CM-2014-396City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider executing a Professional Consulting Services Agreement with
National Association of Sports Commissions (NASC) for completion of a
sports facilities study and audit.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 4/18/2014
Dept Director: Cheryl Delaney, Finance Director
Cost: $30,000.00
Indexes:
Attachments: NASC Consulting Agreement for sports facilities study (4-15-14)
(00296964xA08F8)
Department: Finance Department
Text of Legislative File CM -2014-396
This agreement will allow the National Association of Sports Commissions to conduct a thorough
inventory of the sports facilities in Round Rock, make recommendations on how to best package our
capabilities for the sports event travel industry, provide estimates of the impact to our economy.
Staff recommends approval.
City of Round Rock Page 1 Printed on 4/18/2014
LEGAL DEPARTMENT APPROVAL FOR CITY COUNCIL/CITY MANAGER ACTION
Required for Submission of ALL City Council and City Manager Items
Department Name: Finance
Project Mgr/Resource: Cheryl Delaney
Council Action:
ORDINANCE
Agenda Wording
Project Name: Sports Facilities Study and Audit
ContractorNendor: National Association of Sports Commissions
n RESOLUTION
nCity Manager Approval
CMA Wording
Consider executing a Professional Consulting Services Agreement with National Association of Sports Commissions (NASC) for
completion of a sports facilities study and audit.
Attorney Approval
Attorney
Notes/Comments
Date /S-1/41
Subject to receipt and review of Agreement signed by Consultant.
O:\wdox\SCCInts\0117\1403\MISC\00296952.XLS Updated 6/3/08
CITY OF ROUND ROCK AGREEMENT
FOR PROFESSIONAL CONSULTING SERVICES
RELATED TO A SPORTS FACILITIES STUDY AND AUDIT WITH
NATIONAL ASSOCIATION OF SPORTS COMMISSIONS
THE STATE OF TEXAS
THE CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
KNOW ALL BY THESE PRESENTS
THIS AGREEMENT for professional consulting services related to a sports facilities
study and audit (hereinafter 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 "City") and NATIONAL ASSOCIATION OF
SPORTS COMMISSIONS, located at 9916 Carver Road, Suite 100, Cincinnati, OH 45242
(hereinafter "Consultant" or "NASC").
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.
City reserves the right to review the Agreement at any time, and may elect to terminate
the Agreement with or without cause or may elect to continue.
00296884'ss2
CM -2014-396
1.02 SCOPE OF WORK
Consultant shall perform its services in accordance with the attached document
(hereinafter referred to as "Scope of Work" and attached as Exhibit "A" and incorporated herein
for all purposes). Consultant shall satisfactorily provide all services and deliverables described
under the referenced Scope of Work. 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 a professional and workmanlike
manner.
Consultant shall not undertake work that is beyond the Scope of Work set forth in Exhibit
"A," however, either party may make written requests for changes to the Scope of Work. To be
effective, a change to the Scope of Work must be negotiated and agreed to in all relevant details,
and must be embodied in a valid Supplemental Agreement as described in Section 1.04 hereof.
1.03 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, City agrees to pay Consultant Thirty Thousand and no/100 Dollars ($30,000.00).
Payment for Reimbursable Expenses: Reimbursement for travel expenses shall be for
actual expenses incurred without markup. Payment for allowable reimbursable expenses shall
not exceed Five Thousand and no/100 Dollars ($5,000.00).
Not -to -Exceed Total Payment: Unless subsequently changed by Supplemental
Agreement, Consultant's total compensation for consulting services and reimbursable expenses
hereunder shall not exceed Thirty-five Thousand and no/100 Dollars ($35,000.00). This
amount represents the absolute limit of City's liability to Consultant hereunder unless changed
by Supplemental Agreement.
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.
1.04 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
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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.
1.05 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit detailed invoices to
the City for services rendered. Such invoices for professional services shall track the referenced
Scope of Work, and shall detail the services performed, along v.ith 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.
Should additional backup material be requested by City, 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 inspecting and auditing.
If City has any dispute with work performed, then then City shall notify Consultant
within thirty (30) days after receipt of invoice. In the event of any dispute regarding the work
performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed
services or (b) provide City with an appropriate credit.
