Loading...
R-09-02-12-10E4 - 2/12/2009RESOLUTION NO. R -09-02-12-10E4 WHEREAS, the City of Round Rock desires to retain professional consulting services in relation to identifying and securing federal funding for growth and development projects, and WHEREAS, Capitol Partners, Inc. has submitted an Agreement for Professional Public Affairs Consulting Services to provide said services, and WHEREAS, the City Council desires to enter into said agreement with Capitol Partners, Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement for Professional Public Affairs Consulting Services with Capitol Partners, Inc., a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended RESOLVED this 12th day of February, 2009. ATTEST: SARA L. WHITE, City Secretary 0:\WDOX\RESOLUTI\R90212E4.DOC/rmc ALAN MCGRAW, Mayor City of Round Rock, Texas CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL PUBLIC AFFAIRS CONSULTING SERVICES WITH CAPITOL PARTNERS, INC. EXHIBIT ly a "A" This Agreement (hereinafter referred to as the "Agreement") is made by and between the City of Round Rock, a Texas home -rule municipal corporation whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and Capitol Partners, Inc. whose offices are located at 1101 17th Street NW, Suite 202, Washington, DC 20036 (hereinafter referred to as the "Consultant"). This Agreement shall recite the contractual terms whereby the City of Round Rock engages Capitol Partners, Inc. to perform, by way of illustration and not limitation, the following services: Public affairs consulting services in relation to identifying and securing federal funding for growth and development projects, and in relation to developing partnerships between the City of Round Rock, Congress, and the federal government that result in substantial government funding and support for desired infrastructure and other projects. 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 from February 1, 2009, 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 services specified herein is achieved, but in no event later than twelve (12) months from the effective date of this Agreement. At City's sole and unfettered option, this Agreement may be renewed for additional twelve (12) month periods from the expiration date of the initial term, only upon the express written agreement of both parties and only provided Consultant has performed each and every contractual obligation specified in this Agreement. City reserves the right to review the Agreement and contractual relationship at any time, and may elect to terminate same with or without cause or may elect to continue. 00153036/jkg 1.02 CONTRACT AMOUNT; SCOPE OF SERVICES DELINEATION In consideration for the professional services to be performed by Consultant, City agrees to pay Consultant the amount of Eight Thousand and No/100 Dollars ($8,000.00) per month as a retainer for services and for receipt of the "Public Affairs Proposal" deliverables as delineated herein. This amount does not include administrative fees which otherwise are payable under this Agreement as delineated in Section 1.03. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.03. For purposes of this Agreement, Consultant has issued its "Public Affairs Proposal" for the services delineated herein. Such "Public Affairs Proposal" is attached hereto as Exhibit "A" and incorporated herein by reference for all purposes. This Agreement, and its accompanying exhibit, 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 described under the attached "Public Affairs Proposal" within the contract term specified in Section 1.01. Consultant's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement, in accordance with any appended exhibits, in accordance with due care, and in accordance with prevailing consulting industry standards for comparable services. 1.03 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES; SUPPLEMENTAL AGREEMENTS Payment for Services: In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant in accordance with the terms set forth below: All retainer payments to Consultant shall be made on the basis of invoices submitted by Consultant and approved by City in accordance with Section 1.04 herein, payable monthly in advance. Payment for Administrative Fees: Administrative fees in the amount of $200.00 per month shall be paid to Consultant, upon Consultant properly invoicing for same and providing documentation for same. Such administrative fees shall cover Consultant's incidental costs including but not limited to postage charges, facsimile charges, telephone charges, and the like. Payment for Reimbursable Expenses: Reimbursable expenses authorized in writing in advance by City shall be paid to Consultant at actual cost, upon Consultant properly invoicing for same and providing documentation for same. Not -to -Exceed Total for Services: Unless subsequently changed by additional Supplemental Agreement hereto, duly authorized by City Council or City Manager action, Consultant's total compensation for services hereunder shall not exceed $96,000.00. This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's professional fees for work done on behalf of City. Not -to -Exceed Total for Administrative Fees: Unless subsequently changed by additional Supplemental Agreement hereto, duly authorized by City Council or City Manager action, Consultant's total compensation for administrative fees hereunder shall not exceed $2,400.00. This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional 2 Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's administrative fees for work done on behalf of City. Deductions: No deductions shall be made for Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions: No additions shall be made to Consultant's compensation based upon claims, whether paid by City or denied. Supplemental Agreements: The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if City determines that there has been a significant change in (1) the scope, complexity, or character of the services to be performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. Consultant shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done unless and until there is full execution of any Supplemental Agreement, and City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. 1.04 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment, Consultant shall prepare and submit a series of monthly invoices to City. Each invoice for professional services shall detail the services performed, along with documentation. All payments to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by City. Should additional backup material be requested by City, Consultant shall comply promptly. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. If City has any dispute with work performed, then City shall notify Consultant within thirty (30) days after receipt of invoice. In the event of any dispute regarding the work performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide City with an appropriate credit. Payment of Invoices: City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of invoices, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.08 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which are late because of a good faith dispute between Consultant and City or because of amounts which City has a right to withhold under this Agreement or state law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. Offsets: City may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. 1.05 REQUIRED REPORTS Consultant agrees to provide City with any necessary detailed final written reports, together with all information gathered and materials developed during the course of the relationship. Additionally, 3 Consultant agrees to provide City with any necessary oral presentations of such detailed final written reports, at City's designation and at no additional cost to City. 1.06 LIMITATION TO SCOPE OF SERVICES Consultant and City agree that the scope of services to be performed is generally enumerated in the "Public Affairs Proposal" labeled as Exhibit "A" and attached hereto. Notwithstanding anything herein to the contrary, the parties agree that City retains absolute discretion and authority for all funding decisions, such decisions to be based solely on criteria accepted by City which may be influenced by but not be dependent on Consultant's work. 1.07 NON -APPROPRIATION; FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Consultant a written notice of termination at the end of its then -current fiscal year. 1.08 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by City to Consultant will be made within thirty (30) days of the date City receives goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date City receives a correct invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by City in the event: (a) (b) (c) There is a bona fide dispute between City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or 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 The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or (d) The invoice is not mailed to City in strict accordance with any instruction relating to the payment. 