R-04-01-22-14D4 - 1/22/2004RESOLUTION NO. R -04-01-22-14D4
WHEREAS, the City of Round Rock desires to retain professional
consulting services for two telephone surveys, and
WHEREAS, Jeff Montgomery & Associates, Inc. has submitted a
Consulting Agreement for Statistical Telephone Poll Services to provide
said services, and
WHEREAS, the City Council desires to enter into said Agreement
with Jeff Montgomery & Associates, Inc., Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Consulting Agreement for Statistical Telephone
Poll Services with Jeff Montgomery & Associates, Inc., a copy of same
being attached hereto as Exhibit "A" and incorporated herein for all
purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Cade, as amended.
RESOLVED this 22nd day of January, 2004.
10
NY4ff &&WELL, Mayor
City of Round Rock, Texas
AT � ( � ^
CHRISTINE R. MARTINEZ(,, City Secret4y
@I`FDesktUp\::ODMA/WORLDOX/O-/WDOX/RESOLUTI%rl'.)122D4.WPD/sc
CITY OF ROUND ROCK CONSULTING AGREEMENT
WITH JEFF MONTGOMERY & ASSOCIATES, INC.
FOR STATISTICAL TELEPHONE POLL SERVICES
THIS CONSULTING AGREEMENT for professional services for writing, performing,
and analyzing statistical telephone polls ("Agreement") is made by and between the City of
Round Rock, a Texas home rule municipal corporation, whose offices are located at 221 East
Main Street, Round Rock, Texas 78664-5299, ("City") and Jeff Montgomery & Associates, Inc.
( "Consultant"), whose offices are located at 2101 South IH 35, Suite 432, Austin, Texas 78741.
RECITALS:
WHEREAS, City has determined that there is a need for two statistical telephone polls to
provide information necessary to update the City's General Plan and to obtain citizen feedback;
and
WHEREAS, City has previously contracted with Consultant to conduct biennial surveys
since 1998; and
WHEREAS, City desires to contract for professional services 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 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.
2004. The term of this Agreement shall be for twelve (12) months beginning from February 1,
City reserves the right to review the project at any time, including at the end of any
deliverable or phase, and may elect to terminate the project with or without cause or may elect to
continue with the next deliverable or phase.
0:\wdo.\CORRlgnl\--g.t\W%1925.DOC/jkg
EXHIBIT
b
"A"
1.02 SCOPE OF SERVICES; AND PAYMENT THEREFOR
In consideration for the professional services to be performed by Consultant, City agrees
to pay Consultant a total sum not to exceed Thirty-six Thousand and No/100 Dollars
($36,000.00), in payment for the Scope of Services deliverables as delineated hereafter:
Deliverable
Poll # 1:
Draft and finalize written script for first poll;
oversee paid phoners in Consultant's offices in
the performance of first poll (minimum sample
of 400 residents of Round Rock)
Provide City with two analyses (2 sets of crosstabs
with reports), and 10 summary handout reports for
first poll
Poll #2:
Draft and finalize written script for second poll;
oversee paid phoners in Consultant's offices in
performance of second poll (minimum sample
of 400 residents of Round Rock)
Provide City with two analyses (2 sets of crosstabs
with reports), and 10 summary handout reports for
second poll
Polls #I and #2:
Amount and Time Payable
$5,000.00 due by beginning of
performance of first poll
$13,000.00 due upon delivery
of analyses for first poll
$5,000.00 due by beginning of
performance of second poll
$13,000.00 due upon delivery
of analyses for second poll
Jeff Montgomery shall be available for making personal presentations to City Council and/or
City staff, as and when requested by City, relating to review of the results of each poll.
Consultant's compensation for professional services shall not exceed, without written
consent, the amounts indicated herein. City shall pay, strictly within the confines of the not -to -
exceed sum recited herein, Consultant's professional fees for work done on behalf of City.
