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R-08-04-24-10D3 - 4/24/2008 RESOLUTION NO. R-08-04-24-10D3 WHEREAS, the City of Round Rock desires to retain professional consulting services for an Event Center Business Plan Review and Feasibility Study, and WHEREAS, Economics Research Associates ( "ERA" ) has submitted an Agreement for Professional Consulting Services to provide said services, and WHEREAS, the City Council desires to enter into said agreement with ERA, 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 for Event Center Business Plan Review and Feasibility Study with Economics Research Associates, 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 24th day of April, 2 8 . LL, Mayor / City of Round Rock, Texas ATTEST: 2wu—. SARA L. WHITE, City Secretary O:\W DOX\RESOLUTI\R80424D3.DOC/mu CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES FOR EVENT CENTER BUSINESS PLAN REVIEW AND FEASIBILITY STUDY WITH ECONOMICS RESEARCH ASSOCIATES (ERA) THIS AGREEMENT for professional consulting services relating to the City of Round Rock's potential construction and operation of an event facility (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 Economics Research Associates (ERA) (the "Consultant"), with offices located at 388 Market Street, Suite 1580, San Francisco, California 94111. 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 one (1) year 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 Forty-eight Thousand and No/100 Dollars ($48,000.00), in payment for Phase II services and the Phase II Scope of Work deliverables as delineated in Section 1.03. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.04. EXHIBIT 00136136/jkg .I a "An 1.03 SCOPE OF WORK The purpose of this study is to provide the City sufficient research and data in order for the City to determine the viability of the proposed event facility (identified in the first study phase) business operations. 1. Phase II Kick Off Meeting(s). The key ERA staff would meet with City staff, representatives of the Round Rock Baseball Club, L.P. (the proposed private partners, referred to hereinafter as "RRBC'), and others the City staff deem appropriate at the outset of the study. ERA will seek to gain a full understanding of the physical facility as proposed to date, as well as the business model envisioned for developing and operating the event center. Deliverable l: Initial consultant trip to Round Rock and participation in kick off meetings. 2. Update Market Context. As the Austin Metro market continues to grow and evolve, it will be necessary for ERA to briefly update our knowledge of the new facility in Cedar Park, and other new things happening in the region that could affect a new event center in Round Rock. ERA will also interview management of competitive facilities in the Austin/Round Rock metropolitan area, including the Palmer Event Center and the Crockett Center. 3. Case Studies. ERA will conduct a few case studies of comparable facilities in other areas that share one or more significant characteristics with the Round Rock Event Center concept, starting with the list identified in the Phase I research which included the John A. Alario Sr. Event Center in Westwego, Louisiana. The case studies will delve deeper than the Phase I research into how the buildings are managed, how they were developed and financed at the outset, and what the recent trends in utilization and revenue generation/cost recovery have been. Deliverable 2: Working memorandum write up of case studies. 4. User Surveys. ERA will idents sample groups representing the broad range of potential end-users of the facility, including user groups that could bring visitors from outside the Round Rock area, as well as local groups who may not expand the local economy but who could generate facility revenues. Interviews will be conducted regarding such issues as: the types of building components and amenities they would need, their likelihood and frequency of using the proposed facility, and their ability to pay facility rentals and fees. S. Business Model and Pro Forma Projections. Working with both the City and the RRBC, ERA will prepare a written description of the preferred business model for owning, operating, managing and marketing the facility. ERA will develop a pro forma that estimates the size of the financial flows associated with both the RRBC and the City over the development period and the initial years of operations. The pro forma will incorporate insights gained from case studies of the operations of comparable facilities in other cities. The expected patterns for utilization, building features needed, and pricing will be responsive to what was learned in the surveys ofpotential users. 2 6. Alternative City-Only Business Model. Working with City staff, ERA will also develop a pro forma for producing and operating the same facility on a different site with only the City as the participant. The comparison of these financial projections with those of the RRBC private partnership model in Task S will also include discussion of other operational aspects that may differ, including site considerations, synergy with surrounding uses, need for dedicated parking, etc. Deliverable 3: Draft pro forma spreadsheets for both the public/private partnership and City-only business models. A cover working memorandum describing the business models and input assumptions will also be sent with the spreadsheets. 7. Funding Potential. Working with City staff, ERA will identify sources of funding that are appropriate for the concept and include a discussion of each in the final report. These will include such possible new venue taxes as a lodging tax increase, a venue parking tax, a venue admissions tax, etc. 8. Hotel Sector Impact. As part of the pro forma projections, ERA will estimate the extent to which the facility will serve as a tourism draw, thereby serving as an economic engine for Round Rock by generating new spending in town by overnight guests. The amount of future new hotel tax and retail sales tax revenue that could be associated with each of the two business models will be estimated. 