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R-05-03-10-14C1 - 3/10/2005RESOLUTION NO. R -05-03-10-14C1 WHEREAS, the City of Round Rock desires to retain professional consulting services to conduct an office space programming study for the proposed City Hall, and WHEREAS, Page Southerland Page, L.L.P. has submitted an Agreement for Consulting Services for Office Space Architectural Programming Services for Proposed City Hall to provide said services, and WHEREAS, the City Council desires to enter into said Agreement with Page Southerland Page, L.L.P., 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 an Agreement for Consulting Services for Office Space Architectural Programming Services for Proposed City Hall with Page Southerland Page, L.L.P., a copy of said Agreement 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 Code, as amended. RESOLVED this 10th day of March, 20 ATTEST NYL. 17'WE L, Mayor Ci y .f Round Rock, Texas CHRISTINE R. MARTINEZ, City Secre @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R50310C1.WPD/sc CITY OF ROUND ROCK AGREEMENT FOR CONSULTING SERVICES FOR OFFICE SPACE ARCHITECTURAL PROGRAMMING SERVICES FOR PROPOSED CITY HALL WITH PAGE SOUTHERLAND PAGE, LLP This Agreement (hereinafter referred to as the "Agreement") is made by and between the City of Round Rock, a Texas home -rule municipal corporation, with offices located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and Page Southerland Page, LLP, with offices located at 400 West Cesar Chavez, Suite 500, Austin, Texas 78701-3883 (hereinafter referred to as the "Consultant"). This Agreement is for consulting services relating to the City of Round Rock's need for development of a forecast of office space needs and architectural programming services for a proposed City Hall. RECITALS: WHEREAS, City has determined that there is a need for the delineated consulting services; and WHEREAS, City desires to contract for such consulting services; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 EFFECTIVE DATE, DURATION, AND TERM This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. The term of this Agreement shall be until full and satisfactory completion of the work specified herein is achieved, but in no event later than three (3) months from the effective date of this Agreement. 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. 00082650/jkg a EXHIBIT 1.02 CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant a total sum not to exceed Thirty-three Thousand Six Hundred and No/100 Dollars ($33,600.00). Said sum of $33,600.00 is a fixed not -to -exceed amount, and shall be paid for services and the Scope of Work deliverables as delineated in Section 1.03. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.04. 1.03 SCOPE OF WORK For purposes of this Agreement, Consultant has issued its Scope of Work for the assignments delineated herein. Such Scope of Work is delineated in this Section 1.03. This Agreement and any exhibits shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Consultant shall satisfactorily provide all services and deliverables described under the referenced Scope of Work within the contract term specified in Section 1.01. Consultant's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement and in accordance with the referenced Scope of Work. 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 herein in Section 1.03. 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 1.05 hereof. Scope of Work The parties agree that the purpose of this study is to determine which personnel should be included in the proposed City Hall, and to determine anticipated square footage of office space necessary over time in the proposed City Hall. The parties further agree that an Office Space Program shall be developed by Consultant that includes, by way of illustration and not limitation, the following: (a) a summary of existing office square footage to document areas currently used for office space, with the focus on blocks of space used by departments rather than on a room -by -room level of detail; (b) a forecast of office space needed in 2005, in 2010, in 2015, and in 2020, focusing on blocks of space used by departments rather than on a room -by -room level of detail; and (c) documentation of preferred adjacencies between groups. The parties further agree that the Scope of Work shall include only City Hall -related office space, excluding police, fire, library, non -office spaces, and other office space expected to 2 remain remote. For purposes of this study, the best estimation of City and Consultant of City Hall -related office space involves approximately 350 people. Component 1: Documentation of Existing Space Consultant will conduct a brief documentation of existing office square footages in use by all included departments. This Component 1 will include collecting as many existing floor plans as possible and, where needed or requested by City, sketching up approximate floor sizes and gathering rough dimensions. The parties agree that this Component 1 is not intended as a complete inventory of offices or creation of as -built drawings. Component 2: Vision/Project Scoping Session Consultant will conduct an initial meeting with approximately five (5) key decision - makers from City, will review City's list of proposed participants in this study, will review City - provided population and staff projections, and will gather a variety of qualitative goals for the project. Component 3: Programming Based upon the result of the Vision document generated from Component 2, Consultant will prepare brief summary questionnaires for completion by up to twelve (12) selected directors representing all of the office spaces included in this study. Consultant will then conduct a series of up to twelve (12) back-to-back programming interviews to review existing spaces, personnel projections, special spatial needs, and the degree of adjacency needed with other groups. Consultant will then summarize all of the gathered information and prepare same for executive review. Component 4: Documentation Consultant will document all information and results in an Executive Summary Program Document formatted so that it may be used as one chapter in a Comprehensive Facility Plan for all City facilities. The parties note that additional chapters have not been included in this study at this time. Deliverables in Addition to Components 1-4: Deliverables include, by way of illustration and not limitation, the following: (a) Executive Summary Program Document; (b) Project Goals; (c) Pertinent Facts - to include City's population and personnel projections, current space by department, and other existing conditions; 3 (d) Concepts and Qualitative Suggestions/Strategies - designed to achieve the Project Goals, including desired adjacencies, potential changes in flows of people or materials, potential future changes, and the like; and (e) Area Projections - over time, by department (space list). Requirements for Delivery of Executive Summary Program Document: Consultant shall deliver a total of thirteen (13) copies of the Executive Summary Program Document to City within the term of this Agreement, with twelve (12) of those copies being bound and with the remaining one (1) copy being unbound and suitable for City to make additional copies in its sole discretion. The parties anticipate that the printed document will be on 8-1/2" x 11" paper, will be primarily black and white, will be spiral bound, and will contain select color pages and select 11" x 17" pages. Consultant shall also deliver one (1) CD with copies of other final components created digitally, i.e. PowerPoint, Word, Excel, and graphic image files. The parties agree that there is no requirement that the CD include every sketch and diagram created during this study. Additional Services: In the event that City increases the scope of work, or City extends the duration of the project with additional requests not delineated in this Agreement, or City requests additional follow-up meetings or presentations not delineated in this Agreement, then Consultant may bill such additional time on an hourly basis using its standard hourly rates in effect when the charges are incurred. The parties agree that Consultant's fees stated in this Agreement do not include any costs associated with the time or expenses of meeting participants or other consultants not specifically noted. The following additional services are also available from Consultant, but will be provided only upon specific written request from City and at an additional fee: (1) Coordination with demographers or other consultants; (2) Development of a computer-aided facilities management system for tracking space utilization; Stack and block planning; Comprehensive multi -campus facility planning; Landscape design; and In-house full service architecture and engineering. 1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES Payment for Services: In consideration for the consulting services to be performed by Consultant, City agrees to pay Consultant the following "Payment for Services:" 4 Fees for the listed professional services and deliverables in the total amount of Thirty- three Thousand Six Hundred and No/100 Dollars ($33,600.00) shall be paid by City in the following manner: Upon delivery of the Executive Summary Program Document and its acceptance by City, City shall be invoiced by Consultant and City shall thereupon make its payment of $33,600.00. Payment for Reimbursable Expenses: Payment for customary reimbursable expenses, including administrative charges and out-of-pocket expenses, shall not exceed the maximum sum of Five Thousand and No/100 Dollars ($5,000.00). City shall pay Consultant for reimbursable expenses, as appropriately invoiced and documented, at actual cost. Reimbursable expenses shall include but shall not be limited to such items as the following: (1) Transportation charges for local and out-of-town travel; (2) Hotel charges; (3) Subsistence charges; and (4) Routine administrative expenses including such items as long distance telephone calls, facsimiles, courier services, postage, photocopy charges, supplies, reproduction charges, and shipping. Not -to -Exceed Total Payment for Professional Services: Unless subsequently changed by Supplemental Agreement to this Agreement, Consultant's total compensation for consulting services hereunder shall not exceed Thirty-three Thousand Six Hundred and No/100 Dollars ($33,600.00), and Consultant's total reimbursement for allowable reimbursable expenses shall not exceed Five Thousand and No/100 Dollars ($5,000.00). These amounts represent the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to - exceed sums recited herein, Consultant's professional fees and reimbursable expenses for work done on behalf of City. Deductions: No deductions shall be made for Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions: No additions shall be made to Consultant's compensation based upon project claims, whether paid by City or denied. 1.05 SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by the City Council or 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 5 shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. 1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment following delivery of all deliverables, Consultant shall prepare and submit a detailed invoice to City, in accordance with the delineation contained herein in Section 1.04, for services rendered. Such invoice for professional services shall track the referenced Scope of Work, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the invoice submitted by Consultant and approved by City. Such invoice shall conform to the schedule of services and costs in connection therewith. Should additional backup material be requested by City relative to service deliverables, Consultant shall comply promptly. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. Payment of Invoices: City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of an invoice, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.10 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which are late because of a good faith dispute between Consultant and City or because of amounts which City has a right to withhold under this Agreement or state law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. 