1.03 TERMS OF PAYMENT
To receive payment, Consultant shall prepare and submit a detailed invoice to City for
services rendered. If City has any dispute with work performed, then City shall notify Consultant
4
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.
1.04 REQUIRED REPORTS
Consultant agrees to provide City with any necessary detailed final written reports,
together with all information gathered during the course of the project. Additionally, Consultant
agrees to provide City with any necessary oral presentations of such detailed final written
reports, at City's designation and at no additional cost to City.
1.05 LIMITATION TO SCOPE OF WORK
Consultant and City agree that the scope of services to be performed is generally
enumerated in Section 1.03 herein. Notwithstanding anything herein to the contrary, the parties
agree that City retains absolute discretion and authority for all funding decisions, such decisions
to be based solely on criteria accepted by City which may be influenced by but not be dependent
on Consultant's work.
1.06 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.
1.07 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the
day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee of one percent (I%) for payments not made
in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
1. There is a bona fide dispute between City and Consultant concerning the supplies,
materials, or equipment delivered or the services performed which causes the
payment to be late; or
2. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
3
3. There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
4. Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
1.08 TERMINATION
This Agreement may be terminated for any of the following conditions:
By City for reasons of its own, with or without cause, and not subject to the
mutual consent of any other party, such written termination notice to be given to
the other party not less than thirty (30) days prior to termination.
2. By mutual agreement and consent of the parties, such agreement to be in writing.
3. By either party for failure by the other party to perform the services set forth
herein in a satisfactory manner, such termination notice to be given in writing to
the other party.
4. By either party for failure by the other party to fulfill its obligations herein
5. By satisfactory completion of all services and obligations described herein
Should City terminate this Agreement as herein provided, no fees other than fees due and
payable at the time of termination shall thereafter by paid to Consultant. City shall pay
Consultant for all uncontested services performed to date of notice of termination.
If either party defaults in performance of this Agreement or if City terminates this
Agreement for default on the part of the other party, 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.
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 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 cancellation.
1.09 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
0
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:
Consultant has the right to perform services for others during the term hereof.
2. Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
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
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.
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.
1.10 NON -SOLICITATION
All parties hereto 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.
1.11 CONFIDENTIALITY
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 via the telephone polls, shall be held in confidence by
Consultant as set forth hereunder. All parties agree 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 accord therewith.
1.12 WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
5
professional and workmanlike manner. Consultant shall re -perform any work not in compliance
with this warranty.
1.13 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.
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.
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
1.14 ASSIGNMENT AND DELEGATION
No party may assign any rights or delegate any duties under this Agreement without the
other party's prior written approval.
1.15 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
1. Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
2. Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
3. Withhold state or federal income tax from any of Consultant's payments.
If requested, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
0
1.16 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 the recipient's address as stated in this Agreement;
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:
Jeff Montgomery & Associates, Inc.
2101 South IH 35, Suite 432
Austin, TX 78741
Notice to City:
City of Round Rock
James Nuse, City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney's Office
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.
1.17 APPLICABLE LAW
The laws of the State of Texas shall govern this Agreement. Venue shall lie in
Williamson County, Texas.
1.18 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including the exhibits listed below,
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.
7
No modifications of this Agreement will be binding on any of the parties unless acknowledged in
writing by the duly authorized governing body or representative for each party.
1.19 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.
1.20 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.
1.21 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to City if its failure to
perform or its substantial delay in performance is due to City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.22 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 of 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
N.
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.
1.23 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.
The failure of a party to exercise any right hereunder shall not operate as a waiver of said
party's right to exercise such right or any other right in the future.
City agrees to provide Consultant with one (1) fully executed original Agreement.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered as one original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
CITY OF ROUND ROCK, TEXAS ATTEST:
By:
Nyle Maxwell, Mayor
Date Signed:
JEFF MONTGOMERY & ASSOCIATES, INC.