1.09 TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that City may terminate this Agreement for the convenience of City, upon thirty (30) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work being performed under this Agreement shall cease. Consultant shall invoice City for work satisfactorily completed and shall be compensated in accordance with the terms hereof for work accomplished prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or anticipated profits for work terminated under this Agreement. Unless otherwise specified in this Agreement, all data, information, and work product related to this project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City 4 in a reasonably organized form without restriction on future use, subject to the conditions set forth herein. Should City subsequently contract with a new consultant for continuation of service, Consultant shall cooperate in providing information. Termination of this Agreement shall extinguish all rights, duties, and obligations of City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. Default: Either party may terminate this Agreement, in whole or in part, for default if the alleging 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 City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to City, the cost to City of employing another firm to complete the useable work, and other factors will affect the value to City of the work performed at the time of default. 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 City to pay for any work which is unsatisfactory, or which is not submitted in compliance with the terms of this Agreement. 1.10 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not City's employee. Consultant's employees or subcontractors are not City's employees. This Agreement does not create a partnership, employer- employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and City agree to the following rights consistent with an independent contractor relationship: (1) Consultant has the right to perform services for others during the term hereof. (2) Consultant has the sole right to control and direct the means, manner and method by which it performs its services required by this Agreement. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and City shall not hire, supervise, or pay assistants to help Consultant. (5) Neither Consultant nor its employees or subcontractors shall receive training from City in skills necessary to perform services required by this Agreement. 5 (6) City shall not require Consultant or its employees or subcontractors to devote full time to performing the services required by this Agreement. (7) Neither Consultant nor its employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City. 1.11 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither City nor Consultant shall offer employment to or shall employ any person employed then or within the preceding twelve (12) months by the other or any affiliate of the other if such person was involved, directly or indirectly, in the performance of this Agreement. This provision shall not prohibit the hiring of any person who was solicited solely through a newspaper advertisement or other general solicitation. 1.12 CITY'S RESPONSIBILITIES Full information: City shall provide full information regarding project requirements. City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required to enable Consultant to provide the services called for. City shall require its employees and any third parties who are otherwise assisting, advising or representing City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by City or its designated representative concerning provision of services as accurate and complete. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. City shall furnish information which includes but is not limited to pertinent correspondence with other local municipal and planning officials, previous analyses or feasibility studies, and other pertinent information. Consultant agrees, within ten (10) days of the effective date of this Agreement, to provide City with a comprehensive and detailed information request list. 1.13 CONFIDENTIALITY; MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that City is subject to the Freedom of Information Act and its duties run in accordance therewith. All data relating specifically to City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential 6 information of Consultant. 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 City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for City and delivered to City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than the Deliverables). Consultant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to Consultant. City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for 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. 1.14 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. 1.15 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to 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 1.09, then this Agreement may be terminated for default. In no event will Consultant be liable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by City, its directors, employees or agents. In no event shall Consultant be liable to City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 1.16 INDEMNIFICATION Consultant and 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 City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to City in connection with the performance of this Agreement. Should City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non -infringing while yielding substantially equivalent results. If neither of the above options are or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, City shall return such deliverables provided, and Consultant will refund to City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based upon (1) designs provided by or at the direction of City or (2) specifications or other information provided by or at the direction of City; or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. The indemnified party shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through counsel. 1.17 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. 8 1.18 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. City will not do the following: (1) Withhold FICA from Consultant's payments or make FICA payments on its behalf; (2) Make state and/or federal unemployment compensation contributions on Consultant's behalf; or (3) Withhold state or federal income tax from any of Consultant's payments. If requested, City shall provide Consultant with a certificate from the Texas State Comptroller indicating that City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 1.19 INSURANCE Insurance: Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. Subconsultant Insurance: Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements: Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or any material change in coverage, a notice thereof shall be given to City by 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. 9 (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. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Consultant and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. Cost of Insurance: The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with City. 1.20 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES As this Agreement is a contract for public affairs consulting services, Consultant will strictly adhere to both the letter and spirit of all federal, state, and local lobbying laws. Consultant, its consultants, agents, employees and subcontractors shall comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to City at the expiration of the term of this Agreement. 1.21 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. 1.22 DESIGNATION OF REPRESENTATIVES City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: James R. Nuse, PE City Manager City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Carl Holshouser, Principal Capitol Partners, Inc. 1101 17th Street NW, Suite 202 Washington, DC 20036 10 1.23 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: Capitol Partners, Inc. 1101 17th Street NW, Suite 202 Washington, DC 20036 Notice to City: City Manager, City of Round Rock 221 East Main Street Round Rock, TX 78664 AND TO: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.24 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. 