CM-10-04-085CITY OF ROUND ROCK AGREEMENT FOR CONSULTING SERVICES
FOR TECHNICAL REVIEW RELATING TO FIRE DEPARTMENT
WITH MANAGEMENT ADVISORY GROUP, INC.
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
COUNTY OF TRAVIS
KNOW ALL BY THESE PRESENTS:
THIS AGREEMENT for professional consulting services for technical review services,
and for related goods and services (the "Agreement") is made by and between the CITY OF
ROUND ROCK, TEXAS, a home -rule municipality with offices located at 221 East Main Street,
Round Rock, Texas 78664-5299 (the "City") and MANAGEMENT ADVISORY GROUP, INC.,
with principal offices located at 4000 Genesee Place, Suite 205, Lake Ridge, Virginia 22192 (the
"Consultant" or "14AG").
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 receipt and sufficiency of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1,01 EFFECTIVE DATE, DURATION, ANI) TERM
This Agreement shall be effective on the date it 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 stated
herein, or until terminated or extended as provided herein.
The initial term of this Agreement shall be until full and satisfactory completion of the
work specified herein is achieved, but in no event later than sixty (60) days from the effective
date of this Agreement. After that initial term, this Agreement may be renewed for one (1) term
of sixty (60) days, with such renewal to occur on or before the expiration date of the preceding
term, and with such renewal being absolutely predicated upon the express written agreement of
both parties. Such renewal is permitted only provided Consultant has performed each and every
contractual obligation specified in this original Agreement.
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City reserves the right to review the Agreement at any time, and may elect to terminate
this Agreement with or without cause or may elect to continue.
2.01 CONTRACT AMOUNT
Jn consideration for the professional consulting services to be performed by Consultant,
City agrees to pay Consultant a total sum not to exceed Twenty -foto' Thousand Two Hundred
Seventy-five and No/100 Dollar's ($24,275.00), in paytnent for services and the Scope of
Services deliverables as delineated herein and in attached exhibits, This amount includes
reimbursable expenses eligible for payment under this Agreement.
3.01 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 recited in Exhibit "A" attached
hereto and incorporated herein by reference 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
herein. 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 in accordance with the
referenced Scope of Services. Consultant shall perform its services in a professional and
workmanlike planner.
Consultant shall not undertake work that is beyond the Scope of Services set forth in
Exhibit "A" and herein. 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 herein,
4.01 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, City agrees to pay Consultant the following "Payment for Services:"
Fees for the listed deliverables in the total amount of $24,275.00 shall be paid by City in
the following manner:
Initiation 20% of total
Completion of onsite interviews 30% of total
Completion and submittal of draft report 40% of total
Final presentation of findings and recommendations 10% of total
The approximate loading of Consultant's professional time and costs by segment is as is
delineated in exhibits attached hereto and incorporated herein by reference for all purposes.
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Payment for Reimbursable Expenses: No additional payment for reimbursable
expenses, in excess of the delineated not -to -exceed amount, is authorized under this Agreement.
Not -to -Exceed Total Payment for Services: Unless subsequently changed by
Supplemental Agreement, Consultant's total compensation for consulting services hereunder
shall not exceed $24,275.00, This amount represents the absolute limit of City's liability to
Consultant hereunder unless same shall be changed by Supplemental Agreement, and City shall
pay, strictly within 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 City or denied.
5.01 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,
6,01 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment following delivery of all deliverables, Consultant shall
prepare and submit detailed 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,
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
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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 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.
7.01 REQUIRED DRAFT REPORTS AND FINAL REPORT
Consultant agrees to provide City with draft reports and a detailed final written report,
together with all information gathered and materials developed during the course of the project.
Consultant agrees to provide City with additional bound copies of the final written report,
if and as requested, with the right to make additional copies being at the sole election of City.
All copies of the written final report will be to specifications as delineated by City.
8.01 LIMITATION TO SCOPE OF SERVICES
Consultant and City agree that the scope of services to be performed is enumerated in
Exhibit "A" and 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,
9,01 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 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.