1.07 REQUIRED REPORTS Consultant agrees to provide City with all required draft reports, progress reports, and a detailed final written report, together with all information gathered and materials developed during the course of the project. Additionally, Consultant agrees to provide City with up to two (2) oral presentations of such written reports, at City's designation and at no additional cost to City, provided such presentations are scheduled within the term of this Agreement. Consultant agrees to provide City with copies of the reports as delineated herein, and a version of the final report in digital format. 1.08 LIMITATION TO SCOPE OF WORK Consultant and City agree that the scope of services to be performed is enumerated in Section 1.03 herein, and may not be changed without the express written agreement of the 6 parties. Notwithstanding anything herein to the contrary, the parties agree that City retains absolute discretion and authority for all funding decisions, such to be based solely on criteria accepted by City which may be influenced by but not be dependent on Consultant's work. 1.09 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by 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. 1.10 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: (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) 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. 1.11 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, 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 7 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. 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 is unsatisfactory as determined by City or which is not submitted in compliance with the terms of this Agreement. Default: City may terminate this Agreement, in whole or in part, for default if City provides Consultant with written notice of such default and Consultant fails to cure such default to the satisfaction of City within ten (10) business days of receipt of such notice (or a greater time if permitted by City). If Consultant defaults in performance of this Agreement and if City terminates this Agreement for such default, then City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to City, the cost to City of employing another firm to complete the useable work, and other relevant factors will affect the value to City of the work performed at the time of default. Consultant shall not be entitled to any lost or anticipated profits for work terminated for default hereunder. The termination of this Agreement for default shall extinguish all rights, duties, and obligations of City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require City to pay for any work with is unsatisfactory as determined by City, or which is not submitted in compliance with the terms of this Agreement. 1.12 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not City's employee. Consultant's employees or subcontractors are not City's employees. This Agreement does not create a partnership, employer-employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and City agree to the following rights consistent with an independent contractor relationship: 8 (1) Consultant has the right to perform services for others during the term hereof. (2) Consultant has the sole right to control and direct the means, manner and method by which services required by this Agreement will be performed. Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (3) (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. 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. (7) 1.13 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither City nor Consultant shall offer employment to or shall employ any person employed then or within the preceding twelve (12) months by the other or any affiliate of the other if such person was involved, directly or indirectly, in the performance of this Agreement. 1.14 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 cause its employees and any third parties who are otherwise assisting, advising or representing City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by City or its designated representative concerning provision of services. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. City shall furnish information which includes but is not limited to access to City property, preliminary information and/or data regarding City, pertinent correspondence with other local municipal and planning officials, previous analyses or studies, and other pertinent information. Consultant agrees, within ten (10) 9 days of the effective date of this Agreement, to provide City with a comprehensive and detailed information request list. 1.15 CONFIDENTIALITY; AND MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that City is subject to the Texas Public Information Act and its duties run in accordance therewith. All data relating specifically to City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential information of Consultant. The City's confidential information and Consultant's confidential information is collectively referred to as "Confidential Information." Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party's prior written consent, which consent shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the confidentiality of the other party's Confidential Information and to advise their employees 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. 10 Neither City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for City and delivered to City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than the Deliverables). Consultant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to Consultant. City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for the City's own use including for the purposes for which they were delivered. 