Payment 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 1.08 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.
1.06 LIMITATION TO SCOPE OF WORK
Consultant and City agree that the scope of services to be performed is enumerated in
Exhibit "A," 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.
1.07 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.
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1.08 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 cause 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.
1.9 TERMINATION
This Agreement may be terminated for any of the following conditions:
(1)
By City for reasons of its own, with or without cause, and not subject to the
mutual consent of any other party, provided a written termination notice is given
to Consultant not less than thirty (30) days prior to termination.
(2) By mutual agreement and consent of the parties, provided such agreement is in
writing.
(3)
By either party for failure by the other to perform the services set forth herein in a
satisfactory manner, provided such notice is given to the other party in writing.
Should City terminate this Agreement as herein provided, no fees other than fees due and
payable at the time of termination shall thereafter be paid to Consultant. City shall pay
Consultant for all uncontested services performed to date of notice of termination.
If City terminates this Agreement for default on the part of the Consultant, then City shall
give consideration to the actual costs incurred by Consultant in performing the work to the date
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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.
The termination of this Agreement and payment of an amount in settlement as set forth
above shall extinguish all rights, duties, and obligations of City and the Consultant to fulfill
contractual obligations. Termination under this section shall not relieve the terminated party of
any obligations or liabilities which occurred prior to cancellation.
1.10 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 performs its services required by this Agreement.
(3)
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and City shall not hire, supervise, or pay assistants to help Consultant.
(5)
Neither Consultant nor its employees or subcontractors shall receive training from
Cityin skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
(7)
Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
1.11 NON -SOLICITATION
All parties agree that they shall not directly or indirectly solicit for employment, employ,
or otherwise retain staff of the other during the term of this Agreement.
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1.12 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 hold all confidential information in the strictest confidence and
not make any use thereof other than for the performance of this Agreement. Notwithstanding the
foregoing, the parties recognize and understand that City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
Any and all materials created and developed by Consultant in connection with services
performed under this Agreement, including all trademark and copyright rights, shall be the sole
property of City at the expiration of this Agreement.
1.13 WARRANTIES
Consultant warrants that all services performed shall be performed consistent with
generally prevailing professional or industry standards, and be performed in a professional and
workmanlike manner. Consultant shall re -perform any work no in compliance with this
warranty.
1.14 INDEMNIFICATION
Consultant agrees to hold harmless, exempt, and indemnify City, its officers, agents,
directors, servants, representatives and employees, from and against any and all suits, actions,
legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and
claims of any character, type, or description, including but not limited to any and all expenses of
litigation, court costs, attorneys' fees and all other costs and fees incident to any work done as a
result hereof.
To the extent allowable by law, City agrees to hold harmless, exempt, and indemnify
Consultant, its officers, agents, directors, servants, representatives and employees, from and
against any and all suits, actions, legal proceedings, demands, costs, expenses, losses, damages,
fines, penalties, liabilities and claims of any character, type, or description, including but not
limited to any and all expenses of litigation, court costs, attorneys' fees and all other costs and
fees incident to any work done as a result hereof.
1.15 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.
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1.16 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:
(I) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3)
Withhold state or federal income tax from any of Consultant's payments.
If requested, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
1.17 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.
1.18 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.
1.19 DESIGNATION OF REPRESENTATIVES
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Cheryl Delaney, Finance Director
City of Round Rock
221 East Main Street
Round Rock, TX 78664
1.20 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
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(t)
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:
Don Schumacher, Executive Director
National Association of Sports Commissions
9916 Carver Road, Suite 100
Cincinnati, OH 45242
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.21 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.
1.22 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.
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1.23 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.
1.24 ATTORNEYS' FEES
In the event that any lawsuit is brought by one party against any of the other parties in
connection with this Agreement, the prevailing party shall be entitled to seek to recover its
reasonable costs and reasonable attorneys' fees.
1.25 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
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.
1.26 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.
1.27 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,
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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.
1.28 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.
1.29 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
No delay or omission by either party in exercising any right or power shall impair such
right or power or be construed to be a waiver. A waiver by either party of any of the covenants
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in
writing and signed by an authorized representative of the party against whom such waiver or
discharge is sought to be enforced.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered one original. City agrees to provide Consultant with one fully executed original.
