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CM-08-09-243CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES WITH McDOUX PRESERVATION LLC THIS AGREEMENT for professional consulting services is for provision of public education services relating to historic preservation, dissemination of the City of Round Rock's history, preserving Round Rock's historic architecture, promoting heritage tourism, and establishing community partnerships. This Agreement (hereinafter referred to as the "Agreement") is made by and between the City of Round Rock, a Texas home -rule municipal corporation, with offices located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City") and McDoux Preservation LLC, with offices located at Post Office Box 1556, Kemah, Texas, 77565-1556 (hereinafter referred to as the "Consultant"). RECITALS: 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. 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 twelve (12) 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 Eleven Thousand and No/100 Dollars ($11,000.00), 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 does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.04. 00145121/jkg cm- Ot -O M3 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 City or denied. 1.05 SUPPLEMENTAL AGREEMENTS The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or by 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 hereunder, Consultant shall prepare and submit detailed bimonthly progress invoices to City 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. Should additional backup material be reasonably requested by City relative to service deliverables, Consultant shall comply promptly. In this regard, should City reasonably 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 REPORT AND FINAL REPORT Consultant agrees to provide City with a project plan and a detailed final written report, together with all information gathered and materials developed during the course of the project. 3 Additionally, Consultant agrees to provide City any necessary oral presentations of such written reports. The final report will address whether each goal outlined in the project plan was accomplished. Consultant agrees to provide City with five (5) bound copies of the final written report, with one (1) unbound copy being delivered which is suitable for City to make additional copies at the sole election of City. All copies of the written final report will be on 8-1/2" x 11" or 8- 1/2" x 17" paper, will be primarily in black and white, will be spiral bound, and will contain color pages, images, photos, and diagrams as necessary. Consultant shall also deliver two (2) reproducible CDs to City, all at no additional cost to City. Consultant agrees to provide City with three (3) copies of any publications or videos produced by Consultant as part of the Scope of Services enumerated in Exhibit "A". 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 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 m the event: (1) 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 (2) 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; 4 (3) The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or (4) The invoice is not mailed to City in strict accordance with any instruction on the purchase order relating to the payment. 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 and reimbursable expenses incurred 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, provided City gives Consultant appropriate credit when Consultant's work product is used for publicity or marketing purposes, and provided City assumes all liability arising from the use of the work product for other projects or for uses on this project for which the work product was not intended. 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 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. 5 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. 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. 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. 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. (3) (5) (7) 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 this Agreement. This provision shall not prohibit the hiring of any person who was solicited solely through a newspaper advertisement or other general solicitation. 6 1.14 CITY'S RESPONSIBILITIES Full information: City shall provide full information regarding project requirements. City shall have the responsibility of providing Consultant, in a timely manner so as not to unreasonably delay Consultant's work, 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 to the property, preliminary information and/or data regarding the site and surrounding property (if applicable), 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, and thereafter as the need arises, 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 and 7 others working on behalf of the party of the confidential nature of the Confidential Information and of the prohibitions herein. Notwithstanding anything to the contrary contained herein, neither party shall be obligated to treat as confidential any information disclosed by the other party (the "Disclosing Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to any other person or entity (including governmental agencies) without restriction; (3) is independently developed by the recipient without any reliance on Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any non-party. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including 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 shall perform all services hereunder consistent with generally prevailing professional or industry standards, and in a professional and workmanlike manner. Consultant shall re -perform any work not in compliance with this standard ("Standard of Care"). 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 8 shall either promptly re -perform such services to the requirements of this Agreement 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. 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, or (c) for any damages not resulting solely from Consultant's negligent acts or omissions. 1.18 INDEMNIFICATION Consultant and City each agree to indemnify 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 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 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 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. City shall, however, remain responsible to compensate Consultant for services satisfactorily provided, and the responsibilities of both parties shall continue to be in force on portions of the project not affected by the infringement. 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. 9 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 the indemnified party's preparation for 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. 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 the 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 Five Hundred Thousand 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 m such event that the subconsultants are included as additional insureds. 10 Any volunteers designated by the City to assist Consultant in performing work under this Agreement shall not be considered subconsultants and are not required to maintain the minimum insurance required by this section. 