1.16 WARRANTIES Consultant warrants that all services performed hereunder shall be performed with the reasonable care and competence which is ordinarily applied by reasonably prudent design professionals practicing under similar circumstances and conditions. Consultant shall re -perform any work not in compliance with this warranty. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 1.17 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event City shall give written notification to Consultant; thereafter, (a) Consultant 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 in Section 1.11, then this Agreement may be terminated for default. In no event will Consultant be liable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by City, its directors, employees or agents. In no event shall Consultant be liable to City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 11 1.18 INDEMNIFICATION Consultant and City each agree to indemnify and hold harmless the other from and against any and all amounts payable under any judgment, verdict, court order or settlement for death or bodily injury or the damage to or loss or destruction of any real or tangible personal property to the extent arising out of the indemnitor's negligence in the performance of this Agreement. Consultant agrees to indemnify and hold harmless City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to City in connection with the performance of this Agreement. Should City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non -infringing while yielding substantially equivalent results. If neither of the above options is or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, City shall return such deliverables provided, and Consultant will refund to City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based upon (1) designs provided by or at the direction of City or (2) specifications or other information provided by or at the direction of City; or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. 1.19 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party may assign any rights or delegate any duties under this Agreement without the other party's prior written approval, which approval shall not be unreasonably withheld. 1.20 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. City will not do the following: 12 (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 any state or federal income tax from any payments which are made to Consultant. 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. 1.21 INSURANCE Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 13 Consultant shall also notify City, within twenty-four (24) hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and agents in their official capacities, or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Consultant and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with City. 1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Consultant, its consultants, agents, employees and subcontractors shall use professional efforts to comply with 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 licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to City at the expiration of the term of this Agreement. 1.23 FINANCIAL INTEREST PROHIBITED Consultant covenants and represents that Consultant, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required under this Agreement. 1.24 DESIGNATION OF REPRESENTATIVES City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: 14 Joseph L. Vining, AICP Executive Director of Community Development 116 East Main Street Round Rock, Texas 78664-5299 Telephone: 512-218-5420 Facsimile: 512-341-3153 Email: j1v22@round-rock.tx.us Consultant hereby designates the following representatives authorized to act in its behalf with regard to this Agreement: Michael Mace, AIA Senior Vice President Page Southerland Page, LLP 400 West Cesar Chavez, Suite 500 Austin, Texas 78701-3883 Telephone: 512-472-6721 Facsimile: 512-477-3211 Email: mmace@PSP.com Matthew F. Kreisle III, AIA Principal Page Southerland Page, LLP 400 West Cesar Chavez, Suite 500 Austin, Texas 78701-3883 Telephone: 512-472-6721 Facsimile: 512-477-3211 Email: mkreisle@PSP.com 1.25 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: (1) When delivered personally to recipient's address as stated herein; or (2) Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Consultant: Page Southerland Page, LLP 400 West Cesar Chavez, Suite 500 Austin, Texas 78701-3883 15 Notice to City: City Manager City of Round Rock 221 East Main Street Round Rock, TX 78664-5299 AND TO Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664-5246 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.26 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to enforcement of any 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 the State of Texas. 1.27 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties understand and expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 1.28 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall select one mediator and Consultant shall select one mediator and those two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. City and Consultant hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 16 1.29 FORCE MAJEURE Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or a breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to City if its failure to perform or its substantial delay in performance is due to City's failure to timely provide requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 1.30 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.31 STANDARD OF CARE Consultant represents that it is qualified by education and/or experience in the specific technical areas involved 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, with the reasonable care and competence which is ordinarily applied by reasonably prudent design professionals practicing under similar circumstances and conditions. 