R-06-06-08-10D1 - 6/8/2006RESOLUTION NO. R -06-06-08-10D1
WHEREAS, the City of Round Rock desires to retain professional
consulting services for a Community Needs Assessment for Indoor
Recreational Facility, and
WHEREAS, Jacobs Facilities, Inc. has submitted an Agreement for
Professional Consulting Services and a Work Made for Hire Agreement to
provide said services, and
WHEREAS, the City Council desires to enter into said agreements
with Jacobs Facilities, 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 an Agreement for Professional Consulting Services
and a Work Made for Hire Agreement with Jacobs Facilities, 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 Code, as amended
RESOLVED this 8th day of June, 2006.
ATTEST
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Cit
CHRISTINE R. MARTINEZ, City Secretar
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ound Rock, Texas
CITY OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES FOR COMMUNITY
NEEDS ASSESSMENT FOR INDOOR RECREATIONAL FACILITY
WITH JACOBS FACILITIES, INC.
THIS AGREEMENT for professional consulting services relating to the City of Round
Rock's potential construction and operation of indoor recreational facilities (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, (the "City") and Jacobs
Facilities, Inc. (the "Consultant"), with offices located at 6688 North Central Expressway, Suite
400, MB 13, Dallas, Texas 75206-3914.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term- of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than six (6) months from the effective date of
this Agreement.
City reserves the right to review the Agreement at any time, including at the end of any
deliverable or phase or task, and may elect to terminate the Agreement with or without cause or
may elect to continue.
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 Fifty Thousand Eight Hundred and
No/100 Dollars ($50,800.00), in payment for services and the Scope of Services deliverables as
00100049/jkg
EXHIBIT
delineated in Exhibit "A" attached hereto and incorporated herein for all purposes. This amount
does not include expenses which otherwise are reimbursable under this Agreement as delineated
in Section 1.04.
1.03 SCOPE OF SERVICES
For purposes of this Agreement, Consultant has issued its Scope of Services for the
assignments delineated herein, and such Scope of Services is delineated in Exhibit "A" attached
hereto and incorporated herein for all purposes.
This Agreement shall evidence the entire understanding and agreement between the
parties and shall supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services and deliverables described under the
referenced Scope of Services within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for the City and/or advising the City
concerning those matters on which Consultant has been specifically engaged. Consultant shall
perform its services in accordance with this Agreement and with the referenced Scope of
Services. Consultant shall perform its services in a professional and workmanlike manner.
Consultant shall not undertake work that is beyond the Scope of Services set forth in
Exhibit "A." However, either party may make written requests for changes to the Scope of
Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in
all relevant details, and must be embodied in a valid Supplemental Agreement as described in
Section 1.05 hereof.
1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, the City agrees to pay Consultant as follows:
Fees for the listed deliverables in the total amount of Fifty Thousand Eight Hundred and
No/100 Dollars ($50,800.00) shall be paid by the City in the following manner:
To receive payment, Consultant shall prepare and submit detailed monthly invoices to the
City for services rendered in correlation with Exhibit "A." If the City has any dispute with
services performed, then the City shall notify Consultant within thirty (30) days after receipt of
invoice. In the event of any dispute regarding the services performed, then and in that event
Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide the City
with an appropriate credit.
Payment for Reimbursable Expenses: Reimbursable expenses authorized by the City
shall be paid to Consultant at actual cost, upon Consultant properly invoicing for same and
providing documentation for same. Such reimbursable expenses shall not exceed the total
amount of Eight Thousand and No/100 Dollars ($8,000.00).
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Not -to -Exceed Total Payment for Services: Unless subsequently changed by
Supplemental Agreement to this Agreement, Consultant's total compensation for consulting
services hereunder shall not exceed Fifty Thousand Eight Hundred and No/100 Dollars
($50,800.00). This amount represents the absolute limit of the City's liability to Consultant
hereunder unless same shall be changed by additional Supplemental Agreement, and the 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 the 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 the City or denied.
1.05 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if the City determines that there
has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
the 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 detailed monthly progress invoices to the City, in accordance with the
delineation contained herein, for services rendered. Such invoices for professional services shall
track the referenced Scope of Services, and shall detail the services performed, along with
documentation for each service performed. Payment to Consultant shall be made on the basis of
the invoices submitted by Consultant and approved by the City. Such invoices shall conform to
the schedule of services and costs in connection therewith.
Should additional backup material be requested by the City relative to service
deliverables, Consultant shall comply promptly. In this regard, should the City determine it
necessary, Consultant shall make all records and books relating to this Agreement available to
the City for inspection and auditing purposes.
Payment of Invoices: The 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, the City shall endeavor to pay
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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 the City or because of amounts which the City has a right to withhold under this Agreement
or state law. The 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 DRAFT REPORT AND FINAL REPORT
Consultant agrees to provide the City with a draft report 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 the City any necessary oral presentations of
such written reports, at the City's designation and at no additional cost to the City.
Consultant agrees to provide the City with ten (10) additional bound copies of the final
written report, with one (1) unbound copy being delivered which is suitable for the City to make
additional copies at the sole election of the City. All copies of the written final report will be on
8-1/2" x 11" or 8-1/2" x 17" paper, will be primarily in black and white, will be spiral bound,
and will contain color pages, images, photos, and diagrams as necessary. Consultant shall also
deliver two (2) reproducible CDs to the City, all at no additional cost to the City.
1.08 LIMITATION TO SCOPE OF WORK
Consultant and the City agree that the Scope of Services to be performed is enumerated
in Exhibit "A" herein, and may not be changed without the express written agreement of the
parties. Notwithstanding anything herein to the contrary, the parties agree that the City retains
absolute discretion and authority for all funding decisions, such to be based solely on criteria
accepted by the 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 the City's current revenues only. It is understood and
agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal
year if the governing body of the City does not appropriate funds sufficient to purchase the
services as determined by its budget for the fiscal year in question. The City may effect such
termination by giving Consultant 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 the 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 the City receives a correct invoice for the performance and/or deliverables or services,
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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 the City in the event:
(1)
There is a bona fide dispute between the 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 the 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 the 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 the City may terminate this
Agreement for the convenience of the City, upon fifteen 05) 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 the City for work satisfactorily
completed and shall be compensated in accordance with the terms hereof for work accomplished
prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related to this project shall become the
property of the City upon termination of this Agreement, and shall be promptly delivered to the
City in a reasonably organized form without restriction on future use. Should the 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 the
parties 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 the City to pay for any work which is
unsatisfactory as determined by the City or which is not submitted in compliance with the terms
of this Agreement.
