CM-12-01-014ROUND ROCK, TEXAS
PURRIMPASSONPROWNII
Item Caption:
CM-12y01-01RECEIVED
JAN z s eon
City Manager Approval Form
Consider executing "Agreement for Human Resources Consulting Services" with Management Education
Group.
Approval Date: January 27, 2012
Department Name: Administration Department
Project Manager: Laurie Hadley, Assistant City Manager
Assigned Attorney: N/A
Item Summary:
No. of Originals Submitted: 2
Project Name: Customer Service Training
Cost: $5,000
Source of Funds: General Fund
Source of Funds (if applicable): General Fund
Account Number: 5434 - split amongst Finance departments
Finance Director Approval: Cheryl Delaney
Date: 1/25/12
Department Director Approval: L. Hadley Date: 1/25/12
**Electronic signature by the Director is acceptable. Please only submit ONE approval form per item. **
CIP 111 111 Budget Purchasing 111 Accounting E
N/A OK N/A OK N/A OK N/A OK
ITEMS WILL NOT BE PLACED ON THE COUNCIL OR CM AGENDA W/OUT PRIOR FINANCE AND/OR LEGAL APPROVAL
REV. 6/20/11
CITY OF ROUND ROCK
AGREEMENT FOR HUMAN RESOURCES CONSULTING SERVICES
WITH MANAGEMENT EDUCATION GROUP
THIS AGREEMENT is made and entered into on this the 20th day of the month of
January, 2012, by and between the City of Round Rock, a Texas home -rule municipal
corporation, with offices located at 221 East Main Street, Round Rock, Texas 78664-5299
(hereinafter referred to as "City"), and Management Education Group, with offices located at
1211 North Dustin Lane, Chandler, Arizona 85226 (hereinafter referred to as "Consultant").
RECITALS:
WHEREAS, City desires to contract for Consultant's assistance in providing consulting
services support to the Human Resources Department of the City of Round Rock; 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 for three (3) months from the effective date hereof.
Renewal, at the sole and unfettered election of City, is not prohibited.
2.01 SCOPE OF SERVICES
Consultant shall satisfactorily provide all services described in this section and in this
Agreement, as follows: Consultant shall at all times be available, via telephone and email on an
on-call basis, and shall provide professional guidance and support to the City of Round Rock
Human Resources Department. Services shall include but not be limited to Human Resource
policy clarification, performance management, training and coaching matters, conflict
management and issue resolution, and general consultation. 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
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with 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.
3.01 PAYMENT FOR SERVICES
Payment for Basic Services: In consideration for the consulting services to be
performed by Consultant, City agrees to pay Consultant for actual work performed in an amount
not to exceed the sum of Five Thousand and No/100 Dollars ($5,000.00). No reimbursable
expenses are authorized under this Agreement.
Unless subsequently changed by additional Supplemental Agreement to this Agreement,
duly authorized by City Council or City Manager action, Consultant's total compensation
hereunder shall not exceed $5,000.00. This amount represents the absolute limit of City's
liability to Consultant hereunder unless same shall be 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 Project
claims, whether paid by City or denied.
4.01 SUPPLEMENTAL AGREEMENTS
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or City Manager action, 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.
5.01 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 structure and deliverable due dates shall apply: three (3) months from
date of execution hereof.
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6.01 INVOICING; TERMS OF PAYMENT
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, and shall state and detail the services performed,
along with 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. 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 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.
No Reimbursable Expenses. No additional reimbursable expenses, over and above the
total payment amount of $5,000.00, are authorized hereunder.
7.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. Consultant may charge interest on an overdue payment at the "rate in effect" on September
1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
A. There is a bona fide dispute between City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
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B. There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
C. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
D. The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
8.01 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 Consultant a written notice of termination at the end of its then -current fiscal year.
9.01 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 labor 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 data, designs and work related to this Agreement 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.
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.
10.01 CITY'S RESPONSIBILITIES
Full information. City shall provide full information regarding necessary 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
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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.
11.01 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, not City's employee. Consultant's employees or
subcontractors are not City's employees. This Agreement does not create a partnership
relationship. Neither party has authority to enter into contracts as agent for the other party.
Consultant and City agree to the following rights consistent with an independent contractor
relationship:
A. Consultant has the right to perform services for others during the term of this
Agreement; and
B. Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed; and
C. Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement; and
D. Consultant or Consultant's employees or subcontractors shall perform the services
required by this Agreement. City shall not hire, supervise, or pay any assistants
to help Consultant; and
E. Neither Consultant nor Consultant's employees or subcontractors shall receive
any training from City in the skills necessary to perform the services required by
this Agreement; and
F. City shall not require Consultant or Consultant's employees or subcontractors to
devote full time to performing the services required by this Agreement; and
G. Neither Consultant nor Consultant's employees or subcontractors are eligible to
participate in any employee pension, health, vacation pay, sick pay, or other
fringe benefit plan of City.
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12.01 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.
13.01 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; 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 with
respect to 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 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 real or tangible personal
property. Neither party shall be liable for any indirect, special or consequential damages.
14.01 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 herein applies to Consultant's
indemnity obligations pursuant to this section, 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.
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Except to the extent that Consultant is obligated to indemnify City, and only to the extent
allowable by law, 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.
15.01 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 and No/100 Dollars ($1,000,000.00) from a company authorized to do insurance
business in Texas and otherwise acceptable to City.
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 shall be furnished to the City upon request.
16.01 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 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.
17.01 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
performance of the services.
18.01 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.
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19.01 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
A. Withhold FICA from Consultant's payments or make FICA payments on
Consultant's behalf; or
B. Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
C. Withhold state or federal income tax from Consultant's payments.
20.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
A. When delivered personally to the recipient's address as stated in this Agreement;
or
B. 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:
Management Education Group
Marne E. Green
1211 North Dustin Lane
Chandler, AZ 85226
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
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.
21.01 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
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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.
22.01 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.
23.01 DISPUTE RESOLUTION
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.
24.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance 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.
25.01 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 for each phase of 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
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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 work 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.
Opinions. Consultant's opinions, estimates, projections, forecasts, or other advice of any
sort, shall be made on the basis of available information and Consultant's expertise and
qualifications as a professional. Consultant does not warrant or guarantee that its opinions,
estimates, projections, forecasts, or other advice will not vary from City's estimates or forecasts
or from actual outcomes.
IN WITNESS WHEREOF, City and Consultant have executed this Agreement on the
dates indicated.
CITY OF ROUND ROCK, TEXAS
By:
Title:
Date Signed.
MANAGEMENT EDUCATION GROUP
Consultant
By:
Title:
Date Signed:
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FOR CITY, ATTEST:
Sara L. White, City Clerk
FOCITY, APPROVED AS TO FORM:
Steph. L. Sheets, City Attorney