1.32 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any 17 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. OWNER: City of Round Rock, Texas Attest: By: Printed Name: Title: Date Signed: Approved as to Form: Stephan L. Sheets, City Attorney ARCHITECT: Page Southerland Page, LLP By: PSP Architect -Engineers, Inc. Managing Partner By: Matthew F. Kreisle III, Principal as officer of PSP A-E, Inc. 18 Christine R. Martinez, City Secretary Date Signed: DATE: March 3, 2005 SUBJECT: City Council Meeting - March 10, 2005 ITEM: 14.C.1. Consider a resolution authorizing the Mayor to execute an Agreement for Consulting Services for Office Space Architectural Programming Services for Proposed City Hall with Page Southerland Page, LLP. Department: Administration Staff Person: Joe Vining, Executive Director Community Development Justification: The city undertook a study in the late 1990's much has changed since that time. This information is needed prior to the schematic planning required to design the new City Hall. Funding: Cost: $33,600.00 plus expenses Source of funds: 2001 Bond Funds Outside Resources: None Background Information: None Public Comment: N/A CITY OF ROUND ROCK AGREEMENT FOR CONSULTING SERVICES FOR OFFICE SPACE ARCHITECTURAL PROGRAMMING SERVICES FOR PROPOSED CITY HALL WITH PAGE SOUTHERLAND PAGE, LLP This Agreement (hereinafter referred to as the "Agreement") is made by and between the City of Round Rock, a Texas home -rule municipal corporation, with offices located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and Page Southerland Page, LLP, with offices located at 400 West Cesar Chavez, Suite 500, Austin, Texas 78701-3883 (hereinafter referred to as the "Consultant"). This Agreement is for consulting services relating to the City of Round Rock's need for development of a forecast of office space needs and architectural programming services for a proposed City Hall. RECITALS: WHEREAS, City has determined that there is a need for the delineated consulting services; and WHEREAS, City desires to contract for such consulting services; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 EFFECTIVE DATE, DURATION, AND TERM This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. The term of this Agreement shall be until full and satisfactory completion of the work specified herein is achieved, but in no event later than three (3) months from the effective date of this Agreement. 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. 00082650/jkg 1.02 CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant a total sum not to exceed Thirty-three Thousand Six Hundred and No/100 Dollars ($33,600.00). Said sum of $33,600.00 is a fixed not -to -exceed amount, and shall be paid for services and the Scope of Work deliverables as delineated in Section 1.03. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.04. 1.03 SCOPE OF WORK For purposes of this Agreement, Consultant has issued its Scope of Work for the assignments delineated herein. Such Scope of Work is delineated in this Section 1.03. This Agreement and any exhibits shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Consultant shall satisfactorily provide all services and deliverables described under the referenced Scope of Work within the contract term specified in Section 1.01. Consultant's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement and in accordance with the referenced Scope of Work. 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 herein in Section 1.03. 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 1.05 hereof. Scope of Work The parties agree that the purpose of this study is to determine which personnel should be included in the proposed City Hall, and to determine anticipated square footage of office space necessary over time in the proposed City Hall. The parties further agree that an Office Space Program shall be developed by Consultant that includes, by way of illustration and not limitation, the following: (a) a summary of existing office square footage to document areas currently used for office space, with the focus on blocks of space used by departments rather than on a room -by -room level of detail; (b) a forecast of office space needed in 2005, in 2010, in 2015, and in 2020, focusing on blocks of space used by departments rather than on a room -by -room level of detail; and (c) documentation of preferred adjacencies between groups. The parties further agree that the Scope of Work shall include only City Hall -related office space, excluding police, fire, library, non -office spaces, and other office space expected to 2 remain remote. For purposes of this study, the best estimation of City and Consultant of City Hall -related office space involves approximately 350 people. Component 1: Documentation of Existing Space Consultant will conduct a brief documentation of existing office square footages in use by all included departments. This Component 1 will include collecting as many existing floor plans as possible and, where needed or requested by City, sketching up approximate floor sizes and gathering rough dimensions. The parties agree that this Component 1 is not intended as a complete inventory of offices or creation of as -built drawings. Component 2: Vision/Project Scoping Session Consultant will conduct an initial meeting with approximately five (5) key decision - makers from City, will review City's list of proposed participants in this study, will review City - provided population and staff projections, and will gather a variety of qualitative goals for the project. Component 3: Programming Based upon the result of the Vision document generated from Component 2, Consultant will prepare brief summary questionnaires for completion by up to twelve (12) selected directors representing all of the office spaces included in this study. Consultant will then conduct a series of up to twelve (12) back-to-back programming interviews to review existing spaces, personnel projections, special spatial needs, and the degree of adjacency needed with other groups. Consultant will then summarize all of the gathered information and prepare same for executive review. Component 4: Documentation Consultant will document all information