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 require the same from 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, except for ten (10) days' notice in the event of cancellation due to non-payment of premiums, and a notice thereof shall be given to the 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 one (1) business day 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 the 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 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. 11 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, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to City at the expiration of the term of this Agreement. 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: Joelle Jordan Senior Planner City of Round Rock 221 East Main Street Round Rock, Texas 78664 (512) 218-5422 jjordan@round-rock.tx.us Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Steph McDougal, Principal McDoux Preservation LLC P.O. Box 1556 Kemah, Texas 77565-1556 (281) 755-2144 steph@mcdoux.com 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. 12 Notice to Consultant: Steph McDougal, Principal McDoux Preservation LLC P.O. Box 1556 Kemah, Texas 77565-1556 Notice to City: James R. Nuse, City Manager 221 East Main Street Round Rock, TX 78664 Stephan L. Sheets, City Attorney and to: 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 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 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 the standards generally followed by design professionals working on similar projects in the same geographical area. 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. 14 This Agreement may be executed in multiple counterparts, which taken together shall be 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 Round Rock, Texas By: N Printe��ie:es 12• Title: yV1(41/1 Date Signed: '3. 14' Uw Attest: By: Sara L. White, City Secretary McDoux Preservation LLC By: Printed Title: ame: �7tC I%Y Date Signed: c(— 15-ce) 15 For City, proved as t Form: By: an L. Sheets, City Attorney EXHIBIT "A" SCOPE OF SERVICES Historic Preservation Public Awareness/Education Program Consultant will develop a public awareness campaign to educate the general public, owners of historic buildings, and local Realtors about historic preservation programs and the history of the City of Round Rock. During this project, Consultant will: • Participate in one Historic Preservation Commission work session at the outset of the project. Project Plan. Develop a detailed project plan for the activities described below, to include additional detail and a task breakdown for each project component, a schedule that optimizes the integration of common information into multiple components, and identification of specific persons responsible for each task. Coordinate with City staff on project/meeting schedule. Email Newsletter. Using Constant Contact or a similar online newsletter/email list management provider, establish a template with format and content for an email newsletter; produce one sample newsletter; and develop an editorial calendar for the next 12 months so that staff can easily add content. Some "articles" may be populated with content re -purposed from other communication vehicles. Preservation Brochures. Create and update three brochures: 1) General information about Round Rock's preservation ordinances and programs and the historic tax exemption program, for the public; 2) Similar but more detailed content, targeted toward owners of historic properties; 3) Detailed information about the historic designation process and benefits of designation. City Planning Department staff will format brochures and coordinate printing and distribution. Press Releases. Develop a 12 -month publicity schedule. Write one press release each month about City preservation efforts and programs, local building restoration projects and success stories, etc. Newspaper Articles. Work with the local newspaper to establish a monthly column about Round Rock history and historic sites/buildings. Develop a 12 -month schedule of content, based on calendar of City preservation programs and activities, where appropriate. Write one article each month. If the local newspaper declines to participate in the monthly column City will work with Consultant to publish column through an alternative outlet. 16 Cable Access Television Interstitial Segments. Work with City Communications Department to develop concepts for a series of 24 "Preservation Minutes" to air on local cable access television Channel 10. For example, each quarter, televise one segment on City preservation programs, one segment on Round Rock history, and one segment on historic sites and buildings in Round Rock. Write scripts for these monthly 60 -second segments in collaboration with City video production team. (All production to be provided by City.) Building Placards. Update building history placards posted in windows in the downtown National Register District to make them consistent with information in the historic properties database and to reflect each building's use since the placards were last updated. Recommend format, size, placement in downtown storefront windows, and ways to encourage building owners to display the placards. City will be responsible for the printing and production of placards. City Historic Preservation Website. Work with Planning staff to modify existing website so that the public can access the historic properties database. Evaluate options for linking current lists of historic properties to individual web pages with additional detail about each building. Recommend format for such web pages. Ensure that language is consistent between website and printed materials. Catalog all materials produced as part of the overall project, as well as other historic articles and information; determine what should be added to the website and how to format and organize these items; and format each item for posting online. Updates to the website will be performed by the City and not Consultant. • Realtor Training Presentation. Re -purpose information created during the completion of other program components into a presentation for area Realtors, City Council members and commissioners, and local business owners. This presentation will familiarize the audience with Round Rock's historic properties, economic benefits of historic preservation, City preservation ordinances and zoning overlays, and the historic tax exemption program. Deliverables would include a PowerPoint presentation and presenter's notes. Conduct one pilot presentation. (Note: This session will not meet requirements for Realtors' Continuing Education hours. • Participate in one formal opportunity for public education/outreach/open house. • Present to the Historic Preservation Commission at completion of project. • Present to the City Council at completion of project. 