R-06-05-25-11C1 - 5/25/2006RESOLUTION NO. R -06-05-25-11C1
WHEREAS, the City of Round Rock desires to retain professional
consulting services for an Event Facilities Assessment, and
WHEREAS, Economic Research Associates has submitted an Agreement
for Professional Consulting Services for Event Facilities Assessment to
provide said services, and
WHEREAS, the City Council desires to enter into said agreement
with Economic Research Associates, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Agreement for Professional Consulting Services
for Event Facilities Assessment with Economic Research Associates, a
copy of same being attached hereto as Exhibit "A" and incorporated
herein for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended
RESOLVED this 25th day of May, 2006
AT E T:
NY
C
CHRISTINE R. MARTINEZ, City Secrary
@PFDesktop\ ODMA/WORLDOX/O:/WDOX/RESOLUTI/R60525C1.WPD/Sc
L, ayor
of Round Rock, Texas
C1'1'Y OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES FOR
EVENT FACILITIES ASSESSMENT WITH
ECONOMICS RESEARCH ASSOCIATES (ERA)
THIS AGREEMENT for professional consulting services relating to the City of Round
Rock's potential construction and operation of an event facility (the "Agreement") is made by
and between the City of Round Rock, a Texas home -rule municipal corporation, with offices
located at 221 East Main Street, Round Rock, Texas 78664-5299, (the "City") and Economics
Research Associates (ERA) (the "Consultant"), with offices located at 388 Market Street, Suite
1580, San Francisco, California 94111.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than one (1) year from the effective date of this
Agreement.
City reserves the right to review the Agreement at any time, including at the end of any
deliverable or phase or task, and may elect to terminate the Agreement with or without cause or
may elect to continue.
1.02 CONTRACT AMOUNT
In consideration for the professional consulting services to be performed by Consultant,
City agrees to pay Consultant a total sum not to exceed Seventy Thousand and No/100 Dollars
($70,000.00), in payment for Phase I services and the Phase I Scope of Work deliverables as
00099660/jkg
EXHIBIT
A
delineated in Section 1.03. This amount does not include expenses which otherwise are
reimbursable under this Agreement as delineated in Section 1.04.
1.03 SCOPE OF WORK
ERA shall analyze alternative concepts for a major new facility that could be developed
in Round Rock. ERA acknowledges its understanding that a variety of conversations have been
taking place in Round Rock regarding various types of new facilities that could be developed to
house events, thereby adding to the quality of life and advancing economic development goals of
the City. At least five different concepts have been discussed, including:
(1) Performing Arts Center - including one or more fixed -seat theaters;
(2) Civic Center - housing wedding receptions, banquets, and other local community
functions;
(3) Convention Center - including significant flat floor exhibition hall space as well
as breakout spaces for meetings;
(4) Conference Center - focusing more on meetings and less on exhibit space; and
(5) Special Events Center - composed primarily of a large flat floor flexible "box"
that could be used for consumer shows, small sporting events, and exhibits.
ERA acknowledges that one mulii-purpose facility might be able to meet more than one category
of needs, and other blends of concepts between the five described categories could be envisioned.
ERA shall analyze the tradeoffs between the listed possible facilities, and assist in working
through a decision-making process when moving towards development. ERA shall assist the City and its
broader community with selecting the most advantageous type of facility.
ERA shall divide its consulting work into two phases, those being Phase 1 and proposed Phase II.
Phase 1 requires that ERA conduct an overview level of research into all five of the listed concepts.
Phase II, if and when contracted for by the City, would require ERA to conduct a more detailed analysis
of a preferred concept.
Phase I Scope of Work: Comparison of Five Listed Concepts
(1) Initial Meetings. During an initial trip, the two senior ERA staff on the project will
spend two to three days in Round Rock. ERA will meet with the City staff, as well as meet
with other Round Rock community leaders and interest groups, as appropriate. ERA shall
also spend sufficient time touring Round Rock and surrounding central Texas areas to
gain a solid understanding of the environment.
(2) Initial Feedback. During the initial trip, ERA staff shall discuss goals and expectations
for facility performance. After return to ERA's offices, ERA shall draft a memorandum
documenting ERA's understanding of the goals and objectives. After review by the City,
this written statement will help focus and guide later research and analysis tasks.