10.01. 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 wider 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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13. 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. 'rhe 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.
11.01 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that City may terminate this Agreement
for the convenience of City, upon fifteen (15) day? 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, subject to the conditions set forth herein. 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 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 in this section shall require City to pay for any work which it deems
unsatisfactory or which is not performed in compliance with the terns of this Agreement.
Default: Either party may terminate this Agreement, in whole or in part, for default if
the party provides the other party with written notice of such default and the other fails to
satisfactorily cure such default within ten (10) business days of receipt of such notice (or a
greater time if agreed upon between the parties).
If default results in termination of this Agreement, then 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. Neither party shall be entitled to any lost or anticipated profits for work terminated for
default hereunder.
The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of the terminating party and the terminated party to fulfill contractual obligations.
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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 it deems
unsatisfactory, or which is not performed in compliance with the terms of this Agreement.
12.01 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 it perforins its services required by this Agreement.
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)
13.01 NON -SOLICITATION
Except as may be otherwise agreed in writing, during the term of this Agreetnent 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.
14.01 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
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information as is reasonably requited to enable Consultant to provide the services called for.
City shall require 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 as accurate and complete.
Required materials: Consultant's performance requires receipt of all requested
information reasonably necessary to provision of services. Consultant agrees, within ten (10)
days of the effective date of this Agreement, to provide City with a comprehensive and detailed
information request list, if any.
15.01 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 Agreeinent, 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 inay 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, teclmiques, 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
Iiiforination to any third party without the other party's prior written consent, which consent
shall not be unreasonably withheld, Each party agrees to take reasonable measures to protect the
confidentiality of the other party's Confidential Information and to advise their employees of the
confidential nature of the Confidential Information and of the prohibitions herein.
Notwithstanding anything to the contrary contained herein, neither party shall be
obligated to treat as confidential any information disclosed by the other party (the "Disclosing
Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is released by the Disclosing Party to any other person or entity (including
governmental agencies) without restriction; (3) is independently developed by the recipient
without any reliance on Confidential Information; or (4) is or later becomes publicly available
without violation of this Agreement or may be lawfully obtained by a party from any non-party.
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Notwithstanding the foregoing, either party will be entitled to disclose Confidential
Information of the other to a third party as may be required by law, statute, rule or regulation,
including subpoena or other similar form of process, provided that (without breaching any legal
or regulatory requirement) the party to whom the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein
shall preclude or linnit Consultant from providing similar services for other clients.
Neither the 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,
16.01 WARRANTIES
Consultant represents that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re -perform any work not in compliance
with this representation. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES
EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
17.01 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of City or 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, 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.
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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) hi 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.
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 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.
19.01 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay ail 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.
20.01 INSURANCE
Zttsittaiice. 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.
Insurance Policy Endorsements. Each insurance policy hereunder shall include the
following conditions by endorsement to the policy:
(I) 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 mail to:
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City Manager, City of Round Rock
221 Bast Main Street
Round Rock, Texas 78664
Consultant shall also notify City, within ten (10) days 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.
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 designated 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.
(3)
(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.
21.01 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 utiles 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.
22.01 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 hereunder.
23,01 DESIGNATION OF REPRESENTATIVES
The City hereby designates the following representative(s) authorized to act in its behalf
with regard to this Agreement:
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James Nuse, P.E.
City Manager
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Donald C. Long, Ph.D.
Management Advisory Group, Inc.
4000 Genesee Place, Suite 205
Lake Ridge, Virginia 22192
Telephone: (703) 590-7250
E -Mail: don@maginc.org
24.01 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:
Management Advisory Group, Inc.
4000 Genesee Place, Suite 205
Lake Ridge, Virginia 22192
Notice to City:
City Manager, City of Round Rock
221 hast 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.