By:
Jeff on o resident
Dat ign — (�
X
Christine R. Martinez, City Secretary
Date Signed:
DATE: January 16, 2004
SUBJECT: City Council Meeting - January 22, 2004
ITEM: 14.D.4. Consider a resolution authorizing the Mayor to execute a
Consulting Services Agreement with Jeff Montgomery and
Associates, Inc. for phone surveys regarding the City's General
Plan and the City's customer service performance.
Resource: Will Hampton, Communications Director
History: The City has conducted a biennial survey since 1992. The second survey
will be used by the Planning Department in updating the General Plan.
Funding:
Cost: $36,000
Source of Funds: General Fund
Outside Resources: Jeff Montgomery and Associates, Inc.
Impact/Benefit: The Council and staff use the survey to gauge progress and citizen
reaction to a wide variety of city projects and programs.
Public Comment: N/A
Sponsor: N/A
EXECUTED
DOCUMENT
FOLLOWS
CITY OF ROUND ROCK CONSULTING AGREEMENT
WITH JEFF MONTGOMERY & ASSOCIATES, INC.
FOR STATISTICAL TELEPHONE POLL SERVICES
THIS CONSULTING AGREEMENT for professional services for writing, performing,
and analyzing statistical telephone polls ("Agreement") is made by and between the City of
Round Rock, a Texas home rule municipal corporation, whose offices are located at 221 East
Main Street, Round Rock, Texas 78664-5299, ("City") and Jeff Montgomery & Associates, Inc.
( "Consultant"), whose offices are located at 2101 South IH 35, Suite 432, Austin, Texas 78741.
RECITALS:
WHEREAS, City has determined that there is a need for two statistical telephone polls to
provide information necessary to update the City's General Plan and to obtain citizen feedback;
and
WHEREAS, City has previously contracted with Consultant to conduct biennial surveys
since 1998; and
WHEREAS, City desires to contract for professional services 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 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.
2004. The term of this Agreement shall be for twelve (12) months beginning from February 1,
City reserves the right to review the project at any time, including at the end of any
deliverable or phase, and may elect to terminate the project with or without cause or may elect to
continue with the next deliverable or phase.
0:\wdm\CORR\gnl\comagmt\00061925.DOC/jkg
P -L)4-0/ as -/J -/o4
1.02 SCOPE OF SERVICES; AND PAYMENT THEREFOR
In consideration for the professional services to be performed by Consultant, City agrees
to pay Consultant a total sum not to exceed Thirty-six Thousand and No/100 Dollars
($36,000.00), in payment for the Scope of Services deliverables as delineated hereafter:
Deliverable
Poll #l:
Draft and finalize written script for first poll;
oversee paid phoners in Consultant's offices in
the performance of first poll (minimum sample
of 400 residents of Round Rock)
Provide City with two analyses (2 sets of crosstabs
with reports), and 10 summary handout reports for
first poll
Poll #2:
Draft and finalize written script for second poll;
oversee paid phoners in Consultant's offices in
performance of second poll (minimum sample
of 400 residents of Round Rock)
Provide City with two analyses (2 sets of crosstabs
with reports), and 10 summary handout reports for
second poll
Polls #I and #2:
Amount and Time Payable
$5,000.00 due by beginning of
performance of first poll
$13,000.00 due upon delivery
of analyses for first poll
$5,000.00 due by beginning of
performance of second poll
$13,000.00 due upon delivery
of analyses for second poll
Jeff Montgomery shall be available for making personal presentations to City Council and/or
City staff, as and when requested by City, relating to review of the results of each poll.
Consultant's compensation for professional services shall not exceed, without written
consent, the amounts indicated herein. City shall pay, strictly within the confines of the not -to -
exceed sum recited herein, Consultant's professional fees for work done on behalf of City.
1.03 TERMS OF PAYMENT
To receive payment, Consultant shall prepare and submit a detailed invoice to City for
services rendered. If City has any dispute with work performed, then City shall notify Consultant
2
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.
