CM-12-08-1410044-0.-08-1411 RECEIVED
AUG 011011
ROUND ROCK, TEXAS City Manager Approval Form
PURPOSE PASSION. PROSPERITY
Consider executing "Agreement for Consulting Services for Design and Construction Consultation for the
City of Round Rock Sports Complex Project" with The Sports Facilities Advisory, LLC
Item Caption:
Approval Date: August 3, 2012
Department Name: General Services
Project Manager: Chad McDowell
Assigned Attorney:
Steve Sheets
Item Summary:
City desires to contract for Consultant's services generally described as provision of observation and analysis, and the rendering
of related recommendations and advice regarding City's design and construction of a Sports Complex Project, such consulting
services to be performed throughout the design process.
No. of Originals Submitted: 2
Project Name: Sports Complex
Cost: 50,000.00
Source of Funds: General Self -Financed Construction
Source of Funds (if applicable): Select Source Fund
Account Number: Project uses Hotel Motel Construction Funds, 2012 Hotel Motel Revenue Bonds and GSFC L.O.
Finance Director Approval: Cheryl Delaney
Department Director Approval:
Date: 8/1/12
Date:
**Electronic signature by the Director is acceptable. Please only submit ONE approval form per item.**
CIP 1 I I Budget ❑� TI Purchasing I I I I Accounting El
N/A OK N/A OK N/A OK N/A OK
ITEMS WILL NOT BE PLACED ON THE COUNCIL OR CM AGENDA W/OUT PRIOR FINANCE AND/OR LEGAL APPROVAL
REV. 6/20/11
AGREEMENT FOR CONSULTING SERVICES FOR
DESIGN AND CONSTRUCTION CONSULTATION FOR THE
CITY OF ROUND ROCK SPORTS COMPLEX PROJECT WITH
THE SPORTS FACILITIES ADVISORY, LLC
THIS AGREEMENT is entered into on this the day of SCF , 2012,
by and between the City of Round Rock, a Texas home -rule municipal `t�oi oration, whose
p P
offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred
to as the "City"), and The Sports Facilities Advisory, LLC, whose offices are located at 600
Cleveland Street, Suite 910, Clearwater, Florida 33755 (hereinafter referred to as the
"Consultant" or "SFA").
RECITALS:
WHEREAS, City desires to contract for Consultant's services generally described as
provision of observation and analysis, and the rendering of related recommendations and advice
regarding City's design and construction of a Sports Complex Project, such consulting services
to be performed throughout the design process; and
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such 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 it has been signed by every party hereto,
and shall remain in full force and effect unless and until it expires by operation of the term
indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be for eighteen (18) months from the effective date
hereof.
City reserves the right to review this Agreement at any time, and may elect to terminate
this Agreement with or without cause or may elect to continue.
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2.01 SCOPE OF SERVICES; CONTRACT AMOUNT; PAYMENT FOR SERVICES
In consideration for the professional consulting services to be performed by Consultant,
City agrees to pay Consultant a not -to -exceed amount in accordance with this section, in
payment for services and the Scope of Services deliverables as delineated herein and in attached
exhibits.
Scope of Services
SFA shall provide expert consultation, observation, analysis, advice, and
recommendations to City throughout the design process relating to City's construction of its
Sports Complex Project. Anticipated tasks within this Scope of Services shall include but not be
limited to the following:
• Review of different design concepts, following kickoff meeting previously held in
San Antonio at the offices of Mormon Mok
Responding to any questions of City, and providing critical direction related to the
design process so that the end product will allow for facilitation of the detailed
financial forecast (pro forma) to be utilized as identified in previous deliverables
• Regular review, and making recommendations to City at design milestones set
forth by the architectural team for City's approval
• Bid reviews, and selection of critical sports equipment so that City may obtain the
best pricing for the quality level of products it requires
• Responding to any other requests, questions, or directions to review materials
which are initiated by City
All services of Consultant shall be invoiced at the below -listed hourly rates, billed in 15 -
minute increments, and shall in no event exceed the total amount of $50,000.00 over the term of
this Agreement, including reimbursable travel and miscellaneous expenses as detailed below.