17 Consultant will provide City with regular verbal and/or written status updates, as well as invoice City for any payment that may be due in accordance with the Scope of Services. Consultant will perform these services in its own facility, City's offices, or other meeting locations as arranged by City. City and Consultant will appoint representatives to the following positions: City of Round Rock Project Coordinator. Joelle Jordan will represent the City of Round Rock, Historic Preservation Commission, City Council, and City staff. Consultant Project Manager. Steph McDougal will serve as Project Manager. DELIVERABLES. Consultant will provide the following specified Work Product: • Project plan. • Email newsletter template; one sample newsletter; and 12 -month editorial calendar. • Copy and image/design suggestions for brochure about Round Rock's preservation ordinances and programs and the historic tax exemption program, for the public. • Copy and image/design suggestions for brochure about Round Rock's preservation ordinances and programs and the historic tax exemption program, targeted toward owners of historic properties. • Copy and image/design suggestions for brochure about the historic designation process and benefits of designation. • Twelve-month schedule for press releases, plus one press release each month about City preservation efforts and programs, local building restoration projects and success stories, etc. • Twelve-month schedule for monthly newspaper column about Round Rock history and historic sites/buildings, plus one article each month to appear under Joelle Jordan's byline. • Concepts and scripts for a series of 24 monthly 60 -second "Preservation Minutes" to air on local cable access television Channel 10. • Copy for updated building history placards and recommendations for format, size, placement in downtown storefront windows, and ways to encourage building owners to display the placards. • Recommendations for format and content of individual web pages with additional detail about each building in the City's historic properties database. Copy (if not already available) for such pages for all Historic District buildings and Historic Site buildings currently listed on City website. 18 • Realtor -targeted PowerPoint Presentation about Round Rock's historic properties, economic benefits of historic preservation, City preservation ordinances and zoning overlays, and the historic tax exemption program, with presenter's notes. • Delivery of one pilot Realtor Training presentation. (Note: This session will not meet requirements for Realtors' Continuing Education hours.) • List of all materials produced as part of the overall project, as well as other historic articles and information gathered during research, with recommendations for what should be added to the website and how to format and organize these items. Coordination of Historic Preservation Special Programs Consultant will work with City to identify and recruit volunteers to complete the following activities. Consultant will develop parameters for each project component and will provide limited facilitation. • Local Legends. Recruit a community -led group of volunteers who will develop a process for the annual nomination and selection of "Local Legends" by the Historic Preservation Commission and who will lead the nomination process on an ongoing basis. This may include clarifying existing or developing new criteria for nominations and selection, as well as the development of a database of future possible nominees who deserve special recognition for their contributions to the community. • State History Subject Marker. Identify a young historic preservation professional who is interest in gaining experience to work with the Williamson County Historical Commission to apply for a state historic subject marker for "New Town", the downtown National Register District. The application materials for this marker could be based on the 1983 Nation Register nomination form, but would need to include opportunities for the public to provide input on important topics to highlight in the marker application. • Photo Scanning Project. Identify a local Eagle Scout candidate who is interested in taking on this effort for his Service Leadership Project. (Boy Scout Troops in Round Rock include BSA 27, BSA 145, BSA 157, BSA 345, and BSA 365.) Because the Scout is required to serve as the project leader, this would require very little City Planning time. The Scout ideally would be required to organize an event during which the public would submit photographs to be scanned for City archives; organize volunteers; determine equipment needs and work with City to prepare a purchase order; conduct at least one pilot scanning event; and prepare instructions for conducting future events. Consultant will provide City with regular verbal and/or written status updates, as well as invoice City for any payment that may be due in accordance with the Scope of Services. Consultant will perform these services in its own facility, City's offices, or other meeting locations as arranged by City. 19 City and Consultant will appoint representatives to the following positions: City of Round Rock Project Coordinator. Joelle Jordan will represent the City of Round Rock, Historic Preservation Commission, City Council, and City staff. Consultant Project Manager. Steph McDougal will serve as Project Manager. DELIVERABLES. Consultant will provide the following specified Work Product: • Project requirements/parameters for each of the special programs identified above. • Volunteer recruitment. (Note that success in this area cannot be guaranteed.) • Limited project facilitation. 20 DATE: September 22, 2008 SUBJECT: City Manager Approval at September 26, 2008 Staff Meeting ITEM: Consider executing an agreement for professional consulting services with McDoux Preservation, LLC for a new grant to develop a preservation promotion and public education program. Department: Planning and Community Development Department Staff Person(s): Jim Stendebach, Planning and Community Development Director JoeIle Jordan, Senior Planner Justification: This contract is being funded in part through a Certified Local Government (CLG) grant received from the Texas Historical Commission. The City of Round Rock wishes to contract with McDoux Preservation, LLC to develop a preservation promotion and public education program for the City. Funding: The contract for consulting services totals $11,000, of which $8,500 will come from a CLG grant administered by the Texas Historical Commission and $2,500 from a City cash match. Cost: Cost to the City of Round Rock for professional consulting services will be $2,500. Source of funds: General Fund for City contribution. Outside Resources: CLG grants are funded with money appropriated from Congress for preservation efforts through the National Park Service Historic Preservation Fund (HPF). By federal law, the Texas Historical Commission must set aside at least 10 percent of its HPF appropriation for CLG grants each year. Background Information: On April 24, 2008, the City Council adopted a resolution executing a grant contract with the Texas Historical Commission to develop a preservation promotion and public education program. Certified Local Government (CLG) grants provide funding to enable local communities to develop quality programs and fully participate in the state's preservation process. The contract for consulting services is the majority of the total project cost. The total project cost is based on a $10,000 allocation from the Texas Historical Commission. The grant requires a 100% match which will be in the form of a $5,000 cash match by the City of Round Rock, and a $5,000 match in-kind for hours of service. The remainder on the funding for this project is allocated to supplies and equipment and in-kind hours by staff and volunteers. The City of Round Rock has been a Certified Local Government since 1989. The City has received this grant several times in the past. Examples of past projects include the Round Rock Collection, Design Guidelines for Historic Properties, and a GIS Inventory of Historic Sites.