1.25 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 1.26 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall select one mediator and Consultant shall select one mediator and those two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. 11 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. 1.27 FORCE MAJEURE Notwithstanding any other provisions hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to City if its failure to perform or its substantial delay in performance is due to City's failure to timely provide requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 1.28 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.29 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 industry practices. 1.30 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing and signed by an authorized representative of the party against whom such waiver or discharge is sought to be enforced. This Agreement may be executed in multiple counterparts, which taken together shall be considered one original. City agrees to provide Consultant with one fully executed original. 12 IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate originals on the dates hereafter indicated. CITY OF ROUND ROCK, TEXAS CAPITOL PARTNERS, INC. By: By: Printed Name: Printed Name: Title: Title: Date Signed: Date Signed: ATTEST: By: Sara L. White, City Secretary FOR CITY, APPROVED AS TO FORM: By: Stephan L. Sheets, City Attorney 13 EXHIBIT A Capitol Partners Proposal 14 DATE: February 4, 2009 SUBJECT: City Council Meeting — February 12, 2009 ITEM: 10E4. Consider a resolution authorizing the Mayor to execute a Professional Consulting Services agreement with Capitol Partners, Inc. Department: Staff Person: Justification: Administration Cindy Demers, Assistant City Manager This agreement is from February 1, 2009 to January 31, 2010 for professional consulting work related to identifying and securing federal funding for growth and development projects. Funding: Cost: $98, 400.00 Source of Funds: General and Utility Funds Outside Resources: Capitol Partners, Inc. Background Information: The City was contacted by at least two firms interested in working to secure federal and/or state funding for the City of Round Rock. With the potential economic stimulus opportunities being discussed as well as the change in administration this appears to be an opportune time for Round Rock to consider hiring a firm to help secure some of this funding as well as assist with legislative activities at the federal level — i.e. streamline sales tax, federal transit legislation. Capitol Partners, based out of Washington, has the background, knowledge and contacts to effectively work through the federal process. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL PUBLIC AFFAIRS CONSULTING SERVICES WITH CAPITOL PARTNERS, INC. This Agreement (hereinafter referred to as the "Agreement") is made by and between the City of Round Rock, a Texas home -rule municipal corporation whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and Capitol Partners, Inc. whose offices are located at 1101 17th Street NW, Suite 202, Washington, DC 20036 (hereinafter referred to as the "Consultant"). This Agreement shall recite the contractual terms whereby the City of Round Rock engages Capitol Partners, Inc. to perform, by way of illustration and not limitation, the following services: Public affairs consulting services in relation to identifying and securing federal funding for growth and development projects, and in relation to developing partnerships between the City of Round Rock, Congress, and the federal government that result in substantial government funding and support for desired infrastructure and other projects. 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 from February 1, 2009, 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 services specified herein is achieved, but in no event later than twelve (12) months from the effective date of this Agreement. At City's sole and unfettered option, this Agreement may be renewed for additional twelve (12) month periods from the expiration date of the initial term, only upon the express written agreement of both parties and only provided Consultant has performed each and every contractual obligation specified in this Agreement. City reserves the right to review the Agreement and contractual relationship at any time, and may elect to terminate same with or without cause or may elect to continue. 00153036/jkg - D9- 02-12- I off. 1.02 CONTRACT AMOUNT; SCOPE OF SERVICES DELINEATION In consideration for the professional services to be performed by Consultant, City agrees to pay Consultant the amount of Eight Thousand and No/100 Dollars ($8,000.00) per month as a retainer for services and for receipt of the "Public Affairs Proposal" deliverables as delineated herein. This amount does not include administrative fees which otherwise are payable under this Agreement as delineated in Section 1.03. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.03. For purposes of this Agreement, Consultant has issued its "Public Affairs Proposal" for the services delineated herein. Such "Public Affairs Proposal" is attached hereto as Exhibit "A" and incorporated herein by reference for all purposes. This Agreement, and its accompanying exhibit, 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 described under the attached "Public Affairs Proposal" within the contract term specified in Section 1.01. Consultant's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement, in accordance with any appended exhibits, in accordance with due care, and in accordance with prevailing consulting industry standards for comparable services. 1.03 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES; SUPPLEMENTAL AGREEMENTS Payment for Services: In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant in accordance with the terms set forth below: All retainer payments to Consultant shall be made on the basis of invoices submitted by Consultant and approved by City in accordance with Section 1.04 herein, payable monthly in advance. Payment for Administrative Fees: Administrative fees in the amount of $200.00 per month shall be paid to Consultant, upon Consultant properly invoicing for same and providing documentation for same. Such administrative fees shall cover Consultant's incidental costs including but not limited to postage charges, facsimile charges, telephone charges, and the like. Payment for Reimbursable Expenses: Reimbursable expenses authorized in writing in advance by City shall be paid to Consultant at actual cost, upon Consultant properly invoicing for same and providing documentation for same. Not -to -Exceed Total for Services: Unless subsequently changed by additional Supplemental Agreement hereto, duly authorized by City Council or City Manager action, Consultant's total compensation for services hereunder shall not exceed $96,000.00. This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's professional fees for work done on behalf of City. Not -to -Exceed Total for Administrative Fees: Unless subsequently changed by additional Supplemental Agreement hereto, duly authorized by City Council or City Manager action, Consultant's total compensation for administrative fees hereunder shall not exceed $2,400.00. This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional 2 Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's administrative fees for work done on behalf of City. Deductions: No deductions shall be made for Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions: No additions shall be made to Consultant's compensation based upon claims, whether paid by City or denied. Supplemental Agreements: The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if City determines that there has been a significant change in (1) the scope, complexity, or character of the services to be performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. Consultant shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done unless and until there is full execution of any Supplemental Agreement, and City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. 1.04 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment, Consultant shall prepare and submit a series of monthly invoices to City. Each invoice for professional services shall detail the services performed, along with documentation. All payments to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by City. Should additional backup material be requested by City, Consultant shall comply promptly. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. If City has any dispute with work performed, then City shall notify Consultant within thirty (30) days after receipt of invoice. In the event of any dispute regarding the work performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide City with an appropriate credit. Payment of Invoices: City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of invoices, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.08 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which are late because of a good faith dispute between Consultant and City or because of amounts which City has a right to withhold under this Agreement or state law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. Offsets: City may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. 1.05 REQUIRED REPORTS Consultant agrees to provide City with any necessary detailed final written reports, together with all information gathered and materials developed during the course of the relationship. Additionally, 3 Consultant agrees to provide City with any necessary oral presentations of such detailed final written reports, at City's designation and at no additional cost to City. 1.06 LIMITATION TO SCOPE OF SERVICES Consultant and City agree that the scope of services to be performed is generally enumerated in the "Public Affairs Proposal" labeled as Exhibit "A" and attached hereto. Notwithstanding anything herein to the contrary, the parties agree that City retains absolute discretion and authority for all funding decisions, such decisions to be based solely on criteria accepted by City which may be influenced by but not be dependent on Consultant's work. 1.07 NON -APPROPRIATION; FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Consultant a written notice of termination at the end of its then -current fiscal year. 1.08 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by City to Consultant will be made within thirty (30) days of the date City receives goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date City receives a correct invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by City in the event: (a) (b) There is a bona fide dispute between City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or There is a bona fide dispute between Consultant and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or (c) The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or (d) The invoice is not mailed to City in strict accordance with any instruction relating to the payment. 1.09 TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that City may terminate this Agreement for the convenience of City, upon thirty (30) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work being performed under this Agreement shall cease. Consultant shall invoice City for work satisfactorily completed and shall be compensated in accordance with the terms hereof for work accomplished prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or anticipated profits for work terminated under this Agreement. Unless otherwise specified in this Agreement, all data, information, and work product related to this project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City 4 in a reasonably organized form without restriction on future use, subject to the conditions set forth herein. Should City subsequently contract with a new consultant for continuation of service, Consultant shall cooperate in providing information. Termination of this Agreement shall extinguish all rights, duties, and obligations of City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. Default: Either party may terminate this Agreement, in whole or in part, for default if the alleging 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 City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to City, the cost to City of employing another firm to complete the useable work, and other factors will affect the value to City of the work performed at the time of default. 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 City to pay for any work which is unsatisfactory, or which is not submitted in compliance with the terms of this Agreement. 1.10 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not City's employee. Consultant's employees or subcontractors are not City's employees. This Agreement does not create a partnership, employer- employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and City agree to the following rights consistent with an independent contractor relationship: (1) Consultant has the right to perform services for others during the term hereof. (2) Consultant has the sole right to control and direct the means, manner and method by which it performs its services required by this Agreement. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and City shall not hire, supervise, or pay assistants to help Consultant. (5) Neither Consultant nor its employees or subcontractors shall receive training from City in skills necessary to perform services required by this Agreement. 5 (6) City shall not require Consultant or its employees or subcontractors to devote full time to performing the services required by this Agreement. (7) Neither Consultant nor its employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City. 1.11 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither City nor Consultant shall offer employment to or shall employ any person employed then or within the preceding twelve (12) months by the other or any affiliate of the other if such person was involved, directly or indirectly, in the performance of this Agreement. This provision shall not prohibit the hiring of any person who was solicited solely through a newspaper advertisement or other general solicitation. 1.12 CITY'S RESPONSIBILITIES Full information: City shall provide full information regarding project requirements. City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required to enable Consultant to provide the services called for. City shall require its employees and any third parties who are otherwise assisting, advising or representing City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by City or its designated representative concerning provision of services as accurate and complete. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. City shall furnish information which includes but is not limited to pertinent correspondence with other local municipal and planning officials, previous analyses or feasibility studies, and other pertinent information. Consultant agrees, within ten (10) days of the effective date of this Agreement, to provide City with a comprehensive and detailed information request list. 1.13 CONFIDENTIALITY; MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that City is subject to the Freedom of Information Act and its duties run in accordance therewith. All data relating specifically to City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential 6 information of Consultant. 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 City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for City and delivered to City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than the Deliverables). Consultant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to Consultant. City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for 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. 1.14 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. 1.15 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to 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 1.09, then this Agreement may be terminated for default. In no event will Consultant be liable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by City, its directors, employees or agents. In no event shall Consultant be liable to City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 1.16 INDEMNIFICATION Consultant and 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 City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to City in connection with the performance of this Agreement. Should City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non -infringing while yielding substantially equivalent results. If neither of the above options are or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, City shall return such deliverables provided, and Consultant will refund to City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based upon (1) designs provided by or at the direction of City or (2) specifications or other information provided by or at the direction of City; or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. The indemnified party shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through counsel. 