9. Report. ERA will prepare a concise but comprehensive written report documenting the research, analysis and recommendations from the study. An administrative draft will be sent to City staff, and following discussions will be revised as necessary to produce a final version suitable for presentation to City Council. Deliverable 4: Final written report. 10. Presentations (Optional). The key ERA staff will remain available to make presentations to City Council or other civic groups as needed. Phase H Scope of Work:Schedule The Phase II scope of work is estimated by ERA to take eight to ten weeks to conduct. ERA is prepared to begin work immediately upon being given notice to proceed, and ERA estimates that draft pro forma spreadsheets would be available four to six weeks after work is begun, with a draft of the full report available approximately two weeks thereafter. For purposes of this Agreement, Consultant has issued its Scope of Work for the assignments delineated herein, and such Scope of Work is recited herein. 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 Work 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 3 and in accordance with the referenced Scope of Work. Consultant shall perform its services in a professional and workmanlike manner. Consultant shall not undertake work that is beyond the Scope of Work set forth in Section 1.03. However, either party may make written requests for changes to the Scope of Work. To be effective, a change to the Scope of Work must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 1.05 hereof. 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 the following"Payment for Services:" Fees for the listed deliverables in the total amount of Forty-eight Thousand and No/100 Dollars ($48,000.00) shall be paid by the City in the following manner: (1) Upon delivery of Deliverable 1 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make an initial payment of$12,000.00; (2) Upon delivery of Deliverable 2 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of$12,000.00; (3) Upon delivery of Deliverable 3 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of$12,000.00; (4) Upon delivery of Deliverable 4 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make a final payment of the remaining $12,000.00, in full satisfaction of the total "Payment for Services" amount of$48,000.00. The approximate loading of ERA'S professional time and costs by task is as follows: ESTIMATED HOURS AND COSTS BY TASK Person-Hours Cost by Tasks Principal Associate Analyst Task I. Phase II Kick Off Meeting(s). 24 24 $9,792 2. Update Market Context. 8 16 $4,264 3. Case Studies. 10 40 $7,830 4. User Surveys. 10 40 40 $11,630 5. Business Model and Pro Forma Projections. 24 $6,792 6. Alternative City-Only Business Model. 8 $2,264 7. Funding Potential. 4 $1,132 8. Hotel Sector Impact. 8 $2,264 9. Report. 8 $2,264 Total Person-Hours 104 120 40 Total Professional Time Cost $48,232 4 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 for Phase II shall not exceed the total amount of Seven Thousand Two Hundred and No/100 Dollars ($7,200.00). Not-to-Exceed Total Payment for Services: Unless subsequently changed by Supplemental Agreement, Consultant's total compensation for consulting services hereunder shall not exceed Forty-eight Thousand and No/100 Dollars ($48,000.00). This amount represents the absolute limit of the City's liability to Consultant hereunder unless same shall be changed by Supplemental Agreement, and the City shall pay, strictly within 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 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 Work, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the 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. 5 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 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 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) additional unbound copy being delivered which is suitable for making 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 Section 1.03 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 the City's budget for the fiscal year in question. The City may effect such termination by giving Consultant a written notice of termination at the end of its then current fiscal year. 1.10 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by the City to Consultant will be made within thirty(30) days of the date the City receives 6 goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date the City receives a correct invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by the City in the event: (a) There is a bona fide dispute between the City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or (b) There is a bona fide dispute between Consultant and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or (c) The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or (d) The invoice is not mailed to the City in strict accordance with any instruction on the purchase order relating to the payment. 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 fixture use, subject to the conditions set forth in the Standard Proposal Addendum. 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 City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. 7 Default: Either party may terminate this Agreement, in whole or in part, for default if the Party provides the other Party with written notice of such default and the other fails to satisfactorily cure such default within ten (10) business days of receipt of such notice (or a greater time if agreed upon between the Parties). If default results in termination of this Agreement, then 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. Neither party shall 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 terminating Party and the terminated Party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which is unsatisfactory, or which is not submitted in compliance with the terms of this Agreement. 