For each of the five concepts, as further refined with input from the City, at least an overview
level of research and analysis shall be conducted. More detailed feasibility -level analysis may be
conducted on a preferred concept once it has been selected. At the overview -level, the
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mechanisms through which financial and economic impacts may be felt by the Round Rock
community shall be understood, and the typical operating profiles of the different facilities shall
be described. Quantification of many factors will likely remain in ranges or "high, medium, and
low" characterizations for evaluation purposes. Tasks in this set include:
(3) Indicators of Demand. Develop overview of indicators of demand for each facility (e.g.,
some facility concepts, such as performing arts and consumer shows, depend mostly on
local market patronage and future growth, while others, such as conventions and
tradeshows, depend on state and national trends in meeting groups).
(4) Review of Competitors. Identify the locations and review the characteristics of facilities
in the Austin/Round Rock metropolitan area that could create competition for each of the
considered concepts. Much of this information shall be gathered in a second trip to the
Round Rock area by ERA's research and analysis staff. This trip also affords another
opportunity for ERA to meet with the City, and other community leaders who might not
have been available during the first trip.
Comparable Facilities Review. Identify and review the characteristics of comparable
facilities in other areas that are worthy of being emulated.
(6) Identify Typical Characteristics. For each facility concept, there are national norms and
typical patterns of funding, development, management and operations. ERA shall
describe the patterns for each.
(5)
(7)
Describe Typical Financial Profile. Describe typical patterns of financial performance
for each facility type, e.g., ability to cover operating costs with operating revenues,
ability to contribute to debt service out of earned income.
(8) Economic and Fiscal Impacts. Describe mechanisms through which the facility concept
can impact the City fiscally and the community at large economically. Quantify these
mechanisms at least to the extent that they can be ranked on each measure.
Discuss Desirable Site Characteristics. The different facilities have different sources of
market support, and thus will have differences in location and site requirements. In
general terms, desirable locations and potentially available sites may be discussed.
Armed with enough research into alternative facility types, ERA shall then compare all concepts
side by side. Tasks leading to selection of an alternative preferred by the City and the Round
Rock community include:
(9)
(10) Decision Matrix. ERA shall develop a decision matrix including criteria such as ability
to pay operating costs, ability to contribute to debt service, service to community needs,
ability to generate jobs and other positive economic impacts, potential for private
partnering in development or operations, ability to attract philanthropic support, and
other considerations that emerge from the goals and objectives discussions of the study.
(11) Evaluate Concepts Using Goals and Objectives. ERA shall describe pros and cons of
each facility concept, and compare and contrast the elements of the decision matrix in a
narrative format.
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(12) Specifically Characterize Financial Issues. Understanding that financial, fiscal, and
economic impact criteria are especially important to project feasibility and long-term
sustainability, ERA shall specifically highlight cost, funding, and economic impact issues
in the evaluation.
(13) Meet to Discuss Draft. As directed by the City, key ERA staff shall meet with steering
committee, City staff, and/or Council to discuss alternatives.
(14) Reporting. A draft report shall be written as the research, analysis, and comparisons are
conducted and completed. The draft report shall be derived from all preliminary studies
necessary to the performance of the Scope of Work, and shall be delivered to the City to
be appropriately considered, clarified, and possibly revised. The draft report, and any
final report derived therefrom and from performance of the entire Scope of Work, shall
be a concise and thorough evaluation and shall provide the City with the necessary data
and analysis to determine the appropriate course of action. The draft report shall be
e-mailed to the client group in advance of the meeting delineated in Subsection (13)
immediately above. Within two weeks of having received written comments from the
client group, ERA shall prepare a final version of the written report per requirements
delineated in Section 1.07 herein.
(1 S) (Optional) Phase I Presentation. In many cases, a presentation and discussion of the
draft report followed up by a final written product is sufficient to conclude this type of
project. In others, it is helpful to bring consultants back for one or more presentations to
other decision-making bodies or other community groups. At the direction of the City,
ERA shall remain available to make one or more presentations of the results of the
analysis to community leaders, decision-making bodies, and/or community groups.
Phase I Scope of Work: Schedule
The Phase I study is estimated by ERA to take six to eight weeks to conduct. Given that elements
of this study will likely be conducted during the summer vacation season, adequate time for
community involvement and collection of information may take longer.
Between the Phase I and, if contracted for by the City, Phase II, there may be a hiatus for ERA as
different community groups are presented with the results of the comparative analysis and
consider their options. In some cases, consultant assistance with presentations or facilitation of
this process can be helpful.
Once a preferred concept is identified, ERA estimates that a more detailed feasibility study may
take four to six weeks.