Default: The City may terminate this Agreement, in whole or in part, for default if the
City provides Consultant with written notice of such default and Consultant fails to cure such
default to the satisfaction of the City within ten (10) business days of receipt of such notice (or a
greater time if permitted by the City).
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If Consultant defaults in performance of this Agreement and if the City terminates this
Agreement for such default, then the 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
the City, the cost to the City of employing another firm to complete the useable work, and other
factors will affect the value to the 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 the 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 herein shall require the City to pay for any work deemed
unsatisfactory by the City, or which is not submitted in compliance with the terms hereof.
1.12 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the 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 the 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.
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 the City shall not hire, supervise, or pay assistants to help
Consultant.
(3)
(5)
Neither Consultant nor its employees or subcontractors shall receive training from
the 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 the City.
(7)
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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 the City nor Consultant shall offer employment to or shall
employ any person employed then or within the preceding twelve (12) months by the other or
any affiliate of the other if such person was involved, directly or indirectly, in the performance of
this Agreement. This provision shall not prohibit the hiring of any person who was solicited
solely through a newspaper advertisement or other general solicitation.
1.14 CITY'S RESPONSIBILITIES
Full information: The City shall provide full information regarding project
requirements. The 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. The City shall cause its employees and any third parties who are otherwise
assisting, advising or representing the City to cooperate on a timely basis with Consultant in the
provision of its services. Consultant may rely upon written information provided by the City and
its employees and agents as accurate and complete. Consultant may rely upon any written
directives provided by the 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. The City shall furnish information
which includes but is not limited to access to the property, preliminary information and/or data
regarding the site and surrounding property (if applicable), pertinent correspondence with other
local municipal and planning officials, previous market analyses or feasibility studies, and other
pertinent information. Consultant agrees, within ten (10) days of the effective date of this
Agreement, to provide the 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 the 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 the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
All data relating specifically to the City's business and any other information which
reasonably should be understood to be confidential to City is confidential information of City.
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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.
Neither the City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered to the 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. The City shall have a non-exclusive, non -transferable license to use Consultant's
Confidential Information for the City's own internal use and only for the purposes for which they
are delivered to the extent that they form part of the Deliverables.
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1.16 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. 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 the City shall give written notification to Consultant; thereafter, (a)
Consultant shall either promptly re -perform such services to the 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 the City, its directors, employees or
agents.
In no event shall Consultant be liable to the 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 the 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.
1.18 INDEMNIFICATION
Consultant and the City each agree to indemnify, defend 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, defend and hold harmless the 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 the City in connection
with the performance of this Agreement. Should the City's use of such deliverables be
determined to have infringed, Consultant may, at its option: (i) procure for the City the right to
continue using such deliverables provided or (ii) replace or modify them to make their use non -
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infringing while yielding substantially equivalent results. If neither of the above options are or
would be available on a basis that is commercially reasonable, then Consultant may terminate
this Agreement, the City shall return such deliverables provided, and Consultant will refund to
the 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 (I) designs provided by or at the direction of the City
or (2) specifications or other information provided by or at the direction of the City; or use of
systems, materials or work performed in a manner not permitted hereunder or by another
obligation of the 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. The indemnified party shall have the right, at its option and expense, to participate in
the defense of any suit or proceeding through counsel of its own choosing.
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. The 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, the City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
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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 the 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. ConsuItant'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. The 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
the City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify the 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 the 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 the City and individual members,
employees and agents in their official capacities, or while acting on behalf of the
City of Round Rock.
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(4) The policy clause "Other Insurance" shall not apply to any insurance coverage
currently held by the City, to any future coverage, or to the City's Self -Insured
Retentions of whatever nature.
(5) Consultant and the 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 the City.
1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state Iaws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and same shall belong solely to the 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
The City hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Rick Atkins
Director, Parks and Recreation Department
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
(512) 218-5540
Email: ricka around-rock.tx.us
Consultant hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
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Michael Pratl, AIA
Director, Sports and Recreation
Jacobs Facilities, Inc.
6688 North Central Expressway, Suite 400, MB 13
Dallas, TX 75206-3914
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:
Jacobs Facilities, Inc.
6688 North Central Expressway, Suite 400, MB 13
Dallas, TX 75206-3914
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of the 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 the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
13
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,
the 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.
The 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.
1.29 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 the City if its failure
to perform or its substantial delay in performance is due to the 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
14
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 specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted business attraction practices.
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
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. The 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 Round Rock, Texas
By:
Title:
Date Signed:
Jacobs Facilities, Inc.
By: i ' I �►�(le
Title: �.V...161--.
Date Signed: �_t 20
15
Attest:
Christine R. Martinez, City Secretary
For City, Approved as to Form:
Stephan L. Sheets, City Attorney
EXHIBIT "A"
City of Round Rock
Community Needs Assessment for Indoor Recreational Facility
Scope of Services, Schedule and Compensation
Project Planning
During the Project Planning Phase, JFI will gather existing information and studies and
begin to build on this information by developing a strategy for developing the study. This
phase identifies key team members of both our team and the City's Committee, clarifies
goals and objectives, and develops a work plan to accomplish those goals and
objectives.
• Review of Existing Documentation — JFI will review and validate all relevant
documentation to familiarize us with relevant work previously completed by the City,
potential development sites, and program goals. JFI will also identify critical issues
we feel need to be addressed before proceeding with the design effort.
■ Prepare for Project Kick -Off Meeting — JFI will develop the kick-off meeting
agenda, a list of key questions for the City's Committee and an outline of critical
issues for discussion.