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25.01 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. Tliis Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
26.01 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including exhibits, constitute the entire
agreement between the parties and supersede all previous communications, representations, and
agreements, either written or oral, with respect to the subject matter hereof. The parties
expressly agree that, in the event of any conflict between the terms of this Agreement and any
other writing, this Agreement shall prevail. No modifications of this Agreement will be binding
on any of the parties unless acknowledged in writing by the duly authorized governing body or
representative for each party,
27.01 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,
28.01 FORCE MAJEURE
Notwithstanding any other provisions hereof to the contrary, no failure, delay or default
in performance of any obligation hereunder shall constitute an event of default or breach of this
Agreement, only to the extent that such failure to perform, delay or default arises out of causes
beyond control and without the fault or negligence of the party otherwise chargeable with failure,
delay or default; including but not limited to acts of God, acts of public enemy, civil war,
insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other
casualties, strikes or other labor troubles, which in any way restrict the performance under this
Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to City if its failure to
perforin 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.
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29.01 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 section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
30.01 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner acceptable to City and according to generally accepted business
practices.
31.01 GRATUITIES AND BRIBES
City may, by written notice to Consultant, cancel this Agreement without incurring any
liability to Consultant if it is determined by City that gratuities or bribes in the form of
entertainment, gifts, or otherwise were offered or given by Consultant or its agents or
representatives to any City officer, employee or elected representative with respect to the
performance of this Agreement. In addition, Consultant may be subject to penalties stated in
Title 8 of the Texas Penal Code.
32.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
33.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its 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.
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his„. trent :•nay . be :. executed : iu•:tritiltiple : co rater .arts, an . o e. of ;:w iclt. sf ll ::lre
considered an original of this. doc;anent; and. alt of which; ::when take to et.her`:shall constitute :
one and the same instrn inent, City agrees to provide Consultant with one futly:executedori
gittctl.
IN WITNESS WHHEREQF, City and Consultant. have: executed ::this Agreement oil the
data indicated.
City..of Round Rock, Texas
By.:
Printed ae;
Title
Date Signed:qiic
• dam
For City, Attest.
By:
Sara L. White, City Secretary
For City A )proved as to T i•m;
Stepitai
1.4
Sheets, City Attorney
14
Management Advisory Group, Inc..
By:
Printed Naine.: `pia /4 opt
Title:. 47Yecat! v rit
Date Signed:
MANAGEMENT CONSULTING SERVICES
April 13, 2010
Mr. Jim Nuse
City Manager
City of Round Rock
221 E. Main Street
Round Rock, Texas 78664
Dear Mr. Nuse:
Management Advisory Group, inc. (MAG) is pleased to offer technical review services to the
City of Round Rock in reference to a five year review of progress since the original 2005 MAG
study, supplemented by a review of the La Frontera fire incident of December 2008. Reviewing
incidents Is a normal procedure used by many municipalities.
This project would involve an overview of how the Department has progressed in reference to
our comprehensive 2005 report for the Fire Department. That report included an implementation
plan that has been thoughtfully considered as changes have been made to the Department. Our
familiarity with the Department and the community of Round Rock will be helpful in conducting
the review. The La Frontera fire incident will be reviewed as part of this work effort.
Chief sill Neville and l were the authors of the 2005 report and will work together with the City in
this proposed project.
We anticipate a cooperative relationship with all parties in this review, as we seek to develop
helpful recommendations for your consideration. Interviews with all parties will remain
confidential, as MAG does not attribute comments to Individuals. Rather, findings and
conclusions are a function of the entire data gathering and interviewing effort.
Sincerely,
p->,_v_ze,‘ ccfi ,..A --
Donald C. Long, Ph.D.
Management Advisory Group, Inc.
4000 Genesee Place, Suite 205
Lake Ridge, Virginia 22192
Phone: 703.590.7250
City of Round Rock, Texas
Management Advisory Group, Inc.