1.04 REQUIRED REPORTS
Consultant agrees to provide City with any necessary detailed final written reports,
together with all information gathered during the course of the project. Additionally, Consultant
agrees to provide City with any necessary oral presentations of such detailed final written
reports, at City's designation and at no additional cost to City.
1.05 LIMITATION TO SCOPE OF WORK
Consultant and City agree that the scope of services to be performed is generally
enumerated in Section 1.03 herein. Notwithstanding anything herein to the contrary, the parties
agree that City retains absolute discretion and authority for all funding decisions, such decisions
to be based solely on criteria accepted by City which may be influenced by but not be dependent
on Consultant's work.
1.06 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.
1.07 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the
day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee of one percent (1%) for payments not made
in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
There is a bona fide dispute between City and Consultant concerning the supplies,
materials, or equipment delivered or the services performed which causes the
payment to be late; or
2. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
3
3. There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
4. Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
1.08 TERMINATION
This Agreement may be terminated for any of the following conditions:
By City for reasons of its own, with or without cause, and not subject to the
mutual consent of any other party, such written termination notice to be given to
the other party not less than thirty (30) days prior to termination.
2. By mutual agreement and consent of the parties, such agreement to be in writing.
3. By either party for failure by the other party to perform the services set forth
herein in a satisfactory manner, such termination notice to be given in writing to
the other party.
4. By either party for failure by the other party to fulfill its obligations herein.
By satisfactory completion of all services and obligations described herein.
Should City terminate this Agreement as herein provided, no fees other than fees due and
payable at the time of termination shall thereafter by paid to Consultant. City shall pay
Consultant for all uncontested services performed to date of notice of termination.
If either party defaults in performance of this Agreement or if City terminates this
Agreement for default on the part of the other party, 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.
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 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 cancellation.
1.09 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
4
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and City agree to the following rights
consistent with an independent contractor relationship:
1. Consultant has the right to perform services for others during the term hereof
2. Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
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
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.
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.
1.10 NON -SOLICITATION
All parties hereto 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.
1.11 CONFIDENTIALITY
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 via the telephone polls, shall be held in confidence by
Consultant as set forth hereunder. All parties agree 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 accord therewith.
1.12 WARRANTIES
Consultant warrants 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 warranty.
1.13 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.
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.
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
1.14 ASSIGNMENT AND DELEGATION
No party may assign any rights or delegate any duties under this Agreement without the
other party's prior written approval.
1.15 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
1. Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
2. Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
3. Withhold state or federal income tax from any of Consultant's payments.
If requested, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
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1.16 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 the recipient's address as stated in this Agreement;
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:
Jeff Montgomery & Associates, Inc.
2101 South IH 35, Suite 432
Austin, TX 78741
Notice to City:
City of Round Rock
James Nuse, City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney's Office
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.
1.17 APPLICABLE LAW
The laws of the State of Texas shall govern this Agreement. Venue shall lie in
Williamson County, Texas.
1.18 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including the exhibits listed below,
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.
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No modifications of this Agreement will be binding on any of the parties unless acknowledged in
writing by the duly authorized governing body or representative for each party.
1.19 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.
1.20 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.
1.21 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to City if its failure to
perform or its substantial delay in performance is due to City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.22 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 of 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.
1.23 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.
The failure of a party to exercise any right hereunder shall not operate as a waiver of said
party's right to exercise such right or any other right in the future.
City agrees to provide Consultant with one (1) fully executed original Agreement.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered as one original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
CITY OF ROUND ROCK, TEXAS.
By:
#VWMaxwj1l, May
Date Signed:
JEFF MONTGOMERY & ASSOCIATES, INC.
By:
Jeff ont e , ent
Da Signed:
X
ATTEST:
Christine R. Martinez, i Sef�r t y
Date Signed: % - �I- V 7