• Conduct Project Kick -Off Meeting— JFI will conduct a one -day project kick-off
meeting with the Committee to discuss the appropriate strategy for beginning the
Feasibility Study. The issues and activities to be addressed include:
• introduce the project participants
• Identify project goals, objectives and priorities
• Discuss key project issues
General
Design
Construction
Operational
Financial
• Review data gathering technique(s)
• Review work plan and tasks
• Review project schedule/milestones
• Develop review and approval process
Market Analysis
Includes an analysis of the economic conditions in the area that may influence the
success of the facility. Based on this information, each of the major recreational activities
16
will be analyzed for its potential in participation/visitation, participation correlation and
projected levels by age group.
• Service Area — Determination of market area for the proposed facility within Round
Rock, Texas and any additional areas who could potentially benefit from access to
the facility.
• Potential Partnerships — JFI will assist the staff to determine the overall goals of what
is to be achieved in the partnering process. As the goals and objectives are decided,
each will be given a priority in order to establish the implementation phase of this
process.
Deliverables:
■ Report of Service Area Determination
Program Competition Analysis
Inventory of providers considered competitors to your programs and/or facility. The list
will include programs provided, fees, facilities and benchmarks of market rates for all
programs in the Austin area. This information will assist JFI in determining supply of
similar facilities in the service area (for each program component proposed), determining
alternative programs not being provided, and competitor pricing comparisons.
• Alternative Recreation/Aquatic Service Providers
• Facilities and Services Offered
• Admission Rates/Attendance Numbers
Deliverables:
• Report of assembled information
• Competition analysis report
Needs Assessment
JFI will conduct focus group workshops with a cross section of the community followed
up with a validation process at a Town Hall Meeting. This work would be conducted after
a review of the market and competition analyses.
■ Determination of key stakeholder groups
■ Focus Group Interviews
• Evening Public Presentation of Findings
• 2 -day exercise
Deliverables:
• Report of desired programs, facilities, willingness to pay, and proposed partnerships
from each focus group.
17
• Public Presentation Slide Show
Citizen Survey
JP will conduct a random statistically valid survey of potential users (300 responses)
based on initial input gathered from Needs Assessment.
■ Determine desired data needs
■ Identify sample parameters and audience
• Develop phone/mail survey instrument and questions
• Evaluate and interpret survey results
■ Benchmarking with results from similar communities
Model Facility Program
Based upon interviews with City representatives and our database of relevant program
parameters, a model facility program can be developed and tested against current
recreation trends. The program model is revalidated against market drivers and provides
a framework for further development
■ Development of a facility program matrix including proposed space requirements
with spaces adjusted to market requirements. A program narrative of uses for each
space will accompany the matrix.
Deliverables:
• Written report of existing and proposed facility programs including a matrix of
proposed spaces/sizes and narrative of uses for each major program component.
Project Cost Model
Based upon the above information, a comprehensive cost model is developed including
costs for construction, A/E fees, FF&E, agency fees, administrative costs, and all other
related project expenses. These model(s) are in concert with data provided via the
operations plan.
Deliverables:
• Summary estimate of proposed construction budget, site, utilities, FF&E,
fees, contingencies and cost escalation to construction schedule.
Site Analysis
Site assessment will include studying and analyzing the following areas that affect the
use and capacity of existing and potential facility development. This assessment will
study and analyze existing and potential capacities, existing and potential uses, types of
components, condition of utilities and structures, parking, site layout, access, safety and
security, lighting. Each component value will be weighted with input from the Owner.
18
Deliverables:
• Each site will be studied and documented on an analysis matrix and narrative.
Operations Plan and Funding Options
JFI will prepare operating and staffing cost projections, revenue forecasts, and funding
source analysis. This step assembles and prepares financial model(s) to support the
capital and operating investment.
• Attendance Estimates - Daily, Annually, by Component
• Fee Structure - Drop-in, Multiple Admissions/Annual Passes, Family, Corporate,
Group Rentals
■ Sources of Income - Identification and Verification of Revenue Sources
• Operating Cost Projections — Line Item Budget Development, Staff/Positions,
Contractual Services, Commodities, Capital Replacement
• Revenue Generation Projections — Line Item Accounting Development, Admissions,
Annual/multiple Admissions, Programs and Services, Rentals, Other Revenue
Sources
• Revenue/Expenditure Comparisons — Cost Recovery Level
• Construction/Operations Funding Options
Deliverables:
• Written report of staffing requirements, operating costs, and projected revenues.
• Written report of potential funding sources for construction and/or operational
expenses.
Final Document Deliverables
The study will include the following components:
• Executive Summary
• Market Analysis
■ Program Competition Analysis
• Needs Assessment Report
• Citizen Survey
• Model Facility Program
• Project Cost Model
• Site Analysis Matrix/Report
• Operations Plan/Funding Options
19
Schedule
• Project Planning/Kick-off Meeting
■ Market/Competition Analysis
■ Needs Assessment
• Citizen Survey (draft results)
Model Facility Program
Project Cost Model
• Site Analysis Matrix/Report
■ Operations Plan
■ Funding Options
• Final Study Submittal
• City Council Retreat
• City Council Presentation
Compensation
■ Project Planning
■ Market/Competition Analysis
■ Needs Assessment
• Citizen Survey
■ Model Facility Program
■ Project Cost Model
• Site Analysis Matrix/Report
• Operations Plan
■ Funding Options
TOTAL Proposed Lump Sum
Estimated Reimbursables (Travel, Repro, Postage, etc.)
Effective date - June 14, 2006
May 30 — June 12, 2006
June 14 —June 16, 2006
June 26 —July 21, 2006
July 24 — July 28, 2006
July 24 — July 28, 2006
July 24 — July 28, 2006
July 24 — August 4, 2006
July 24 — August 4, 2006
August 11, 2006
August 15 —16, 2006
August 24, 2006
20
$ 3,500
$ 4,500
$ 8,000
$ 9,800
$ 4,500
$ 3,500
$ 6,000
$ 8,000
$ 3,000
$50,800
$ 8,000
WORK MADE FOR HIRE AGREEMENT WITH JACOBS FACILI'11ES, INC.