1.17 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. 8 1.18 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. City will not do the following: (1) (2) (3) Withhold FICA from Consultant's payments or make FICA payments on its behalf; Make state and/or federal unemployment compensation contributions on Consultant's behalf; or Withhold state or federal income tax from any of Consultant's payments. If requested, City shall provide Consultant with a certificate from the Texas State Comptroller indicating that City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 1.19 INSURANCE Insurance: Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. Subconsultant Insurance: Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements: Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or any material change in coverage, a notice thereof shall be given to City by 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. 9 (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. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Consultant and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. Cost of Insurance: The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with City. 1.20 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES As this Agreement is a contract for public affairs consulting services, Consultant will strictly adhere to both the letter and spirit of all federal, state, and local lobbying laws. Consultant, its consultants, agents, employees and subcontractors shall comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to City at the expiration of the term of this Agreement. 1.21 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. 1.22 DESIGNATION OF REPRESENTATIVES City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: James R. Nuse, PE City Manager City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Carl Holshouser, Principal Capitol Partners, Inc. 1101 17th Street NW, Suite 202 Washington, DC 20036 10 1.23 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: Capitol Partners, Inc. 1101 17th Street NW, Suite 202 Washington, DC 20036 Notice to City: City Manager, City of Round Rock 221 East Main Street Round Rock, TX 78664 AND TO: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.24 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. 1.25 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 1.26 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall select one mediator and Consultant shall select one mediator and those two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. 11 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. 1.27 FORCE MAJEURE Notwithstanding any other provisions hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to City if its failure to perform or its substantial delay in performance is due to City's failure to timely provide requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 1.28 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.29 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 industry practices. 1.30 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing and signed by an authorized representative of the party against whom such waiver or discharge is sought to be enforced. This Agreement may be executed in multiple counterparts, which taken together shall be considered one original. City agrees to provide Consultant with one fully executed original. 12 IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate originals on the dates hereafter indicated. CITY OF ROUND ROCK, TEXAS CAPITOL PARTNERS, INC. By: /L/'-• MIMMILiSTRT- I� Printed Name: Path tvtk6.114W Title: Nto►Y Date Signed: Z . fZ •09 ATTEST: By: By: Printed N Title: Date Si 1. • uAcke Sara L. White, City Secretary FOR CITY, .• J• 'ROVED S TO FORM: Steph"1 L. Sheets, City Attorney By:Mt 10. Ilkeri e• • 13 EXHIBIT A Capitol Partners Proposal 14 Driven. Instinctive. Strategic. Tested. Personal. CAPITOL PARTNERS, INC. PUBLIC AFFAIRS PROPOSAL PREPARED FOR ROUND ROCK, TEXAS PURPOSE. PION. PROSPERITY. 1 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. Cindy Demers Assistant City Manager 221 East Main Street Round Rock, Texas 78664 January 14, 2009 Dear Cindy, I am very pleased to present you with our proposal for public affairs consulting services for the city of Round Rock. After learning more about your city, we are confident that the Lake Travis project makes Round Rock a prime candidate to receive federal funding in order to provide the city's population with a safe and stable water supply. We believe that our partnership will be instrumental in assisting Round Rock to receive the federal funding necessary for the city's continued growth and development. We are excited to get started working for you, and I look forward to a long and prosperous relationship to come. I enjoyed speaking with you yesterday. Please feel free to contact me directly if you have any questions about the proposal or if I may otherwise be of service to you. care, Jon than Orloff Pres dent Capitol Partners, Inc. 2 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. TABLE OF CONTENTS GENERAL INFORMATION TABLE OF CONTENTS 3 ABOUT CAPITOL PARTNERS 4 PROPOSAL ANALYSIS WASHINGTON OFFICE RECENT SUCCESSES KEY TASKS AND STRATEGY 5 6 7 8-9 OUR TEAM CAPITOL PARTNERS TEAM IO -12 CAPITOL PARTNERS ADVISORY BOARD 13-16 TERMS TERMS 17 3 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. ABOUT CAPITOL PARTNERS CAPITOL PARTNERS, INC., founded in 1999, is a full service, Washington, D.C. based government affairs consulting firm that provides effective counsel and strategic guidance to a host of clients, including: institutions of higher education, biotechnology companies, municipalities, public authorities, manufacturers, hospitals, museums, major businesses and not-for-profit organizations. We specialize in developing partnerships between our clients, Congress, and the federal government that result in substantial government funding and support. THE CAPITOL PARTNERS PHILOSOPHY Over the past nine years, Capitol Partners has successfully represented clients by adhering to a philosophy that helps distinguish us from our competitors and ensures a high level of service and success. First, our Principals directly service our clients. This means that a Principal of the firm is in direct contact with each client and takes full responsibility for achieving the client's goals. Capitol Partners is a task -oriented firm. We are most comfortable working on specific, well-defined objectives from start to finish, and projects that enhance the bottom line of our clients Capitol Partners' custom is to develop realistic goals in keeping with its clients' objectives and to work tirelessly to achieve them. Capitol Partners is able to avoid the numerous conflicts that plague larger firms by limiting the number of clients we service in any one geographic area. This ensures our ability to provide detailed, client -specific service when dealing with congressional offices. In that regard, we do not represent clients in the same congressional area which have similar goals. Capitol Partners maintains low overhead, thus enabling us to offer client services at reasonable rates. Capitol Partners is satisfied to have its compensation grow based on the record of success that is achieved for its clients. Capitol Partners targets clients in areas where our team has strong relationships in the business, political, and philanthropic communities, and leverages those relationships to the benefit of the client. 4 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. ANALYSIS Since meeting with you in early December, we have had the opportunity to consider the water project we discussed in the context of the availability of federal dollars. As you know, we have been engaged in securing federal funding for a great variety of projects over a 20 year period and have achieved considerable success. In that regard, we have come to the emphatic conclusion that the City of Round Rock is in an excellent position to develop significant federal resources for this project, and further, that the next few years should bring a number of opportunities to help fund and support other important aspects of the city's needs. There are several reasons why we have come to this conclusion: First, while the significant decline in economic outlook has resulted in contractions in local and state funding as you have no doubt read, Congress and the new President-elect are already crafting an extraordinary stimulus package which will make available considerable resources and in large part concentrate on infrastructure projects. In our view, based on the need for new water capacity, the jobs that will be created in the construction phase, and the cost sharing nature of the effort, this project should fit nicely into the intent and likely language of the stimulus legislation. In addition to this effort, there will be at least one and possibly two other available funding vehicles for the water project. The normal, annual appropriations bill (Energy and Water) routinely has water projects included and there is no reason that this won't be the case in this session of congress. The Transportation and Infrastructure reauthorization may also present opportunities if there are road related aspects of the project. Beyond this, we would recommend that Capitol Partners immediately conduct a thorough review of the city and all its needs so that we may develop additional appropriations requests for this session and in the future. This would include, for instance, any and all transportation related projects, police and security needs, and additional infrastructure efforts beyond the water project. It is not uncom- mon for a city to have more than one appropriations request and we strongly believe that Round Rock should pursue funding in a number of areas. 