project Manager/Resource: Project Coordinator: Assigned Attorney: Police Department Rick White/Brenda Craytor Rick White Rick White J. Kaye Gayle Council or City Manager Approval Date: Blue Sheet Wording Project Name: Radio System Consulting Agreement Contractor/Vendor: Funding Source: Amount: Account Number: RCC Consultants Inc. Self -Finance Construction $38,979.50 This contract provides for consulting services to allow the City of Round Rock to perform its due diligence regarding its participation in the Countywide Integrated Communications System (CWICS) upgrade that is planned to be complete by January 2008. That upgrade would transform the current CWICS system in use by Williamson County and the cities of Round Rock, Georgetown, and Cedar Park with a digital system linked to the Austin/Travis County Regional Radio System. Under this contract, RCC Consultants Inc. would survey the existing CWICS system, evaluate the city's radio communications needs, review the proposed CWICS system upgrade, and present a series of findings and recommendations regarding the City's participation in this system. Finance Information Is Funding Required? 0 0 0 QPurchasing/Service Agreemem Yes No Initial Construction Contras Construction Contract Amendmen # Change Order Change in Quantity Unforeseen Circumstances Initial Professional Services Agreemen Supplemental Professional Svcs. A # I� Purchase Order Item(s) to be purchased Finance Approval Finance Finance Purchasing EJBudget Other (Please clearly identify action on lines below L. Olsen N/A E. Wilson N/A CYD Amount 38,979.50 Date 7/17/2006 Date 7/17/2006 Date Date 7/17/2006 Required for Submission of ALL City Council and City Manager Items Project Mgr. Signature: Rick White Date: 17 -Jul -06 Dept. Director Signature: Bryan Williams Date: 7/17/2006 City Attorney Signature*: is Bowden got this from J Kaye Gayle Date: 7/10/2006 City Manager Signature: Date: /1 * Lega�p royal is required for all items. Updated 2/16/06