This Agreement is made on the day of the month of
2006, by and between JACOBS FACILITIES, INC., and any of its authors and/or
artists (hereinafter referred to as "Author/Artist," and if there is more than one
author/artist affiliated with the entity, then the entity and all of them collectively) and the
CITY OF ROUND ROCK, TEXAS (hereinafter referred to as the "City").
This Agreement is made simultaneous to an agreement entitled "City of Round
Rock Agreement for Professional Consulting Services for Community Needs Assessment
for Indoor Recreational Facility with Jacobs Facilities, Inc.," and encompasses the subject
matter contracted for thereunder.
AUTHOR/ARTIST AND CITY HEREBY AGREE THAT:
L Title and Copyright Assignment
(a) Author/Artist and City intend this to be a contract for services and each considers
the products and results of the services to be rendered by Author/Artist hereunder (the
"Work") to be a work made for hire. Author/Artist acknowledges and agrees that the
Work (and all rights therein, including, without Iimitation, copyright) belongs to and shall
be the sole and exclusive property of City.
(b) If for any reason the Work would not be considered a work made for hire under
applicable law, Author/Artist does hereby sell, assign, and transfer to City, its successors
and assigns, the entire right, title and interest in and to the copyright in the Work and any
registrations and copyright applications relating thereto and any renewals and extensions
thereof, and in and to all works based upon, derived from, or incorporating the Work, and
in and to all income, royalties, damages, claims and payments now or hereafter due or
payable with respect thereto, and in and to all causes of action, either in law or in equity
for past, present, or future infringement based on the copyrights, and in and to all rights
corresponding to the foregoing throughout the world.
(c) If the Work is one to which the provisions of 17 U.S.C.106A apply, Author/Artist
hereby waives and appoinis 1 co -assert on Author/Artist's behalf the Author/Artist's
moral rights or any equivalent rights regarding the form or extent of any alteration to the
Work (including, without limitation, removal or destruction) or the making of any
derivative works based on the Work, including, without limitation, drawings or other
visual reproductions or the Work, in any medium, excepting photographs, for City's
purposes.
(d) Author/Artist agrees to execute all papers and to perform such other proper acts as
City may deem necessary to secure for City or its designee the rights herein assigned.
00100085/jkg
2. Delivery of the Work
(a) Author/Artist will deliver to City on or before any contractually -obligated date the
completed Work (with all illustrations, charts, graphs, graphics, and other material,
including supplements, handouts, reference lists, indexes, etc., in the medium mutually
agreed upon for the Work) in form and content satisfactory to City.
(b) If Author/Artist fails to deliver the Work on time, City will have the right to
terminate this agreement and the referenced simultaneous agreement and to recover from
Author/Artist any sums advanced in connection with the Work. Upon such termination,
Author/Artist may not have the Work published or used in any form elsewhere until such
advances have been repaid.
3. Quoted Material
With the exception of short excerpts from others' works, which constitute fair use,
the Work will contain no material from other copyrighted works without a written
consent of the copyright holder. Author/Artist will obtain such consents at his/her/its own
expense after consultation with City and will file them with City at the time the Work is
delivered. Any obligations associated with permissions will be the responsibility of
Author/Artist.
4. Author/Artist's Warranty
Author/Artist warrants that he/she/it is the sole owner of the Work and has full
power and authority to make this agreement; that the Work does not infringe any
copyright, violate any property rights, or contain any scandalous, libelous, or unlawful
matter. Author/Artist will defend, indemnify, and hold harmless City and/or its licensees
against all claims, suits, costs, damages, and expenses that City and/or its licensees may
sustain by reason of any scandalous, libelous, or unlawful matter contained or alleged to
be contained in the Work or any infringement or violation by the Work of any copyright
or property right; and until such claim or suit has been settled or withdrawn, City may
withhold any sums due Author/Artist under the referenced simultaneous agreement.
5. Consideration
In consideration for delivery of the Work in accordance with the provisions of the
referenced simultaneous agreement, City shall pay Author/Artist as indicated therein.
6. Revisions
Author/Artist shall, at the request of City, revise the Work at one year intervals
during the term of the referenced simultaneous agreement.
7. Term and Termination
(a) This agreement shall remain in effect for the same length of time as the referenced
simultaneous agreement unless terminated earlier in accordance with this Section 7.
(b) In the event that either party shall be in default of its material obligations under
this agreement or the referenced simultaneous agreement and shall fail to remedy such
default within thirty (30) days after receipt of written notice thereof, the agreements shall
terminate upon expiration of the thirty (30) day period.
(c) Upon the expiration of the term of this agreement and the referenced simultaneous
agreement, the parties may agree to renew those agreements for additional terms, only as
allowed by the terms of the referenced simultaneous agreement, upon the same terms and
conditions as set forth.
8. Options/Contracts with Third Parties
Nothing contained. in Section 7 shall affect any license or other grant of rights,
options, or agreements made with third parties prior to the termination date or the rights
of City in the income resulting from such agreements.
9. Amendments
The written provisions contained in this agreement, taken together inextricably
with the referenced simultaneous agreement, constitute the sole and entire agreement
made between Author/Artist and City concerning this Work, and any amendments to
same shall not be valid unless made in writing and signed by both parties.
10. Construction, Binding Effect, Venue, and Assignment
This agreement shall be construed and interpreted according to the laws of the
State of Texas and shall be binding upon the parties hereto, their heirs, successors,
assigns, and personal representatives; and venue shall lie exclusively in Williamson
County, Texas; and references to Author/Artist and to City shall include their heirs,
successors, assigns, and personal representatives.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date indicated below.
CITY OF ROUND ROCK, TEXAS ATTEST:
By:
Printed Name:
Title:
Christine R. Martinez, City Secretary
FOR CITY, APPROVED AS TO FORM:
Stephan L. Sheets, City Attorney
JACOBS FACILITIES, INC.
By:
Printed Name: k 1(l. , pigATL
Title: "bit w2._.
Date: 59 kArkei 2,,
DATE: June 1, 2006
SUBJECT: City Council Meeting - June 8, 2006
ITEM: 10.D.1. Consider a resolution authorizing the Mayor to execute a contract with
Jacobs Facilities, Inc. for a Community Needs Assessment for Indoor
Recreational Facility for the Westside Recreation Center Project.