Technical Review Proposal
for the
City of Round Rock, Texas
(Summary and Detailed Work Plan)
Project Goal:
The dual purpose of this consulting project is to: 1) provide an overview of how the Department
has progressed in reference to MAG's comprehensive 2005 report for the Fire Department, and,
2) review and evaluate the Fire Department's operations at the "La Frontera" fire incident that
occurred in December 2008. Further, MAG will develop helpful observations and
recommendations for future Fire Department responses to similar events. We ask also that
media relationships and exchanges be handled by the City.
Overall Project Approach:
Data Review;
MAG will review the Department's major changes in relationship to the original report
recommendations, as well as relevant information applicable to the La Frontera event. MAG will
review relevant reports made by the Round Rock Fire Department, Internal memos, state level
reports, recordings, media reports, and relevant written documentation that Is available within
the City or at the state level.
Personal Interviews:
During MAG's primary onsite visit, MAG would conduct personal Interviews with:
D City Manager, Fire Chief, and Assistant Fire Chief;
D All officers present at the La Frontera fire;
> Union leaders and injured firefighters;
➢ Officers of any other department responding;
Dispatchers on duty at the time of the event;
➢ Fire cause investigator(s) and any informed eyewitnesses;
➢ Other potentially relevant parties (water officials, Austin fire officials, other)
Analysis and Report Preparation:
MAG will review, analyze, and prepare written observations and recommendations in a report to
the City that Is concise and appropriate to the project purpose and goals.
Discussion/Presentation:
During a subsequent onsite discussion/presentation visit, MAG will meet with city management,
department representatives (management and appropriate staff), and other city officials (as
requested) to discuss findings and recommendations. The estimated budget anticipates one
visit for this purpose.
City of Rout! Rock, Texas
A more detailed work plan and approach is suggested below.
TASK 1.4:. INITIATE PROJECT :
•
Objectives:
▪ Gain a comprehensive understanding of the project's background, goals, and expectations.
IR Identify, in greater detail, specific objectives for the review, and assess how well this initial
work plan accomplishes those objectives.
a Establish a mutually agreed-upon project work plan, time line, deliverables, and monitoring
procedures that will lead to the successful accomplishment of all project objectives.
■ Collect and review existing operational data, information, agreements, relevant policies and
procedures, and any prior studies, or reports.
Activities:
1.1 Meet with City Manager and relevant City and Department management, project
management, relevant staff and others to establish working relationships, make logistical
arrangements, and determine communication lines.
1.2 Discuss the objectives of the project. Identify policy and issue concerns to be addressed
during the review.
1.3 Identify Departmental actions in reference to the original 2005 report.
1.4 Review Departmental actions taken in reference to the original 2005 report.
1.3 Obtain pertinent reports (focal / State fire reports and background materials relevant to
the review, such as:
• newspaper stories
•, radio & TV reports news
• concerns expressed by union officials
• available insurance reports
• Department operational SOPs/SOCs
• incident work sheets used at fire
• Department after action memos
1.4 Revise original work plan and finalize the time lines for the project, as needed.
1.5 Finalize the:
�r data collection approach;
▪ interview plan and tentative schedule and interview guide; and
▪ interim milestones and deliverables.
City of Round Rock, Texas
TASK 2.0: 'CONDUCT LEADERSHIP INTERVIEWS
Objectives:
�r identify views of officials concerning the Department's progress over the last five years and
operations and performance at the La Frontera incident.
Activities:
2.1 Work with the Project Manager to finalize the interviewee list.
2.2 Establish a final Interview schedule that is convenient to all parties.
2.3 Conduct interviews as scheduled, which may include:
Y Fire Chief
> Assistant Fire Chief
> Ali officers present at the La Frontera fire
> Union leaders
> Officers of any other department responding
Y Dispatchers on duty at the time of the event
> Fire cause investigator(s)
Y Relevant eyewitnesses
Y Other potentially relevant parties (water officials, Austin tire officials, other)
2.4 Discuss progress made by the Fire Department in reference to major recommendations
contained in the original 2005 report.
2.5 Review actions taken over the last five years in relationship to the major recommendations
in the original 2005 report.