and results in an Executive Summary Program Document formatted so that it may be used as one chapter in a Comprehensive Facility Plan for all City facilities. The parties note that additional chapters have not been included in this study at this time. Deliverables in Addition to Components 1-4: Deliverables include, by way of illustration and not limitation, the following: (a) Executive Summary Program Document; (b) Project Goals; (c) Pertinent Facts - to include City's population and personnel projections, current space by department, and other existing conditions; 3 (d) Concepts and Qualitative Suggestions/Strategies - designed to achieve the Project Goals, including desired adjacencies, potential changes in flows of people or materials, potential future changes, and the like; and (e) Area Projections - over time, by department (space list). Requirements for Delivery of Executive Summary Program Document: Consultant shall deliver a total of thirteen (13) copies of the Executive Summary Program Document to City within the term of this Agreement, with twelve (12) of those copies being bound and with the remaining one (1) copy being unbound and suitable for City to make additional copies in its sole discretion. The parties anticipate that the printed document will be on 8-1/2" x 11" paper, will be primarily black and white, will be spiral bound, and will contain select color pages and select 11" x 17" pages. Consultant shall also deliver one (1) CD with copies of other final components created digitally, i.e. PowerPoint, Word, Excel, and graphic image files. The parties agree that there is no requirement that the CD include every sketch and diagram created during this study. Additional Services: In the event that City increases the scope of work, or City extends the duration of the project with additional requests not delineated in this Agreement, or City requests additional follow-up meetings or presentations not delineated in this Agreement, then Consultant may bill such additional time on an hourly basis using its standard hourly rates in effect when the charges are incurred. The parties agree that Consultant's fees stated in this Agreement do not include any costs associated with the time or expenses of meeting participants or other consultants not specifically noted. The following additional services are also available from Consultant, but will be provided only upon specific written request from City and at an additional fee: (1) Coordination with demographers or other consultants; (2) Development of a computer-aided facilities management system for tracking space utilization; Stack and block planning; Comprehensive multi -campus facility planning; Landscape design; and In-house full service architecture and engineering. 1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES Payment for Services: In consideration for the consulting services to be performed by Consultant, City agrees to pay Consultant the following "Payment for Services:" 4 Fees for the listed professional services and deliverables in the total amount of Thirty- three Thousand Six Hundred and No/100 Dollars ($33,600.00) shall be paid by City in the following manner: Upon delivery of the Executive Summary Program Document and its acceptance by City, City shall be invoiced by Consultant and City shall thereupon make its payment of $33,600.00. Payment for Reimbursable Expenses: Payment for customary reimbursable expenses, including administrative charges and out-of-pocket expenses, shall not exceed the maximum sum of Five Thousand and No/100 Dollars ($5,000.00). City shall pay Consultant for reimbursable expenses, as appropriately invoiced and documented, at actual cost. Reimbursable expenses shall include but shall not be limited to such items as the following: (1) Transportation charges for local and out-of-town travel; (2) Hotel charges; (3) Subsistence charges; and (4) Routine administrative expenses including such items as long distance telephone calls, facsimiles, courier services, postage, photocopy charges, supplies, reproduction charges, and shipping. Not -to -Exceed Total Payment for Professional Services: Unless subsequently changed by Supplemental Agreement to this Agreement, Consultant's total compensation for consulting services hereunder shall not exceed Thirty-three Thousand Six Hundred and No/100 Dollars ($33,600.00), and Consultant's total reimbursement for allowable reimbursable expenses shall not exceed Five Thousand and No/100 Dollars ($5,000.00). These amounts represent the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to - exceed sums recited herein, Consultant's professional fees and reimbursable expenses for work done on behalf of City. Deductions: No deductions shall be made for Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions: No additions shall be made to Consultant's compensation based upon project claims, whether paid by City or denied. 1.05 SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by the City Council or 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 5 shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. 1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment following delivery of all deliverables, Consultant shall prepare and submit a detailed invoice to City, in accordance with the delineation contained herein in Section 1.04, for services rendered. Such invoice for professional services shall track the referenced Scope of Work, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the invoice submitted by Consultant and approved by City. Such invoice shall conform to the schedule of services and costs in connection therewith. Should additional backup material be requested by City relative to service deliverables, Consultant shall comply promptly. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. Payment of Invoices: City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of an invoice, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.10 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which are late because of a good faith dispute between Consultant and City or because of amounts which City has a right to withhold under this Agreement or state law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. 