Department: Parks and Recreation
Staff Person: Rick Atkins, Director
Justification:
The City wishes to hire this consultant to guide decisions related to determining and providing
for the City's indoor recreational facility needs. This assessment is necessary to determine the
appropriate amenities and location. In addition, this assessment will help in the City's efforts to
determine the best approach to provide the City's Indoor recreation facilities.
Funding: $7,000,000.00 (Earmarked for Center)
Cost: $58,800.00 (Contract)
Source of funds: G.O. Bond Project
Outside Resources: Jacobs Facilities, Inc.
Background Information:
On November 6, 2001, the Round Rock voters approved a $17.3 million proposition for parks
and recreation projects. Of that $17.3 million, the City earmarked $7.075 million to build a
recreation center on the west side of town. The Recreation Center Project was included in the
Bond Election package by the Council at the recommendation of a Citizen Bond Task Force,
that met for several months prior to the election, to review projects for possible inclusion on
the ballot. Staff concurred with the recommendation of the Bond Task Force due to the high
use at the Clay Madsen Recreation Center, which opened in July 2000.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
CITY OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES FOR COMMUNITY
NEEDS ASSESSMENT FOR INDOOR RECREATIONAL FACILITY
WITH JACOBS FACILITIES, INC.
THIS AGREEMENT for professional consulting services relating to the City of Round
Rock's potential construction and operation of indoor recreational facilities (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, (the "City") and Jacobs
Facilities, Inc. (the "Consultant"), with offices located at 6688 North Central Expressway, Suite
400, MB 13, Dallas, Texas 75206-3914.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than six (6) months from the effective date of
this Agreement.
City reserves the right to review the Agreement at any time, including at the end of any
deliverable or phase or task, and may elect to terminate the Agreement with or without cause or
may elect to continue.
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 Fifty Thousand Eight Hundred and
No/100 Dollars ($50,800.00), in payment for services and the Scope of Services deliverables as
00100049/jkg
R-0(-oc,-o8- JODI
delineated in Exhibit "A" attached hereto and incorporated herein for all purposes. This amount
does not include expenses which otherwise are reimbursable under this Agreement as delineated
in Section 1.04.
1.03 SCOPE OF SERVICES
For purposes of this Agreement, Consultant has issued its Scope of Services for the
assignments delineated herein, and such Scope of Services is delineated in Exhibit "A" attached
hereto and incorporated herein for all purposes.
This Agreement shall evidence the entire understanding and agreement between the
parties and shall supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services and deliverables described under the
referenced Scope of Services within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for the City and/or advising the City
concerning those matters on which Consultant has been specifically engaged. Consultant shall
perform its services in accordance with this Agreement and with the referenced Scope of
Services. Consultant shall perform its services in a professional and workmanlike manner.
Consultant shall not undertake work that is beyond the Scope of Services set forth in
Exhibit "A." However, either party may make written requests for changes to the Scope of
Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in
all relevant details, and must be embodied in a valid Supplemental Agreement as described in
Section 1.05 hereof.
1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, the City agrees to pay Consultant as follows:
Fees for the listed deliverables in the total amount of Fifty Thousand Eight Hundred and
No/100 Dollars ($50,800.00) shall be paid by the City in the following manner:
To receive payment, Consultant shall prepare and submit detailed monthly invoices to the
City for services rendered in correlation with Exhibit "A." If the City has any dispute with
services performed, then the City shall notify Consultant within thirty (30) days after receipt of
invoice. In the event of any dispute regarding the services performed, then and in that event
Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide the City
with an appropriate credit.
Payment for Reimbursable Expenses: Reimbursable expenses authorized by the City
shall be paid to Consultant at actual cost, upon Consultant properly invoicing for same and
providing documentation for same. Such reimbursable expenses shall not exceed the total
amount of Eight Thousand and No/100 Dollars ($8,000.00).
2
Not -to -Exceed Total Payment for Services: Unless subsequently changed by
Supplemental Agreement to this Agreement, Consultant's total compensation for consulting
services hereunder shall not exceed Fifty Thousand Eight Hundred and No/100 Dollars
($50,800.00). This amount represents the absolute limit of the City's liability to Consultant
hereunder unless same shall be changed by additional Supplemental Agreement, and the 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 the 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 the City or denied.
1.05 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if the City determines that there
has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
the 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 detailed monthly progress invoices to the City, in accordance with the
delineation contained herein, for services rendered. Such invoices for professional services shall
track the referenced Scope of Services, and shall detail the services performed, along with
documentation for each service performed. Payment to Consultant shall be made on the basis of
the invoices submitted by Consultant and approved by the City. Such invoices shall conform to
the schedule of services and costs in connection therewith.
Should additional backup material be requested by the City relative to service
deliverables, Consultant shall comply promptly. In this regard, should the City determine it
necessary, Consultant shall make all records and books relating to this Agreement available to
the City for inspection and auditing purposes.
Payment of Invoices: The 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, the City shall endeavor to pay
3
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 the City or because of amounts which the City has a right to withhold under this Agreement
or state law. The 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 DRAFT REPORT AND FINAL REPORT
Consultant agrees to provide the City with a draft report 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 the City any necessary oral presentations of
such written reports, at the City's designation and at no additional cost to the City.
Consultant agrees to provide the City with ten (10) additional bound copies of the final
written report, with one (1) unbound copy being delivered which is suitable for the City to make
additional copies at the sole election of the City. All copies of the written final report will be on
8-1/2" x 11" or 8-1/2" x 17" paper, will be primarily in black and white, will be spiral bound,
and will contain color pages, images, photos, and diagrams as necessary. Consultant shall also
deliver two (2) reproducible CDs to the City, all at no additional cost to the City.