1.12 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not 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 it performs its services required by this Agreement. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and 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. 8 (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. 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 require 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 as accurate and complete. 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. 9 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. 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 10 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. 1.16 WARRANTIES Consultant represents that all services performed hereunder shall be performed consistent with generally prevailing professional or industry standards, and shall be performed in a professional and workmanlike manner. Consultant shall re-perform any work not in compliance with this representation. 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 reasonable 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 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 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 11 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- 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. 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. 12 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 perfon-ning 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 City by mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify City, within ten (10) days of receipt, of any notices of expiration, cancellation, non-renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and designated agents in their official capacities, or while acting on behalf of the City of Round Rock. 13 (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self-Insured Retentions of whatever nature. (5) Consultant and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with 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 hereunder. 1.24 DESIGNATION OF REPRESENTATIVES The City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: David Kautz Assistant City Manager/CFO City of Round Rock 221 East Main Street Round Rock, Texas 78664 Email: davidkground-rock.tx.us Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Steven E. Spickard, Senior Vice President Economics Research Associates 388 Market Street, Suite 1580 San Francisco, CA 94111 14 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: Steven E. Spickard, Senior Vice President Economics Research Associates 388 Market Street, Suite 1580 San Francisco, CA 94111 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. 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 expressly agree that, in the event of any conflict between the terms of this Agreement and any 15 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 hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to 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 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. 16 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 Attest: By: Title: Sara L. White, City Secretary Date Signed: Date Signed: Economics Research Associates (ERA) For City,Approved as to Form: By: Printed Name: Stephan L. Sheets, City Attorney Title: Date Signed: 17 ECONOMICS RESEARCH ASSOCIATES STANDARD PROPOSAL ADDENDUM If is understood by the client that Economics Research Associates (ERA) can make no guarantees concerning the recommendations which will result from the proposed assignment, since these recommendations must be based upon facts discovered by ERA during the course of the study and those conditions existing as of the date of the report. To protect you and other clients, and to assure that the research results of ERA's work will continue to be accepted as objective and impartial by the business community, it is understood that our fee for the undertaking of this project is in no way dependent upon the specific conclusions reached or the nature of the advice given by us in our report to you. It is agreed by the client that the report is not to be used in conjunction with any public or private offering of debt or equity securities without prior written consent. It is further agreed that the client will indemnify ERA against any losses, claims, damages and liabilities under federal and state securities laws which may arise as a result of statements or omissions in public or private offerings of securities. It is agreed by the client that payment for the services of ERA is due upon receipt of progress invoices; and that full payment is due upon receipt of the completed report. In the event any invoice is not paid within 30 days after rendering of the invoice, then applicable provisions of Sections 1.06 and 1.10 of the Agreement shall govern. It is further agreed by the client that the report will be presented to third parties in its entirety and that no abstracting of the report will be made without first obtaining the permission of ERA,which permission shall not be unreasonably withheld. It is understood by ERA that the findings of this report are the proprietary property of the client and they will not be made available to any other organization or individual without the consent of the client, which consent shall not be unreasonably withheld. 