2.6 Summarize and analyze interview results
2.7 Develop summary report of interviews, in a consolidated format.
TASK 3.0: CAPTURE INPUT FROM SELECTED FIREFIGHTERS
Objectives:
▪ Identify concerns and satisfactions at the Department's incident operations.
■ Identify ideas generated regarding Department operations, equipment, apparatus and
training.
▪ Identify strengths and weaknesses illustrated at the incident.
City of Round Rock, Texas
Activities:
3.1 Develop interview questions for service providers.
3.2 .Capture critical data In reference to Incident operations
3.3 Review feedback obtained from these interviews.
3.4 Consolidate data and observations from firefighters within the report to the City, without
Individual attribution of incumbents.
TASK 4.0: °IDENTIFY AND EVALUATE ISSUES DEVELOPED
Objectives:
ri Build on our understanding of the progress made since 2005, incident operations, and
identify opportunities for improvement.
• Build a series of observations and recommendations focused on study objectives.
Activities:
4.1 Review performance of personnel, apparatus and equipment at incident.
4.2 Offer recommendations for future operations.
4.3 Assess the appropriateness of Department operational SOPISOG.
4.4 Provide a draft report on the results of all previous tasks. The report will contain:
o executive summary of findings and recommendations;
o a statement of study objectives, scope, and methodology;
o observations of operations and progress made since 2005;
o suggested causes of any problem areas noted;
o findings, without individual attribution of comments to firefighters or
others interviewed;
o specific report recommendations on progress made and
recommendations to improve operations;
o a plan and time frame for implementation.
City of Round Rock, Texas
TASK 5.0: PREPARE A FINAL REPORT .ANb PLAN
Objective:
ir Prepare a report that provides observations and recommendations developed above.
Activities:
6.1 Discuss draft report findings and recommendations with appropriate parties.
.6.2 Receive and review technical feedback on the draft report.
6.3 Make technical adjustments to the draft to produce a final report
6.4 Engage in appropriate discussions.
City of Round Rock, Texas
Proposed Cost
MAG has developed a project budget for the City of Round Rock based on the scope of
services described in MAG's letter of April 13, 2010. MAG is pleased to offer the City of Round
Rock the scope of services as described for the lump sum fee of $24,275. This includes all
anticipated reasonable expenses and is a total fee based on fhe scope of work described in this
proposal. The hourly rate for additional services is $150.
Payment
An initiation invoice of twenty percent (20%) will be requested. Thirty per cent (30%) of the total
will be invoiced following onsite interviews. Forty per cent (40%) of the total will be invoiced
upon provision of a draft report. Ten percent (10%) of the total contract amount shall be payable
upon presentation of the findings and recommendations.
The fees to be provided do not include services provided by MAG following submission of its
final report and recommendations. in the event MAG is required to provide documents or
testimony in response to claims, demands or actions by third parties, MAG shall bill for services
rendered based on then -current professional fees and expenses incurred, including reasonable
attorney's fees. No tasks shall be undertaken without prior notification to you. This provision is
intended to apply only to third -party actions based on implementation of MAG's report and
findings.
Project Time Frame;
MAG is able to initiate a data request within three (3) days of approval of this proposal. The
primary onsite interviews will be scheduled for May 2010. A draft report will be provided within
six (6) weeks of contract initiation. A final report will be provided within one week of internal
technical review and feedback to MAG. With a facilitated interviewing schedule and an
estimated draft review period of one week, the project can be accomplished within 60 days.
Indemnification Language:
Consultant agrees, to the fullest extent permitted by law, to indemnify and hold harmless the
City of Round Rock from any amounts (including reasonable attorney's fees) for which the City
shall become legally obligated to pay as damages for negligent acts, errors, and/or omissions of
the Consultant arising out of the Consultant's performance under this Agreement; however, the
amount Consultant will pay for damages is limited to $9,000,000, which number is intended to
reflect the limits set forth in Consultant's liability insurance,
Proprietary Rights:
The City acknowledges that certain report formats to be provided by the Consultant are
copyrighted. However, In accordance with applicable "Public Records" laws, each file and all
papers pertaining to any activities performed for or on behalf of the City are public records
available for inspection by any person even if the file or paper resides in the Consultant's office
or facility. The City shall agree, to the extent permitted by law, to protect any information
deemed a trade secret as that term is used within applicable statutes.