5 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. WASHINGTON OFFICE By working with Capitol Partners, Inc., you will virtually establish a Washington office with a wealth of institutional knowledge and important relationships on both sides of the aisle. Jonathan Orloff has decades of experience and relationships in Washington stemming from his time as Senator Kennedy's Legislative Assistant. His rapport with many key Democrats and their offices affords Capitol Partners, Inc. the ability to discuss projects in a convivial and comprehensive setting. Carl Holshouser complements these associations by virtue of his recent Capitol Hill experience and proficiency leading full-scale public affairs campaigns to the benefit of our clients. His knowledge of each congressional office's unique personality, special relationship with Senator Hutchison, strong relationships with Texas delegation members, and familiarity with the eccentricities of the legislative process will be a great asset to these efforts. Our other colleagues and advisory board members represent additional reach and capabilities and we draw on those resources as needed. 6 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. RECENT SUCCESSES CAPITOL PARTNERS, INC. is proud to have a strong record of ever-growing success in the Government Affairs industry. While this year's appropriations bills have not all cleared the President's desk, we are on track to have secured the most appropriations dollars in the history of our firm. Here are just a few examples of recent Capitol Partners successes on behalf of our clients: PEACE BRIDGE AUTHORITY Capitol Partners has successfully secured $25 million for the Peace Bridge Authority. BUFFALO LAKEFRONT DEVELOPMENT TEAM $17.46 Million in federal funding has been secured for the Buffalo Lakefront Development Team. BIOPURE $11 million was secured on behalf of Biopure. GENERAL ATOMICS Since 2003 Capitol Partners has successfully secured $6.5 million in federal funding for the Soldier Fuel Cell System, $6.8 million for their Waste -Energy program, and $7 million for the Biodiesel program.This brings the total amount of federal funding to over $20million. ALS THERAPY DEVELOPMENT INSTITUTE Capitol Partners has successfully secured over $3 million in federal funds. CAMBRIDGE REDEVELOPMENT AUTHORITY Capitol Partners has secured $2.3 million in federal funding for CRA's Kendall Square and Gateway projects. EMMANUEL COLLEGE Over $2 million in federal funding has been secured for Emmanuel College since FY 2002. This funding has been used to implement such programs as a math and science initiative and the construction of a Math and Sciences Center. HARTWICK COLLEGE With the assistance of Capitol Partners, Hartwick College was able to secure $750,000 in federal funding. ST. AGNES HOSPITAL $500,000 was secured for St. Agnes Hospital in Catonsville, MD within the energy and water bill under the Congressionally Directed Office of Science Projects. UNILAND DEVELOPMENT CORP. Capitol Partners worked with this NY -based developer to secure roughly $17 million in federal transportation funds for bridge access improvements for a site in western NY. 7 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. KEY TASKS AND STRATEGY To achieve our objectives there are a number of standard tasks that must be accomplished to ensure a legislative success. 1) At Capitol Partners, one Principal of the company serves as the day-to-day contact for each client. In this case, Carl Holshouser will serve in that role. 2) We would reestablish our relationship by meeting with you and your colleagues on site to determine exactly which projects to pursue (and in what order), and to become as familiar as pos- siblewith Round Rock's present needs and long-term goals. We would engage in targeted dialogue with city leadership to select our plans for this cycle. The Capitol Partners, Inc. team would continue to work with the city to develop a complete top -to -bottom working knowledge of its entire operation - allowing us to be articulate advocates for the project and to be able to be directly responsive to inquiries from our contacts in Congress. 3) A strong marketing document is critical for the success of any project. We bring our years of ex- perience to bare in tailoring your overall written goals in such a way as to fit the specific appropria- tions provisions that we are targeting. Our entire Public Affairs team will work to ensure that your marketing program reflects the strong merits of the project to best garner the support and approval of the United States Congress. The city's leadership will be intimately involved in the approval pro- cess for all marketing materials used to support our effort to secure federal funds. 4) Each congressional office has deadlines for submitting requests with the House and Senate subcommittees. Most of these deadlines fall in early spring. Furthermore, each member and each subcommittee has a different form; reflecting personal, cultural, political, and other differences. Navigating these forms is essential to establishing eligibility for funds, and we pride ourselves on the value of our experience in this regard. Our familiarity with the individual process in each congres- sional office is one of our greatest assets for success in the effort to secure federal funds. 5) As we submit forms, we meet personally with each of the pertinent staff members to ensure that we answer all questions and establish a personal relationship during the effort. We also have con- tinuing contact with staff of the pertinent appropriations and authorizing subcommittees to keep abreast of changing budget restrictions and ensure that our chosen strategy is sound. 6) Sometime in the spring, we will meet with your congressional delegation. We recognize that you know your delegation members well. Our role is in the nature of maximizing your interaction with them based on our experience. These are critical sessions and our practice is to put together interested stakeholders who, with our involvement, best articulate our proposal. We will develop a thorough strategy for these meetings, and often we will recommend a full mock -session to prepare to use the short period granted by the elected official to its maximum effect. Local leaders, pertinent business groups, and city leadership will be involved in these meetings. 8 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. KEY TASKS AND STRATEGY 7) Sometime in mid-to-late spring (or even summer), the committees will begin the process of marking up a bill. As you may know, Congress will effectively put together a draft bill laying out the specific goals of the legislation and attaching dollar figures to each provision. This is crunch time, particularly in this legislative session. We will work daily to keep Round Rock's request a top priority for your legislators and their staffs during this critical process. 8) Inevitably, as the session proceeds there will be modifications and adjustments made to the legislation. These may affect our project. We will steadily work on behalf of Round Rock to advance the goals and projects through the committee processes. 9) At some point during the late summer or fall, or perhaps earlier, we may ask you to return to Washington to demonstrate your continuing focus and interest in our effort. We will meet the members and staff once again to further reinforce the importance of the project and update them of any pertinent developments. Indeed, throughout the session, we must collectively look for opportunities to highlight the importance of our request. 