00099691/jkg DATE: April 17, 2008 SUBJECT: City Council Meeting—April 24, 2008 ITEM: 10D3. Consider a resolution authorizing the Mayor to execute an agreement with Economics Research Associates to determine the feasibility and to develop a recommended business plan for the proposed special events center. Department: Administration Department Staff Person: David Kautz, Assistant City Manager/CFO Justification: This study phase by ERA is to provide the City sufficient research and data in order for the City to determine the financial operations viability of the proposed event facility which was identified in the first study phase. ERA will analyze the proposed private sector partnership model and compare it with an alternative business model based on City-only development and operations. Funding: Cost: $48,000 plus reimbursable expenses not to exceed $7,200 Source of funds: Hotel Occupancy Tax Outside Resources: Economic Research Associates Background Information: City Council approved R-06-05-25-11C1 allowing ERA to conduct a broad survey study as Phase I to determine alternative concepts for a public assembly facility. Public Comment: City staff and the City's consultants have regularly visited with community and business interests to stay aware of the important development and operating issues surrounding the proposed special events center. EXECUTED DOCUMENT FOLLOWS CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES FOR EVENT CENTER BUSINESS PLAN REVIEW AND FEASIBILITY STUDY WITH ECONOMICS RESEARCH ASSOCIATES (ERA) THIS AGREEMENT for professional consulting services relating to the City of Round Rock's potential construction and operation of an event facility (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 Economics Research Associates (ERA) (the "Consultant"), with offices located at 388 Market Street, Suite 1580, San Francisco, California 94111. 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 one (1) year 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 Forty-eight Thousand and No/100 Dollars ($48,000.00), in payment for Phase II services and the Phase II Scope of Work deliverables as delineated in Section 1.03. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.04. 00136136/jkg -lo D3 1.03 SCOPE OF WORK The purpose of this study is to provide the City sufficient research and data in order for the City to determine the viability of the proposed event facility (identified in the first study phase) business operations. 1. Phase II Kick Off Meeting(s). The key ERA staff would meet with City staff, representatives of the Round Rock Baseball Club, L.P. (the proposed private partners, referred to hereinafter as "RRBC'), and others the City staff deem appropriate at the outset of the study. ERA will seek to gain a full understanding of the physical facility as proposed to date, as well as the business model envisioned for developing and operating the event center. Deliverable 1: Initial consultant trip to Round Rock and participation in kick off meetings. 2. Update Market Context. As the Austin Metro market continues to grow and evolve, it will be necessary for ERA to briefly update our knowledge of the new facility in Cedar Park, and other new things happening in the region that could affect a new event center in Round Rock. ERA will also interview management of competitive facilities in the Austin/Round Rock metropolitan area, including the Palmer Event Center and the Crockett Center. 3. Case Studies. ERA will conduct a few case studies of comparable facilities in other areas that share one or more significant characteristics with the Round Rock Event Center concept, starting with the list identified in the Phase I research which included the John A. Alario Sr. Event Center in Westwego, Louisiana. The case studies will delve deeper than the Phase I research into how the buildings are managed, how they were developed and financed at the outset, and what the recent trends in utilization and revenue generation/cost recovery have been. Deliverable 2: Working memorandum write up of case studies. 4. User Surveys. ERA will identify sample groups representing the broad range of potential end-users of the facility, including user groups that could bring visitors from outside the Round Rock area, as well as local groups who may not expand the local economy but who could generate facility revenues. Interviews will be conducted regarding such issues as: the types of building components and amenities they would need, their likelihood and frequency of using the proposed facility, and their ability to pay facility rentals and fees. S. Business Model and Pro Forma Projections. Working with both the City and the RRBC ERA will prepare a written description of the preferred business model for owning, operating, managing and marketing the facility. ERA will develop a pro forma that estimates the size of the financial flows associated with both the RRBC and the City over the development period and the initial years of operations. The pro forma will incorporate insights gained from case studies of the operations of comparable facilities in other cities. The expected patterns for utilization, building features needed, and pricing will be responsive to what was learned in the surveys ofpotential users. 2 6. Alternative City-Only Business Model. Working with City staff, ERA will also develop a pro forma for producing and operating the same facility on a different site with only the City as the participant. The comparison of these financial projections with those of the RRBC private partnership model in Task S will also include discussion of other operational aspects that may differ, including site considerations, synergy with surrounding uses, need for dedicated parking, etc. Deliverable 3: Draft pro forma spreadsheets for both the public/private partnership and City-only business models. A cover working memorandum describing the business models and input assumptions will also be sent with the spreadsheets. 