1.08 LIMITATION TO SCOPE OF WORK
Consultant and the City agree that the Scope of Services to be performed is enumerated
in Exhibit "A" herein, and may not be changed without the express written agreement of the
parties. Notwithstanding anything herein to the contrary, the parties agree that the City retains
absolute discretion and authority for all funding decisions, such to be based solely on criteria
accepted by the 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 the City's current revenues only. It is understood and
agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal
year if the governing body of the City does not appropriate funds sufficient to purchase the
services as determined by its budget for the fiscal year in question. The City may effect such
termination by giving Consultant 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 the 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 the City receives a correct invoice for the performance and/or deliverables or services,
4
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 the City in the event:
(1) There is a bona fide dispute between the 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 the 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 the 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 the City may terminate this
Agreement for the convenience of the City, upon fifteen (15) 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 the City for work satisfactorily
completed and shall be compensated in accordance with the terms hereof for work accomplished
prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related to this project shall become the
property of the City upon termination of this Agreement, and shall be promptly delivered to the
City in a reasonably organized form without restriction on future use. Should the 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 the
parties 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 the City to pay for any work which is
unsatisfactory as determined by the City or which is not submitted in compliance with the terms
of this Agreement.
Default: The City may terminate this Agreement, in whole or in part, for default if the
City provides Consultant with written notice of such default and Consultant fails to cure such
default to the satisfaction of the City within ten (10) business days of receipt of such notice (or a
greater time if permitted by the City).
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If Consultant defaults in performance of this Agreement and if the City terminates this
Agreement for such default, then the 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
the City, the cost to the City of employing another firm to complete the useable work, and other
factors will affect the value to the 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 the 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 herein shall require the City to pay for any work deemed
unsatisfactory by the City, or which is not submitted in compliance with the terms hereof.
1.12 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the 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 the 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 the City shall not hire, supervise, or pay assistants to help
Consultant.
(5)
Neither Consultant nor its employees or subcontractors shall receive training from
the 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 the City.
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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 the City nor Consultant shall offer employment to or shall
employ any person employed then or within the preceding twelve (12) months by the other or
any affiliate of the other if such person was involved, directly or indirectly, in the performance of
this Agreement. This provision shall not prohibit the hiring of any person who was solicited
solely through a newspaper advertisement or other general solicitation.
1.14 CITY'S RESPONSIBILITIES
Full information: The City shall provide full information regarding project
requirements. The 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. The City shall cause its employees and any third parties who are otherwise
assisting, advising or representing the City to cooperate on a timely basis with Consultant in the
provision of its services. Consultant may rely upon written information provided by the City and
its employees and agents as accurate and complete. Consultant may rely upon any written
directives provided by the 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. The City shall furnish information
which includes but is not limited to access to the property, preliminary information and/or data
regarding the site and surrounding property (if applicable), pertinent correspondence with other
local municipal and planning officials, previous market analyses or feasibility studies, and other
pertinent information. Consultant agrees, within ten (10) days of the effective date of this
Agreement, to provide the 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 the 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 the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
All data relating specifically to the City's business and any other information which
reasonably should be understood to be confidential to City is confidential information of City.
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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.
Neither the City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered to the 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. The City shall have a non-exclusive, non -transferable license to use Consultant's
Confidential Information for the City's own internal use and only for the purposes for which they
are delivered to the extent that they form part of the Deliverables.
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1.16 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. 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 the City shall give written notification to Consultant; thereafter, (a)
Consultant shall either promptly re -perform such services to the 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 the City, its directors, employees or
agents.
In no event shall Consultant be liable to the 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 the 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.
1.18 INDEMNIFICATION
Consultant and the City each agree to indemnify, defend 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, defend and hold harmless the 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 the City in connection
with the performance of this Agreement. Should the City's use of such deliverables be
determined to have infringed, Consultant may, at its option: (i) procure for the City the right to
continue using such deliverables provided or (ii) replace or modify them to make their use non -
9
infringing while yielding substantially equivalent results. If neither of the above options are or
would be available on a basis that is commercially reasonable, then Consultant may terminate
this Agreement, the City shall return such deliverables provided, and Consultant will refund to
the 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 the City
or (2) specifications or other information provided by or at the direction of the City; or use of
systems, materials or work performed in a manner not permitted hereunder or by another
obligation of the 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. The indemnified party shall have the right, at its option and expense, to participate in
the defense of any suit or proceeding through counsel of its own choosing.
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. The 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, the City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
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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 the 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. The 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
the City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify the 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 the 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 the City and individual members,
employees and agents in their official capacities, or while acting on behalf of the
City of Round Rock.
11
(4) The policy clause "Other Insurance" shall not apply to any insurance coverage
currently held by the City, to any future coverage, or to the City's Self -Insured
Retentions of whatever nature.
(5) Consultant and the 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 the City.
1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and same shall belong solely to the 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
The City hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Rick Atkins
Director, Parks and Recreation Department
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
(512) 218-5540
Email: ricka@round-rock.tx.us
Consultant hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
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Michael Pratl, AIA
Director, Sports and Recreation
Jacobs Facilities, Inc.
6688 North Central Expressway, Suite 400, MB 13
Dallas, TX 75206-3914
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:
Jacobs Facilities, Inc.
6688 North Central Expressway, Suite 400, MB 13
Dallas, TX 75206-3914
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of the 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 the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
13
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,
the 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.
The 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.
1.29 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 the City if its failure
to perform or its substantial delay in performance is due to the 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
14
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 specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted business attraction practices.
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
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. The 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
Bv:
Roc
Title: rr Ay O 2
Date Signed:
Jacobs Facilities. Inc.
By:
Title:
Date Signed: AjkApi 2. 1p
15
kPlandtv;v1
Christine R. Martinez, City Secretary
, Approved
C.!V 1..
L. Sheets, City Attorney
EXHIBIT "A"
City of Round Rock
Community Needs Assessment for Indoor Recreational Facility
Scope of Services, Schedule and Compensation
Project Planning
During the Project Planning Phase, JFI will gather existing information and studies and
begin to build on this information by developing a strategy for developing the study. This
phase identifies key team members of both our team and the City's Committee, clarifies
goals and objectives, and develops a work plan to accomplish those goals and
objectives.
• Review of Existing Documentation — JFI will review and validate all relevant
documentation to familiarize us with relevant work previously completed by the City,
potential development sites, and program goals. JFI will also identify critical issues
we feel need to be addressed before proceeding with the design effort.