10) Finally, once the pertinent legislation is signed into law, we will work with the appropriate federal agency to ensure that the provision in which we are interested is properly implemented and funds are released in a timely manner. Our team is not satisfied until the entire project is completed to the satisfaction of our client. 9 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. CAPITOL PARTNERS INC. TEAM JONATHAN M. ORLOFF, PRESIDENT JONATHAN M. ORLOFF is the President of Capitol Partners, Inc., a company which he founded in 1999. Mr. Orloff has over twenty-five years of professional experience in federal public policy and legislative affairs. Mr. Orloff's Capitol Hill experience was under the chairmanship or personal offices of Senator Kennedy. In that regard, he served as professional staff of the U.S. Senate Judiciary Subcommittee on Antitrust and Monopolies and the full Senate Judiciary Committee,where he helped develop antitrust policy, deregulation initiatives and new procedures for the confirmation of federal judges. Mr. Orloff subsequently served in Senator Kennedy's campaign for President in 1980, specifically as coordinator for New England issues, and then as State Campaign Manager for North Carolina. Starting in late 1980 and for the next six years, Mr. Orloff also served as a Legislative Assistant and senior staff member to Senator Kennedy. In that position he was responsible for all appropriations legislation and the development of legislation and initiatives in the areas of economic development, transportation, environment, agriculture, banking and trade. During this period and since, he has had the occasion to be associated with a number of members who are now in position of leadership, including Senators Harkin, Mikulski, Murray, Lautenberg, Johnson and Reed to name a few. In the House, Mr. Orloff has been privileged to work closely with a number of now very senior members of the body. In 1986, Mr. Orloff joined Cassidy and Associates as the fourth principal and was critical in the expansion and development of the firm for the next ten years. In addition to appropriations work, Mr. Orloff has provided strategic counsel to state agencies, developers, colleges and universities, hospitals, and a wide range of companies from various industries,includingdefense,healthcare,hightechnology,transportation,energyandrealestate development. Throughout his career in public affairs, Mr. Orloff has been active in national Democratic politics. He served on the National Finance Council of the Democratic Senate Campaign Committee and the board of the Fund for a Democratic Majority. He has served on the finance councils of numerous members ofthe Senate and House and continues to provide advice and counsel on a regular basis. Mr. Orloff graduated from Georgetown University in 1977, and received his Juris Doctor from The Columbus School of Law at Catholic University in 1983. 10 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. CAPITOL PARTNERS, INC. TEAM HE HONORABLE NORMAN D'AMOURS ORM D'AMOURS served 10 years in the US House of Representatives (1975 to 1985) and was a ember of the House Banking Committee (now the Committee on Financial Services) and hairman of the Oceanography subcommittee of the Merchant Marine and Fisheries Committee. fter retiring from Congress he returned to his home in Manchester, New Hampshire to join the aw firm of McLane, Graf, Raulerson and Middleton. In November 1993, Congressman D'Amours as unanimously confirmed by the US Senate as a board member of the National Credit Union dministration (NCUA), the regulator and insurer of some 11,000 state and ederal credit unions with assets of over $400 billion at that time. He was designated Chairman of the hree-member NCUA board and served in that capacity for seven years, until January 2000. He has estified often regarding banking and other issues before the US Senate and House of Representatives nd is frequently a speaker at financial conferences. ARL HOLSHOUSER, PRINCIPAL ARL HOLSHOUSER provides a comprehensive knowledge of the legislative process and strong elationships with key members of Congress. Until recently, Mr. Holshouser served as Special ssistant to Senator Kay Bailey Hutchison (R -TX). In this role, he staffed Senator Hutchison for 11 official appointments, hearings, interviews, and accompanied her to the Senate floor for all votes. e briefed the Senator in preparation for media appearances, cabinet -level department meetings, nd frequent appointments at the White House. Carl served as a Liaison in her 2006 reelection campaign and toured the state with Senator Hutchison working as an on-site event coordinator and Travel Aide. Senator Hutchison is a senior member of the Appropriations committee, and Carl's relationship with her office is a tremendous asset to Capitol Partners' client base. Prior to his work in the Senate, Carl served in a number of high profile Texas offices, including the Executive Office of the Attorney General of Texas and the Washington Office of Congressman Lamar Smith. 11 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. CAPITOL PARTNERS INC. TEAM YA MAHONEY, SENIOR ASSOCIATE AYA MAHONEY has worked at Capitol Partners' for 2 years. She joined Capitol Partners in July 006 as an Executive Associate and became a Senior Associate in August 2008. With her 2 years of obbying and consulting experience she has developed relationships on the Hill and has gained a omprehensive knowledge and understanding of the legislative and appropriations process. rior to her work at Capitol Partners, Maya lived in Cairo, Egypt and worked at the U.S. Embassy n the Ambassador and Deputy Chief of Missions Front Office, the Office of Military Cooperation ffice and the Community Liaison Office. he is a 2005 graduate of Southern Methodist University in Dallas, Texas where she studied roadcast Journalism and Political Science. During her college career, she interned at the CBS ffiliate in Dallas and was involved in numerous organizations, including the Orientation Leadership nstitute, National Collegiate Scholars, and her sorority, Gamma Phi Beta. AURA JONES, EXECUTIVE ASSOCIATE AURA JONES is Capitol Partners' Executive Associate/IT Specialist. She officially joined the Capitol artners' team in August 2008 after interning with the firm for a year. She holds a Bachelor's degree from the University of Maryland, Baltimore County and a Masters degree in International Relations and European Studies from Central European University in Budapest. Laura has several years experience researching European Union policy issues and working with NGOs and non -profits. She speaks Russian, Spanish, Czech and Hungarian. 12 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. CAPITOL PARTNERS, INC. ADVISORY BOARD TER G. MIRIJANIAN ETER MIRIJANIAN is part of Capitol Partners Advisory Board. Before starting his own firm, irijanian was a founding principal and Vice President of the DCS Group where he irected and implemented crisis and litigation communications efforts, with a primary focus on national edia, on behalf of corporate clients and law firms on a variety of high profile topics, including class action uits, proposed corporate mergers, international trade disputes, casino gaming and public health issues. tilizing decade-long relationships with the national press corps, he initiated and managed the edia coverage and editorials that have appeared in national outlets, including The Washington Post, ew York Times, Wall Street Journal, along with the broadcast networks. He has also devised and xecuted media tours, editorial board meetings and talk radio campaigns for clients in markets cross the country. irijanian also managed the media inquiries and served as spokesperson for attorney Jack Quinn ho represented Marc Rich in his pardon appeal to former President Clinton. He is a crisis ommunications commentator in national publications, and for NBC's Today Show, The FOX NEWS hannel, MSNBC's "Hardball with Chris Matthews", and CNBC's Power Lunch and Morning Call. e also worked as a political media consultant, was Northeast Regional Coordinator for People for he American Way, the non-profit constitutional liberties organization, and, in 1984, was a press aide n the office of Senator Edward M. Kennedy. DAVID WHITMORE, ESQ. DAVID WHITMORE is another Advisory Board member. He brings over two decades of diverse Chief Operations Officer/Chief Financial Officer experience to boards, executives and senior management requiring expert assistance in mergers and acquisitions, financial strategy, and in managing the resources that drive organizational performance. David was Executive Vice President, Chief Financial Officer, Chief Operating Officer and General Counsel of Qorvis Communications, a rapid -growth public relations firm that counts among its clients the Kingdom of Saudi Arabia. David was Executive Vice President, Chief Financial Officer and member of the Board of Directors of Shandwick Washington/The Cassidy Companies, the Washington, D.C. branch of Weber/Shandwick Worldwide, one of the world's leading public relations firms and a subsidiary of the Interpublic Group of Companies, a global advertising and communications holding company. David has served as a senior executive in a number of other entrepreneurial firms, where his proven skills, practiced counsel and adroit trouble -shooting have been instrumental to corporate growth and success. 