7. Funding Potential. Working with City staff, ERA will identify sources of funding that are appropriate for the concept and include a discussion of each in the final report. These will include such possible new venue taxes as a lodging tax increase, a venue parking tax, a venue admissions tax, etc. 8. Hotel Sector Impact. As part of the pro forma projections, ERA will estimate the extent to which the facility will serve as a tourism draw, thereby serving as an economic engine for Round Rock by generating new spending in town by overnight guests. The amount of future new hotel tax and retail sales tax revenue that could be associated with each of the two business models will be estimated. 9. Report. ERA will prepare a concise but comprehensive written report documenting the research, analysis and recommendations from the study. An administrative draft will be sent to City staff, and following discussions will be revised as necessary to produce a final version suitable for presentation to City Council. Deliverable 4: Final written report. 10. Presentations (Optional). The key ERA staff will remain available to make presentations to City Council or other civic groups as needed. Phase H Scone of Work:Schedule The Phase II scope of work is estimated by ERA to take eight to ten weeks to conduct. ERA is prepared to begin work immediately upon being given notice to proceed, and ERA estimates that draft pro forma spreadsheets would be available four to six weeks after work is begun, with a draft of the full report available approximately two weeks thereafter. For purposes of this Agreement, Consultant has issued its Scope of Work for the assignments delineated herein, and such Scope of Work is recited herein. 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 Work 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 3 and in accordance with the referenced Scope of Work. Consultant shall perform its services in a professional and workmanlike manner. Consultant shall not undertake work that is beyond the Scope of Work set forth in Section 1.03. However, either party may make written requests for changes to the Scope of Work. To be effective, a change to the Scope of Work must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 1.05 hereof. 1.04 PAYMENT FOR SERVICtS; REIMBURSABLE EXPENSES Payment for Services: In consideration for the consulting services to be performed by Consultant, the City agrees to pay Consultant the following"Payment for Services:" Fees for the listed deliverables in the total amount of Forty-eight Thousand and No/100 Dollars ($48,000.00) shall be paid by the City in the following manner: (1) Upon delivery of Deliverable 1 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make an initial payment of$12,000.00; (2) Upon delivery of Deliverable 2 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of$12,000.00; (3) Upon delivery of Deliverable 3 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of$12,000.00; (4) Upon delivery of Deliverable 4 delineated in Section 1.03, the City shall be invoiced by Consultant and the City shall thereupon make a final payment of the remaining $12,000.00, in full satisfaction of the total "Payment for Services" amount of$48,000.00. The approximate loading of ERA's professional time and costs by task is as follows: ESTIMATED HOURS AND COSTS BY TASK Person-Hours Cost by Tasks Principal Associate Analyst Task 1. Phase II Kick Off Meeting(s). 24 24 $9,792 2. Update Market Context. 8 16 $4,264 3. Case Studies. 10 40 $7,830 4. User Surveys. 10 40 40 $11,630 5. Business Model and Pro Forma Projections. 24 $6,792 6. Alternative City-Only Business Model. 8 $2,264 7. Funding Potential. 4 $1,132 8. Hotel Sector Impact. 8 $2,264 9. Report. 8 $2,264 Total Person-Hours 104 120 40 Total Professional Time Cost $48,232 4 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 for Phase II shall not exceed the total amount of Seven Thousand Two Hundred and No/100 Dollars ($7,200.00). Not-to-Exceed Total Payment for Services: Unless subsequently changed by Supplemental Agreement, Consultant's total compensation for consulting services hereunder shall not exceed Forty-eight Thousand and No/100 Dollars ($48,000.00). This amount represents the absolute limit of the City's liability to Consultant hereunder unless same shall be changed by Supplemental Agreement, and the City shall pay, strictly within 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 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 Work, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the 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. 5 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 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 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) additional unbound copy being delivered which is suitable for making 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 Section 1.03 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 the City's budget for the fiscal year in question. The City may effect such termination by giving Consultant a written notice of termination at the end of its then current fiscal year. 1.10 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by the City to Consultant will be made within thirty(30) days of the date the City receives 6 goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date the City receives a correct invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by the City in the event: (a) There is a bona fide dispute between the City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or (b) There is a bona fide dispute between Consultant and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or (c) The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or (d) The invoice is not mailed to the City in strict accordance with any instruction on the purchase order relating to the payment. 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, subject to the conditions set forth in the Standard Proposal Addendum. 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 City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. 