• Prepare for Project Kick -Off Meeting — JFI will develop the kick-off meeting
agenda, a list of key questions for the City's Committee and an outline of critical
issues for discussion.
■ Conduct Project Kick -Off Meeting — JFI will conduct a one -day project kick-off
meeting with the Committee to discuss the appropriate strategy for beginning the
Feasibility Study. The issues and activities to be addressed include:
• Introduce the project participants
• Identify project goals, objectives and priorities
■ Discuss key project issues
- General
- Design
Construction
Operational
Financial
■ Review data gathering technique(s)
• Review work plan and tasks
• Review project schedule/milestones
• Develop review and approval process
Market Analysis
Includes an analysis of the economic conditions in the area that may influence the
success of the facility. Based on this information, each of the major recreational activities
16
will be analyzed for its potential in participation/visitation, participation correlation and
projected levels by age group.
■ Service Area — Determination of market area for the proposed facility within Round
Rock, Texas and any additional areas who could potentially benefit from access to
the facility.
• Potential Partnerships — JFI will assist the staff to determine the overall goals of what
is to be achieved in the partnering process. As the goals and objectives are decided,
each will be given a priority in order to establish the implementation phase of this
process.
Deliverables:
■ Report of Service Area Determination
Program Competition Analysis
Inventory of providers considered competitors to your programs and/or facility. The list
will include programs provided, fees, facilities and benchmarks of market rates for all
programs in the Austin area. This information will assist JFI in determining supply of
similar facilities in the service area (for each program component proposed), determining
alternative programs not being provided, and competitor pricing comparisons.
• Alternative Recreation/Aquatic Service Providers
• Facilities and Services Offered
• Admission Rates/Attendance Numbers
Deliverables:
• Report of assembled information
• Competition analysis report
Needs Assessment
JFI will conduct focus group workshops with a cross section of the community followed
up with a validation process at a Town Hall Meeting. This work would be conducted after
a review of the market and competition analyses.
• Determination of key stakeholder groups
• Focus Group Interviews
• Evening Public Presentation of Findings
• 2 -day exercise
Deliverables:
• Report of desired programs, facilities, willingness to pay, and proposed partnerships
from each focus group.
17
• Public Presentation Slide Show
Citizen Survey
JFI will conduct a random statistically valid survey of potential users (300 responses)
based on initial input gathered from Needs Assessment.
• Determine desired data needs
■ Identify sample parameters and audience
• Develop phone/mail survey instrument and questions
• Evaluate and interpret survey results
■ Benchmarking with results from similar communities
Model Facility Program
Based upon interviews with City representatives and our database of relevant program
parameters, a model facility program can be developed and tested against current
recreation trends. The program model is revalidated against market drivers and provides
a framework for further development.
• Development of a facility program matrix including proposed space requirements
with spaces adjusted to market requirements. A program narrative of uses for each
space will accompany the matrix.
Deliverables:
• Written report of existing and proposed facility programs including a matrix of
proposed spaces/sizes and narrative of uses for each major program component.
Project Cost Model
Based upon the above information, a comprehensive cost model is developed including
costs for construction, A/E fees, FF&E, agency fees, administrative costs, and all other
related project expenses. These model(s) are in concert with data provided via the
operations plan.
Deliverables:
• Summary estimate of proposed construction budget, site, utilities, FF&E,
fees, contingencies and cost escalation to construction schedule.
Site Analysis
Site assessment will include studying and analyzing the following areas that affect the
use and capacity of existing and potential facility development. This assessment will
study and analyze existing and potential capacities, existing and potential uses, types of
components, condition of utilities and structures, parking, site layout, access, safety and
security, lighting. Each component value will be weighted with input from the Owner.
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Deliverables:
• Each site will be studied and documented on an analysis matrix and narrative.
Operations Plan and Funding Options
JFI will prepare operating and staffing cost projections, revenue forecasts, and funding
source analysis. This step assembles and prepares financial model(s) to support the
capital and operating investment.
■ Attendance Estimates - Daily, Annually, by Component
■ Fee Structure - Drop-in, Multiple Admissions/Annual Passes, Family, Corporate,
Group Rentals
• Sources of Income - Identification and Verification of Revenue Sources
■ Operating Cost Projections — Line Item Budget Development, Staff/Positions,
Contractual Services, Commodities, Capital Replacement
• Revenue Generation Projections — Line Item Accounting Development, Admissions,
Annual/multiple Admissions, Programs and Services, Rentals, Other Revenue
Sources
• Revenue/Expenditure Comparisons — Cost Recovery Level
• Construction/Operations Funding Options
Deliverables:
• Written report of staffing requirements, operating costs, and projected revenues.
• Written report of potential funding sources for construction and/or operational
expenses.
Final Document Deliverables
The study will include the following components:
• Executive Summary
■ Market Analysis
• Program Competition Analysis
• Needs Assessment Report
■ Citizen Survey
■ Model Facility Program
• Project Cost Model
• Site Analysis Matrix/Report
■ Operations Plan/Funding Options
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Schedule
Project Planning/Kick-off Meeting
Market/Competition Analysis
Needs Assessment
Citizen Survey (draft results)
Model Facility Program
Project Cost Model
Site Analysis Matrix/Report
Operations Plan
Funding Options
Final Study Submittal
City Council Retreat
City Council Presentation
Effective date - June 14, 2006
May 30 — June 12, 2006
June 14 — June 16, 2006
June 26 —July 21, 2006
July 24 — July 28, 2006
July 24 — July 28, 2006
July 24 — July 28, 2006
July 24 — August 4, 2006
July 24 — August 4, 2006
August 11, 2006
August 15 — 16, 2006
August 24, 2006
Compensation
• Project Planning
• Market/Competition Analysis
• Needs Assessment
• Citizen Survey
• Model Facility Program
• Project Cost Model
• Site Analysis Matrix/Report
• Operations Plan
• Funding Options
TOTAL Proposed Lump Sum
Estimated Reimbursables (Travel, Repro, Postage, etc.)
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$ 3,500
$ 4,500
$ 8,000
$ 9,800
$ 4,500
$ 3,500
$ 6,000
$ 8,000
$ 3,000
$50,800
$ 8,000
WORK MADE FOR HIRE AGREEMENT WITH JACOBS FACILITIES, INC.