13 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. CAPITOL PARTNERS, INC. ADVISORY BOARD STUART SPENCER STUART SPENCER brings over a decade of political and policy experience at the most senior levels on behalf of his clients. Prior to entering the private sector in 2003, Spencer served as Staff Director to the Committee on Rules, Subcommittee on Legislative Process, as well as Chief of Staff to current Rules chair Louise Slaughter (D -NY). As part of the Democratic Leadership team, Mr. Spencer worked with staff from all House committees to craft the Democratic agenda during floor debate, advocating priorities and devising procedural strategies to ensure full consideration of their positions. As Chief of Staff, Mr. Spencer acted as senior advisor and strategist on policy, communications and political issues while overseeing Washington, D.C. and New York staff and operations. Prior to his becoming Chief of Staff, Spencer served as Rep. Slaughter's legislative counsel for the House Government Reform and Oversight Committee during the investigations of Executive branch actions regarding federal law enforcement operations at Waco, White House -FBI interaction, and White House database inquiries. Spencer launched his political career upon graduation from law school by assisting the Director for Global Environmental Affairs at the White House Council on Environmental Quality. In this capacity,he helped coordinate responses to the Administration's environmental initiatives. While in law school, Mr. Spencer clerked for the SenateBudgetCommitteeaswellastheWashingtonlawfirmofCutler&Stanfield. Mr. Spencer received his B.A. from Princeton University, and graduated cum laude from Tulane Law School in May 1995 serving as Editor -in -Chief of the Tulane Environmental Law Journal. A native of San Antonio, Texas, Mr. Spencer is also a Member of the Texas Bar. 14 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. CAPITOL PARTNERS, INC. ADVISORY BOARD JAMES A. ROWAN, JR. JAMES ROWAN is a Managing Director of Stifel, Nicolaus & Company, Incorporated, a full service investment banking firm (formerly Legg Mason Capital Markets.) Stifel Nicolaus provides investment advisory, securities brokerage, mortgage banking, and corporate and public finance services to individuals, corporations, institutions and municipalities. He directs the corporate finance practice on education and training, and has done so since 1995, when he conceived, initiated and executed a plan to develop a significant role for Legg Mason investment banking in the proprietary education and training industries. Since then, the Education Banking Group has represented numerous clients, including: Laureate Educate, Inc., S trayer Education,The Princeton Review, Capella Education, Educate, Career Education Corp., Whitman Education and Nobel Learning Communities. These include initial public offerings, pricate placements, merger/acquisition advisory, valuations and fairness opinions. Within the field of education, Stifel Nicolaus is recognized today as one of the leading investment banking firms in the United States. Immediately prior to Legg Mason and Stifel Nicolaus, Rowan was a venture capitalist for six years. Prior to that, he was a senior financial executive at ITT Corporation and City Investing Company. A graduate of The Lawrenceville School, he received a B.A. in Economics from Cornell University and an M.B.A. in Finances from the Johnson School of Management at Cornell. Jim resides in Chevy Chase, MD with spouse Emily Train Roway and daughters Emily and Aileen. He has taught part-time at the college level and served on the Advisory Board of the University of Baltimore. He is currently chairman of the board of ConservAmerica and is on the Financial Advisory Council of the Career College Association. He remains active in alumni affairs at Lawrenceville and Cornell. JOHN STILES JOHN STILES brings a varied experience to the team. He began his career after college with Bechtel Power building nuclear power plants and left as a senior field engineer to enter law school. Mr. Stiles spent 13 years in private law practice concentrating in transactional real estate and construction disputes. He left the private practice of law to form a specialized company for the installation and repair of detention and control equipment in city, county, state, and federal detention facilities. His company completed two 2250 bed prison facilities in Texas, along with other smaller facilities in and out of Texas. For the last 15 years, Mr. Stiles has been a consultant to small and medium sized companies and high net worth individuals on a wide range of issues. He has created a business of identifying problems and issues, identifying and hiring the proper people for the solution, and managing the issue resolution. 15 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. APITOL ' ARTNERS, NC. ' P VISORY BOARD THE HONORABLE MIKE KRUSEE MIKE KRUSEE, a member of the Texas House of Representatives, was first elected as the Representative for Williamson County in 1992, and re-elected seven times. He was awarded the chairmanship of the House Transportation Committee in 2003 and is also a member of the Judiciary Committee. Chairman Krusee also served as the Transportation Chair of the National Conference of State Legislators and currently serves on the National Surface Transportation Infrastructure Financing Commission in Washington, D.C. Chairman Krusee has been recognized as one of the nation's leading architects of innovative solutions to transportation funding and policy matters. During the 2003 Legislative Session, Chairman Krusee authored House Bill 3588. This landmark legislation has been described as the most comprehensive and visionary state transportation legislation in modern history. HB 3588 put Texas and Chairman Krusee at the forefront of a national movement to employ innovative project delivery and financial tools to resolve mobility concerns. As a result, Chairman Krusee has met with leaders from Louisiana, Florida, Utah, Pennsylvania, Missouri, Minnesota, Wisconsin, California and many others to describe Texas' unique approach to transportation legislation. As a prominent regional and state leader, Chairman Krusee is also active on many issues related to the rapid population growth of Texas. He is a member of the Executive Council of the region's Metropolitan Planning Organization (CAMPO), which is charged with prioritizing regional transportation needs. Currently, Chairman Krusee is also in the foreground of a coalition of non-partisan community leaders dedicated to bringing a comprehensive transit system to the central Texas area. Nationally, Chairman Krusee has been recognized as a leader in the connection between land use and transportation through his appointment to the board of The Congress for the New Urbanism. 16 Delivery. Partnership. Trust. Results. Driven. Instinctive. Strategic. Tested. Personal. TERMS Capitol Partners, Inc. bills on a retainer basis, invoiced monthly in advance. For the services described above, we propose a monthly retainer beginning January 15th, 2009 for a period of one year at a rate of $8,000 a month, with the expectation of renewal at the end of one year if the City of Round Rock is satisfied with our efforts. Capitol Partners charges a 2.5% monthly administrative fee for incidental costs such as faxes, mail, phone calls, etc. We also charge for modest, but necessary expenses and fees (to be pre -approved by the client on request) including travel. this contract is an agreement for public affairs consulting services between Capitol Partners Inc. and the City of Round Rock. Capitol Partners, Inc. will strictly adhere to both the letter and spirit of all federal, state, and local lobbying laws. If this proposal meets with your expectations, please sign two copies, keep one for your records, and return one to me. Jon than M. Orloff Pre ident Ca itol Partners, Inc. Alan McGraw Mayor City of Round Rock 17 Delivery. Partnership. Trust. Results.