7 Default: Either party may terminate this Agreement, in whole or in part, for default if the Party provides the other Party with written notice of such default and the other fails to satisfactorily cure such default within ten (10) business days of receipt of such notice (or a greater time if agreed upon between the Parties). If default results in termination of this Agreement, then 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. Neither party shall 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 terminating Party and the terminated Party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which is unsatisfactory, or which is not submitted in compliance with the terms of this Agreement. 1.12 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not 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 it performs its services required by this Agreement. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and 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. 8 (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. 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 require 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 as accurate and complete. 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. 9 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. 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 10 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. 1.16 WARRANTIES Consultant represents that all services performed hereunder shall be performed consistent with generally prevailing professional or industry standards, and shall be performed in a professional and workmanlike manner. Consultant shall re-perform any work not in compliance with this representation. 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 reasonable 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 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 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 11 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- 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. 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. 12 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 City by mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify City, within ten (10) days of receipt, of any notices of expiration, cancellation, non-renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and designated agents in their official capacities, or while acting on behalf of the City of Round Rock. 13 (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self-Insured Retentions of whatever nature. (5) Consultant and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with 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 hereunder. 1.24 DESIGNATION OF REPRESENTATIVES The City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: David Kautz Assistant City Manager/CFO City of Round Rock 221 East Main Street Round Rock, Texas 78664 Email: davidk@round-rock.tx.us Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Steven E. Spickard, Senior Vice President Economics Research Associates 388 Market Street, Suite 1580 San Francisco, CA 94111 14 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: Steven E. Spickard, Senior Vice President Economics Research Associates 388 Market Street, Suite 1580 San Francisco, CA 94111 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. 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 expressly agree that, in the event of any conflict between the terms of this Agreement and any 15 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 hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to 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 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. 16 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 7"o exas Attest: By: " L T Sara L.White, Cit Secretary Date Signed: Date Signed: . . flia Economics Research Associates(ERA) For Appr ved as o Form: By: P " ed Name: ep—' Steff L. Sheets, City Attorney Title: -5i= 'VT' se c-f eta Date Signed: -t'7-G 17 ECONOMICS RESEARCH ASSOCIATES STANDARD PROPOSAL ADDENDUM If is understood by the client that Economics Research Associates (ERA) can make no guarantees concerning the recommendations which will result from the proposed assignment, since these recommendations must be based upon facts discovered by ERA during the course of the study and those conditions existing as of the date of the report. To protect you and other clients, and to assure that the research results of ERA's work will continue to be accepted as objective and impartial by the business community, it is understood that our fee for the undertaking of this project is in no way dependent upon the specific conclusions reached or the nature of the advice given by us in our report to you. It is agreed by the client that the report is not to be used in conjunction with any public or private offering of debt or equity securities without prior written consent. It is further agreed that the client will indemnify ERA against any losses, claims, damages and liabilities under federal and state securities laws which may arise as a result of statements or omissions in public or private offerings of securities. It is agreed by the client that payment for the services of ERA is due upon receipt of progress invoices; and that full payment is due upon receipt of the completed report. In the event any invoice is not paid within 30 days after rendering of the invoice, then applicable provisions of Sections 1.06 and l.10 of the Agreement shall govern. It is further agreed by the client that the report will be presented to third parties in its entirety and that no abstracting of the report will be made without first obtaining the permission of ERA,which permission shall not be unreasonably withheld. It is understood by ERA that the findings of this report are the proprietary property of the client and they will not be made available to any other organization or individual without the consent of the client, which consent shall not be unreasonably withheld. 00099691/jkg