Executive Team
Management Advisor/Account Executive
Business and Financials Analyst
Market Analyst and Document Specialist
Administrative Support
Reimbursable Travel Expenses
$275.00 per hour
$225.00 per hour
$200.00 per hour
$175.00 per hour
$ 75.00 per hour
Reimbursement for travel expenses shall be for actual expenses incurred, without
markup, for travel authorized in advance by City in writing. Travel expenses shall
include coach -class airfare, hotel accommodations, ground transportation and associated
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fees such as parking and tolls, and up to $55.00 per consultant per day for meal
reimbursement.
Reimbursable Miscellaneous Expenses
Reimbursement for miscellaneous expenses shall be for actual expenses incurred, without
markup, for the following types of business and/or administrative expenses:
photocopying, printing jobs completed at an offsite printer, postage, courier services.
NOT TO EXCEED TOTAL: $50,000.00
Consultant expressly acknowledges and agrees that it will be required to obtain prior
written approval from City's authorized representative before it moves forward with any task,
which written approval from City shall only be given after City is fully apprised of both the
amount of time required for Consultant to perform the specific task and the amount of the
associated fee.
Deductions. No deductions shall be made from Consultant's compensation on account
of penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions. No additions shall be made to Consultant's compensation based upon claims,
whether paid by City or denied.
3.01 SCOPE OF SERVICES
Consultant shall satisfactorily and timely provide all services described under Section
2.01 of this Agreement, under Consultant's proposal for services, and under any related exhibit
or attachment. 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 services in accordance with this Agreement, in accordance with the
relevant proposal for services, and in accordance with due care and prevailing consulting
industry standards for comparable services.
4.01 LIMITATION TO SCOPE OF SERVICES
Consultant and City agree that the scope of services to be performed is enumerated herein
and in exhibits, 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.
5.01 REQUIRED DRAFT REPORTS AND FINAL REPORT
Consultant agrees to provide City with any draft reports and a detailed final written
report, together with all information gathered and materials developed during the course of work.
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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.
6.01 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices. To receive payment for services, Consultant shall prepare and submit a series
of monthly invoices in a form acceptable to City. Each invoice for professional services shall
track the "Scope of Services" category herein, and shall state and detail the services performed,
along with documentation for each service performed. All payments to Consultant shall be made
on the basis of the invoices submitted by Consultant and approved by City. Such invoices shall
conform to the schedule of services and costs in connection therewith. Should additional backup
material be requested by City, Consultant shall comply promptly with such request. In this
regard, should City determine it necessary, Consultant shall make all records and books relating
to this Agreement available to City for inspection and auditing purposes.
Payment of Invoices. City reserves the right to correct any error that may be discovered
in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of invoices, City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 8.01 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and City or because of amounts which City has a right to withhold under this Agreement or state
law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the
services, but not for taxes based upon Consultant's net income.
Offsets. City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of
whether the amount due arises pursuant to the terms of this Agreement or otherwise and
regardless of whether or not the debt due to City has been reduced to judgment by a court.
7.01 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING
Authority for local governments to contract with one another to perform certain
governmental functions and services, including but not limited to purchasing functions, is
granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts,
Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter
F, Section 271.101 and Section 271.102.
Other governmental entities within the State of Texas may be extended the opportunity to
purchase off of the City of Round Rock's bid, with the consent and agreement of the successful
vendor(s) and Round Rock. Such agreement shall be conclusively inferred for the vendor from
lack of exception to this clause in the vendor's response. However, all parties hereby expressly
agree that the City of Round Rock is not an agent of, partner to, or representative of those outside
agencies or entities and that the City of Round Rock is not obligated or liable for any action or
debts that may arise out of such independently -negotiated "piggyback" procurements.
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8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. Consultant may charge interest on an overdue payment at the "rate in effect" on September
1 of the fiscal year in which the payment' becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
A. There is a bona fide dispute between City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
B. There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
C. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
D. The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
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 Contractor a written notice of termination at the end of its then -current fiscal year.
10.01 TIMETABLES
Unless otherwise indicated to Consultant in writing by City, or unless Consultant is
unreasonably delayed in the orderly progress of its work by forces beyond Consultant's control,
the following timetable structure and deliverable due dates shall apply: not later than eighteen
(18) months from date of execution hereof.
11.01 SUPPLEMENTAL AGREEMENTS
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or City Manager action, if City determines that there has
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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, that being
eighteen (18) months from the effective date hereof. 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.