[Signatures are on the following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock, Texas
By:
Printed Name:
Title:
Date Signed:
For City, Attest:
By:
Sara L. White, City Clerk
For City, Approved as to Form:
By: 1�.�••
_
Stephan N Sheets, City Attorney
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National Association of Sports
Commissions
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Printed Name
Title: l-
Date Signed:
MASSUMBill
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NATIONAL ASSOCIATION OP
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SPORTS
COMMISSIONS
9916 Carver Road, Suite 100, Cincinnati, Ohio45242
Phone: 513.281.3888 Fax: 513281.1765
NASCOSpor[sCommissions.or3
www SportsCommissions. org
Scope of Services
We understand you would like us to conduct a thorough inventory of the sports facilities
in your market, make recommendations on how to best package your capabilities for the
sports event travel industry, present estimates of the impact on your economy, and also
to provide an analysis of what might happen if modifications were made to select
existing facilities or if new facilities were planned. Our report would include
recommendations on what kind(s) of facilities should be considered, where they might
be located, and our reasoning.
You also wish to be able to estimate the approximate daily expenditures by visitors
attending events at Round Rock Sports Center and arrive at estimates of the economic
impact produced by that spending. These estimates will enable you to project estimated
results for future events.
Accordingly, we are providing a scope of services as follows. The National Association
of Sports Commissions agrees to provide no less than the following:
> Site surveys of the existing competition quality sports facilities in Round Rock. There
will be no need to include purely recreational facilities.
➢ An examination of your recent history/experience hosting sports events.
Interviews with area sports organizers (i.e. high school and university sports
administrators, youth/adult sports organization leadership, representatives of the
hospitality industry, CVB personnel tasked with responsibilities for the sports event
travel market and others we may jointly agree to meet with). The purpose(s) of these
interviews will be to determine your capabilities to host sports events and
tournaments that will attract visitors to your community.
As part of our conversations and visits, we will make note of the improvements to
current facilities or the addition of new facilities that might improve your hosting
capabilities.
v A comprehensive report covering the suitability of existing facilities for regional or
national competition, a strengths, weaknesses, and opportunities analysis, and
recommendations on how to best package your features and benefits to maximize
use of these facilities.
v A list of event owners we feel are able to use what you have, the way things are
currently, with a focus on soft periods (in terms of hotel occupancy).
➢ An analysis of the potential economic impact of changes to your current marketing
strategies.
EXHIBIT "A"
Eonnecing People and Woos in the Sports Event Industry
v A study conducted by the University of Texas and supervised by the NASC to
develop an understanding of the spending patterns by visitors to events at the sports
center and the estimated economic impact produced by that spending.
Schedule
We believe we can complete the services and reports connected with the sports facilities
audit within about ten weeks from the start of the site visits and interviews, assuming
normal schedule delays, etc. We anticipate the survey trip may take place in May, 2014.
It is agreed that on the initial trip discussions will be held with representatives of the
University of Texas that will lead to agreement on the protocol for conducting interviews
in connection with events at the sports center that will enable estimates of direct visitor
spending and resulting projections of economic impact.
It is anticipated that at least two trips will be required: one for site visits and interviews
(most of four days including all local interviews and the meeting with the University of
Texas) and a second trip to present and discuss the report and complete face-to-face
supervisory work on the study with university personnel.
The balance of the work will be accomplished from our office in Cincinnati, including
electronic collaboration on the university -directed study for the balance of 2014.
Fee
We propose to provide these services for a not -to -exceed fee of Thirty-five Thousand
Dollars ($35,000.00). Reimbursable expenses will be reimbursed in the actual amounts
only with no markup. We would appreciate receipt of your travel polices. Progress
payments shall be as follows:
Completion of visits and interviews
Delivery of report draft
Presentation of final report
Completion of work with university
Reimbursable expenses Not -to -Exceed
NOT -TO EXCEED TOTAL
EXHIBIT "A"
$ 10,000.00
$ 10,000.00
$ 5,000.00
$ 5,000.00
$ 5,000.00
$ 35,000.00