0th
This Agreement is made on the 6 - day of the month of
2006, by and between JACOBS FACILITIES, INC., and any of its authors and/or
artists (hereinafter referred to as "Author/Artist," and if there is more than one
author/artist affiliated with the entity, then the entity and all of them collectively) and the
CITY OF ROUND ROCK, TEXAS (hereinafter referred to as the "City").
This Agreement is made simultaneous to an agreement entitled "City of Round
Rock Agreement for Professional Consulting Services for Community Needs Assessment
for Indoor Recreational Facility with Jacobs Facilities, Inc.," and encompasses the subject
matter contracted for thereunder.
AUTHOR/ARTIST AND CITY HEREBY AGREE THAT:
1. Title and Copyright Assignment
(a) Author/Artist and City intend this to be a contract for services and each considers
the products and results of the services to be rendered by Author/Artist hereunder (the
"Work") to be a work made for hire. Author/Artist acknowledges and agrees that the
Work (and all rights therein, including, without limitation, copyright) belongs to and shall
be the sole and exclusive property of City.
(b) If for any reason the Work would not be considered a work made for hire under
applicable law, Author/Artist does hereby sell, assign, and transfer to City, its successors
and assigns, the entire right, title and interest in and to the copyright in the Work and any
registrations and copyright applications relating thereto and any renewals and extensions
thereof, and in and to all works based upon, derived from, or incorporating the Work, and
in and to all income, royalties, damages, claims and payments now or hereafter due or
payable with respect thereto, and in and to all causes of action, either in law or in equity
for past, present, or future infringement based on the copyrights, and in and to all rights
corresponding to the foregoing throughout the world.
(c) If the Work is one to which the provisions of 17 U.S.C.106A apply, Author/Artist
hereby waives and appoints -City to -assert on Author/Artist's behalf the Author/Artist's
moral rights or any equivalent rights regarding the form or extent of any alteration to the
Work (including, without limitation, removal or destruction) or the making of any
derivative works based on the Work, including, without limitation, drawings or other
visual reproductions or the Work, in any medium, excepting photographs, for City's
purposes.
(d) Author/Artist agrees to execute all papers and to perform such other proper acts as
City may deem necessary to secure for City or its designee the rights herein assigned.
00100085/jk
12-04-010-013- IOD 1
2. Delivery of the Work
(a) Author/Artist will deliver to City on or before any contractually -obligated date the
completed Work (with all illustrations, charts, graphs, graphics, and other material,
including supplements, handouts, reference lists, indexes, etc., in the medium mutually
agreed upon for the Work) in form and content satisfactory to City.
(b) If Author/Artist fails to deliver the Work on time, City will have the right to
terminate this agreement and the referenced simultaneous agreement and to recover from
Author/Artist any sums advanced in connection with the Work. Upon such termination,
Author/Artist may not have the Work published or used in any form elsewhere until such
advances have been repaid.
3. Quoted Material
With the exception of short excerpts from others' works, which constitute fair use,
the Work will contain no material from other copyrighted works without a written
consent of the copyright holder. Author/Artist will obtain such consents at his/her/its own
expense after consultation with City and will file them with City at the time the Work is
delivered. Any obligations associated with permissions will be the responsibility of
Author/Artist.
4. Author/Artist's Warranty
Author/Artist warrants that he/she/it is the sole owner of the Work and has full
power and authority to make this agreement; that the Work does not infringe any
copyright, violate any property rights, or contain any scandalous, libelous, or unlawful
matter. Author/Artist will defend, indemnify, and hold harmless City and/or its licensees
against all claims, suits, costs, damages, and expenses that City and/or its licensees may
sustain by reason of any scandalous, libelous, or unlawful matter contained or alleged to
be contained in the Work or any infringement or violation by the Work of any copyright
or property right; and until such claim or suit has been settled or withdrawn, City may
withhold any sums due Author/Artist under the referenced simultaneous agreement.
5. Consideration
In consideration for delivery of the Work in accordance with the provisions of the
referenced simultaneous agreement, City shall pay Author/Artist as indicated therein.
6. Revisions
Author/Artist shall, at the request of City, revise the Work at one year intervals
during the term of the referenced simultaneous agreement.
7. Term and Termination
(a) This agreement shall remain in effect for the same length of time as the referenced
simultaneous agreement unless terminated earlier in accordance with this Section 7.
(b) In the event that either party shall be in default of its material obligations under
this agreement or the referenced simultaneous agreement and shall fail to remedy such
default within thirty (30) days after receipt of written notice thereof, the agreements shall
terminate upon expiration of the thirty (30) day period.
(c) Upon the expiration of the term of this agreement and the referenced simultaneous
agreement, the parties may agree to renew those agreements for additional terms, only as
allowed by the terms of the referenced simultaneous agreement, upon the same terms and
conditions as set forth.
8. Options/Contracts with Third Parties
Nothing contained in Section 7 shall affect any license or other grant of rights,
options, or agreements made with third parties prior to the termination date or the rights
of City in the income resulting from such agreements.
9. Amendments
The written provisions contained in this agreement, taken together inextricably
with the referenced simultaneous agreement, constitute the sole and entire agreement
made between Author/Artist and City concerning this Work, and any amendments to
same shall not be valid unless made in writing and signed by both parties.
10. Construction, Binding Effect, Venue, and Assignment
This agreement shall be construed and interpreted according to the laws of the
State of Texas and shall be binding upon the parties hereto, their heirs, successors,
assigns, and personal representatives; and venue shall lie exclusively in Williamson
County, Texas; and references to Author/Artist and to City shall include their heirs,
successors, assigns, and personal representatives.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date indicated below.
CITY OF ROUN ► R I K%
By:
Printed
Title:
ATTEST:
Christine R. Martine
�• VEL
z, City Secretary
FOR ITY, APPROV D AS TO FORM:
1
Stephan) . Sheets, City Attorney
JACOBS FACILITIES, INC.
By: J ' , ,��'•�, ✓�C�
Printed tame: .j2 ATL
Title: T) 12�,C1r9a
Date: ��v