12.01 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that City may terminate this
Agreement for the convenience of City upon thirty (30) days' written notice to Consultant, or for
cause immediately upon City's 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 terms 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.
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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.
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.
13.01 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.
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
information as is reasonably required 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, in a timely
manner, to provide City with a comprehensive and detailed information request list, if any.
15.01 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, not City's employee. Consultant's employees or
subcontractors are not City's employees. This Agreement does not create a partnership
relationship. Neither party has authority to enter into contracts as agent for the other party.
Consultant and City agree to the following rights consistent with an independent contractor
relationship:
A. Consultant has the right to perform services for others during the term of this
Agreement;
B. Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed;
C. Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement;
D. Consultant or its employees or subcontractors shall perform the services required
hereunder. City shall not hire, supervise, or pay any assistants to help Consultant;
E. Neither Consultant nor its employees or subcontractors shall receive any training
from City in the skills necessary to perform the services required by this
Agreement;
F. City shall not require Consultant its employees or subcontractors to devote full
time to performing the services required by this Agreement; and
G. 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.
16.01 CONFIDENTIALITY; 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
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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.
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 limit 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.
17.01 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 -perforin any work not in compliance
with this representation.
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18.01 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.
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.
19.01 INSURANCE
Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term
hereof 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.
20.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Compliance with Laws. Consultant, its consultants, agents, employees and
subcontractors shall use best efforts to comply with all applicable federal and state laws, the
Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules
and regulations promulgated by local, state and national boards, bureaus and agencies.
Consultant shall further obtain all permits and licenses required in the performance of the
services contracted for herein.
Taxes. Consultant will pay all taxes, if any, required by law arising by virtue of the
services performed hereunder. City is qualified for exemption pursuant to the provisions of
Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act.
21.01 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required for this
project.
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22.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
23.01 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under, this Agreement. City will not do the following:
A. Withhold FICA from Consultant's payments or make FICA payments on
Consultant's behalf; or
B. Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
C. Withhold state or federal income tax from Consultant's payments.
24.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows: when delivered personally to recipient's
address as stated in this Agreement; or 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:
The Sports Facilities Advisory
600 Cleveland Street, Suite 910
Clearwater, FL 33755
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
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25.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas. If legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive jurisdiction and venue shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
26.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Consultant and City. This Agreement may only be amended or supplemented by mutual
agreement of the parties hereto in writing.
27.01 DISPUTE RESOLUTION
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 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement, through a process
of mutual agreement and negotiation, 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.
29.01 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.
30.01 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 fornl of
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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.
31.01 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.
32.01 MISCELLANEOUS PROVISIONS
Time of the Essence. Consultant agrees that time is of the essence and that any failure of
Consultant to complete the services for each phase of this Agreement within the agreed project
schedule may constitute a material breach of this Agreement. Consultant shall be fully
responsible for its delays or for failures to use reasonable efforts in accordance with the terms of
this Agreement. Where damage is caused to City due to Consultant's failure to perform in these
circumstances, City may withhold, to the extent of such damage, Consultant's payments
hereunder without waiver of any of City's additional legal rights or remedies. City shall render
decisions pertaining to Consultant's work promptly to avoid unreasonable delays in the orderly
progress of Consultant's work.
Force Majeure. Neither City nor Consultant shall be deemed in violation of this
Agreement if it is prevented from performing any of its obligations hereunder by reasons for
which it is not responsible or circumstances beyond its control. However, notice of such
impediment or delay in performance must be timely given, and all reasonable efforts undertaken
to mitigate its effects.
Section Numbers. The section numbers and headings contained herein are provided for
convenience only and shall have no substantive effect on construction of this Agreement.
Waiver. 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.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original; and all of which, taken together, shall constitute
one and the same instrument. City agrees to provide Consultant with one fully executed original.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
indicated.
THE SPORTS FACILITIES ADVISORY, LLC
Title: L 4 ArJAc,ga-
Date Signed: ÷// g/i 7—
CITY
CITY OF ROUND ROCK, TEXAS
By:
Printed Name:
Title:
Date Signed:
FOR CITY, ATTEST:
By:
Sara L. White, City Clerk
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FOR CITY, - PPROVED A TO FORM:
By:
Stephan . Sheets, City Attorney