City of Round Rock, Texas
IN WITNESS WHEREOF, the City of Round Rock and MAG agree to the proposal as herein
described.
CI OF ROUND ROCK
By: JL� Prin-s4Q . 54-
Title Y.C
-.
MANAGEMENT ADVISORY GROUP, INC.
po,>,,e,,ee/ (7 ,.t› --
By:
Executive Vice President
Management Advisory Group, Inc.
Lake Ridge, Virginia 22192
City of Round Rock, Texas
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
Item Caption:
Approval Date:
Ci Mana er A . . royal Summar Sheet
Consider executing a Consulting Services Agreement with Management Advisory Group,
Inc. for technical fire review services.
04/16/2010
Department: Administration
Project Manager: Jim Nuse
Item Summary:
This agreement will allow MAG to complete an overall review of the fire department's progression in reference to the
MAG Comprehensive Study that was conducted in 2005. It will also include a review of the La Frontera fire incident
that occurred in December 2008.
MAG was selected to complete this review due to the familiarity with the fire department and the Round Rock
Community.
Strategic Plan Relevance: Safety & Security & High Value Governance
Cost: $24,275.00
Source of Funds: General Fund
REV. 3/8/10
10.19.09171
Request for City Council/City Manager Action
City Council En City Manager
Submit completed form for all City Manager and City Council approvals.
Department Name: Administration/I
Contact Person: Sara White / Monique Adams
Project Mgr/Resource: Jim Nuse
Project Coordinator:
Jim Nuse
Assigned Attorney: Jkay Gayle
City Council or City Manager Approval Date:
Agenda Wording
For A
Received:
ni,ptr tion Use ONLY
Tag #:
u�-o
a�S
Original Documents Received:
Project Name: MAG Fire Study
ContractorNendor: Emp r Solutions
Funding Source: General Fund
Additional funding Source:
Amount:
Account Number:
4/16/2010
$24,275.00
19000
Consider executing a Consulting Services Agreement with Management Advisory Group, Inc. for techncial fire review services.
Finance Information
Is Funding Required? Yes
Initial Construction Contract
Construction Contract Amendment #
Change Order
=Change in Quantity =Unforeseen Circumstances
Initial Professional Services Agreement
Supplemental Professional Service Agreement #
Purchasing/Service Agreement
Purchase Order
Item(s) to be purchased
No
Other (Please clearly identify action below)
Amount
$24,275.00
Required for Submission of ALL City Council and City Manager Items
Project Mgr. Signature: Jim Nuse
Dept. Director Signature:
'City Attorney Signatur
City Manager Signature:
Date:
Date:
4/14/2010
Date: 1S 110
Date: 4 -1(p -lo *City Attorney signature is required for all items.
REVISED 4/15/2010
LEGAL DEPARTMENT APPROVAL FOR CITY COUNCIL/CITY MANAGER ACTION
Required for Submission of ALL City Council and City Manager Items
Department Name: ADMINISTRATION
Project Mgr/Resource: JIM NUSE
jCoundll Action:
ORDINANCE
Agenda Wording
TECHNICAL FIRE DEPARTMENT REVIEW
Project Name: CONSULTANT
ContractorNendor: MANAGEMENT ADVISORY GROUP, INC.
ri RESOLUTION
City Manager Approval
CMA Wording
Consider executing a Consulting Services Agreement with Management Advisory Group, Irtc.for technical fire review services.
Attorney Approval
Attorney , Date . J . /0
Notes/Comments
O.lwrinxISC:C:tntslni 9 2110041MISC:10018g493
1Inriatpri Filo/nR