1.07 REQUIRED REPORTS Consultant agrees to provide City with all required draft reports, progress reports, and a detailed final written report, together with all information gathered and materials developed during the course of the project. Additionally, Consultant agrees to provide City with up to two (2) oral presentations of such written reports, at City's designation and at no additional cost to City, provided such presentations are scheduled within the term of this Agreement. Consultant agrees to provide City with copies of the reports as delineated herein, and a version of the final report in digital format. 1.08 LIMITATION TO SCOPE OF WORK Consultant and City agree that the scope of services to be performed is enumerated in Section 1.03 herein, and may not be changed without the express written agreement of the 6 parties. Notwithstanding anything herein to the contrary, the parties agree that City retains absolute discretion and authority for all funding decisions, such to be based solely on criteria accepted by City which may be influenced by but not be dependent on Consultant's work. 1.09 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by 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. 1.10 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: (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) 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. 1.11 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, 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 7 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. 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 is unsatisfactory as determined by City or which is not submitted in compliance with the terms of this Agreement. Default: City may terminate this Agreement, in whole or in part, for default if City provides Consultant with written notice of such default and Consultant fails to cure such default to the satisfaction of City within ten (10) business days of receipt of such notice (or a greater time if permitted by City). If Consultant defaults in performance of this Agreement and if City terminates this Agreement for such default, then City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to City, the cost to City of employing another firm to complete the useable work, and other relevant factors will affect the value to City of the work performed at the time of default. Consultant shall not be entitled to any lost or anticipated profits for work terminated for default hereunder. The termination of this Agreement for default shall extinguish all rights, duties, and obligations of City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require City to pay for any work with is unsatisfactory as determined by City, or which is not submitted in compliance with the terms of this Agreement. 1.12 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not City's employee. Consultant's employees or subcontractors are not City's employees. This Agreement does not create a partnership, employer-employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and City agree to the following rights consistent with an independent contractor relationship: 8 (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. 1.13 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither City nor Consultant shall offer employment to or shall employ any person employed then or within the preceding twelve (12) months by the other or any affiliate of the other if such person was involved, directly or indirectly, in the performance of this Agreement. 1.14 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 cause its employees and any third parties who are otherwise assisting, advising or representing City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by City or its designated representative concerning provision of services. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. City shall fumish information which includes but is not limited to access to City property, preliminary information and/or data regarding City, pertinent correspondence with other local municipal and planning officials, previous analyses or studies, and other pertinent information. Consultant agrees, within ten (10) 9 days of the effective date of this Agreement, to provide City with a comprehensive and detailed information request list. 1.15 CONFIDENTIALITY; AND MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that City is subject to the Texas Public Information Act and its duties run in accordance therewith. All data relating specifically to City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential information of Consultant. The City's confidential information and Consultant's confidential information is collectively referred to as "Confidential Information." Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party's prior written consent, which consent shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the confidentiality of the other party's Confidential Information and to advise their employees 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. 10 Neither City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for City and delivered to City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than the Deliverables). Consultant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to Consultant. City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for the City's own use including for the purposes for which they were delivered. 1.16 WARRANTIES Consultant warrants that all services performed hereunder shall be performed with the reasonable care and competence which is ordinarily applied by reasonably prudent design professionals practicing under similar circumstances and conditions. Consultant shall re -perform any work not in compliance with this warranty. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 1.17 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event City shall give written notification to Consultant; thereafter, (a) Consultant 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 in Section 1.11, then this Agreement may be terminated for default. In no event will Consultant be liable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by City, its directors, employees or agents. In no event shall Consultant be liable to City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 11 1.18 INDEMNIFICATION Consultant and City each agree to indemnify and hold harmless the other from and against any and all amounts payable under any judgment, verdict, court order or settlement for death or bodily injury or the damage to or loss or destruction of any real or tangible personal property to the extent arising out of the indemnitor's negligence in the performance of this Agreement. Consultant agrees to indemnify and hold harmless City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to City in connection with the performance of this Agreement. Should City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non -infringing while yielding substantially equivalent results. If neither of the above options is or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, City shall return such deliverables provided, and Consultant will refund to City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based upon (1) designs provided by or at the direction of City or (2) specifications or other information provided by or at the direction of City; or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. 1.19 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party may assign any rights or delegate any duties under this Agreement without the other party's prior written approval, which approval shall not be unreasonably withheld. 1.20 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. City will not do the following: 12 (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 any state or federal income tax from any payments which are made to Consultant. 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. 1.21 INSURANCE Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non -renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 13 Consultant shall also notify City, within twenty-four (24) hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and agents in their official capacities, or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Consultant and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with City. 1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Consultant, its consultants, agents, employees and subcontractors shall use professional efforts to comply with 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 licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to City at the expiration of the term of this Agreement. 1.23 FINANCIAL INTEREST PROHIBITED Consultant covenants and represents that Consultant, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required under this Agreement. 1.24 DESIGNATION OF REPRESENTATIVES City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: 14 Joseph L. Vining, AICP Executive Director of Community Development 116 East Main Street Round Rock, Texas 78664-5299 Telephone: 512-218-5420 Facsimile: 512-341-3153 Email: j1v22@round-rock.tx.us Consultant hereby designates the following representatives authorized to act in its behalf with regard to this Agreement: Michael Mace, AIA Senior Vice President Page Southerland Page, LLP 400 West Cesar Chavez, Suite 500 Austin, Texas 78701-3883 Telephone: 512-472-6721 Facsimile: 512-477-3211 Email: mmace@PSP.com Matthew F. Kreisle III, AIA Principal Page Southerland Page, LLP 400 West Cesar Chavez, Suite 500 Austin, Texas 78701-3883 Telephone: 512-472-6721 Facsimile: 512-477-3211 Email: mkreisle@PSP.com 1.25 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: (1) When delivered personally to recipient's address as stated herein; or (2) Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Consultant: Page Southerland Page, LLP 400 West Cesar Chavez, Suite 500 Austin, Texas 78701-3883 15 Notice to City: City Manager City of Round Rock 221 East Main Street Round Rock, TX 78664-5299 AND TO Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664-5246 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.26 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to enforcement of any 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 the State of Texas. 1.27 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties understand and expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 1.28 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall select one mediator and Consultant shall select one mediator and those two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. City and Consultant hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 16 1.29 FORCE MAJEURE Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or a breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to City if its failure to perform or its substantial delay in performance is due to City's failure to timely provide requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 1.30 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.31 STANDARD OF CARE Consultant represents that it is qualified by education and/or experience in the specific technical areas involved 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, with the reasonable care and competence which is ordinarily applied by reasonably prudent design professionals practicing under similar circumstances and conditions. 1.32 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any 17 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of 'o .d 'i T= By: /.�4_— / ed lame: N Lt. fl'i 1,066, itle: 1))0y01/2_,Date Signed: 3 -iii -r!7 OWNER: Approved as to Form: Stephan L. Sheets, City Attorney ARCHITECT: Page Southerland Page, LLP By: PS Architect -Engineers, Inc. P.rt er Attest: J t y Christine R. Martinez, City Secretary Date Signed: 3.it)-O5 Matthew F. Kreisle III, Principal as officer of PSP A-E, Inc. 18