(Optional) Phase II Anticipated Scope of Work: Analysis of the Preferred Concept
The steps to take in preparing a more detailed feasibility study of major public assembly facilities
vary significantly by the type of facility. Therefore, it is not possible for ERA to prepare a firm
Scope of Work and fee for Phase 11 until the City and the broader Round Rock community has
had an opportunity to work through Phase I with consulting assistance. However, ERA is able at
this time to provide a delineation of the likely steps that would need to be taken in providing a
detailed analysis of the preferred concept, should the City later contract with ERA to do so:
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(1) Interview or survey a sample of potential end-users of the facility;
(2) Interview management of competitive facilities in the Austin/Round Rock metropolitan
area;
(3) Conduct detailed case studies of comparable facilities in other areas that share one or
more significant characteristics with the preferred Round Rock concept;
(4) Identify sources of funding that are appropriate for the concept;
(5)
Explore the potential for partnering with private corporations, non-profit organizations,
or other public agencies in developing or operating the facility;
(6) Review possible sites in Round Rock, and estimate likely scenarios and costs for
acquisition;
(7)
Recommend a business model for owning, operating, managing and marketing the
facility;
(8) Estimate the staff requirements to achieve operational goals;
(9) Project a financial pro forma of operations, from development through stabilized
occupancy;
(10) Estimate facility development costs on a basic per -square -foot basis;
(11) Project a financial pro forma for development;
(12) Estimate the extent to which the facility will serve as a tourism draw, thereby serving as
an economic engine for Round Rock;
(13) Estimate the direct, indirect, and induced economic impacts in terms of jobs, gross
economic output and personal income created by ongoing operations, using an input-
output multiplier system such as the U.S. government's RIMS II system;
(14) Estimate the net fiscal burden or benefit to the City of Round Rock;
(15) Prepare a written report; and
(16) Present results of the analysis to community leaders.
(Optional) Phase II Scope of Work: Schedule and Fee
Key ERA staff shall remain available to make presentations and participate in community
meetings after the conclusion of the Phase I work. Once the range of concepts has been narrowed
down to one, and building on the work completed in Phase I, a more detailed feasibility study of
the type partially described in the Phase II Scope of Work outlined above may be completed and
agreed to by both the City and ERA. Such detailed feasibility study is estimated by ERA to take
four to six weeks, and may be completed for $20,000.00 to $40,000.00 dependent upon which
concept is being analyzed and how deep it is necessary to go into the user survey task.
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For purposes of this Agreement, Consultant has issued its Scope of Work for the
assignments delineated herein, and such Scope of Work is recited herein. This Agreement shall
evidence the entire understanding and agreement between the parties and shall supersede any
prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services and deliverables described under the
referenced Scope of Work within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for the City and/or advising the City
concerning those matters on which Consultant has been specifically engaged. Consultant shall
perform its services in accordance with this Agreement and in accordance with the referenced
Scope of Work. Consultant shall perform its services in a professional and workmanlike manner.
Consultant shall not undertake work that is beyond the Scope of Work set forth in Section
1.03. However, either party may make written requests for changes to the Scope of Work. To be
effective, a change to the Scope of Work must be negotiated and agreed to in all relevant details,
and must be embodied in a valid Supplemental Agreement as described in Section 1.05 hereof.
1.04 PAYMENT FOR SERVICES; REEVIBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, the City agrees to pay Consultant the following "Payment for Services:"
Fees for the listed deliverables in the total amount of Seventy Thousand and No/100
Dollars ($70,000.00) shall be paid by the City in the following manner:
(1)
Upon delivery of the memorandum required in Section 1.03 under "Phase
I Scope of Work: Comparison of Five Listed Concepts," Subsection (2)
entitled "Initial Feedback," the City shall be invoiced by Consultant and
the City shall thereupon make an initial payment of twenty-five percent
(25%) of the total "Payment for Services;"
(2) Upon delivery of the Draft Report, the City shall be invoiced by
Consultant and the City shall thereupon make a progress payment of
thirty-seven and one-half percent (37-1/2%) of the total "Payment for
Services;"
(3)
Upon delivery of the Final Report, the City shall be invoiced by
Consultant and the City shall thereupon make a final payment of the
remaining thirty-seven and one-half percent (37-1/2%) of the total
"Payment for Services."
Payment for Reimbursable Expenses: Reimbursable expenses authorized by the City
shall be paid to Consultant at actual cost, upon Consultant properly invoicing for same and
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providing documentation for same. Such reimbursable expenses for Phase I shall not exceed the
total amount of Five Thousand and No/100 Dollars ($5,000.00).
Not -to -Exceed Total Payment for Services: Unless subsequently changed by
Supplemental Agreement to this Agreement, Consultant's total compensation for consulting
services hereunder shall not exceed Seventy Thousand and No/100 Dollars ($70,000.00). This
amount represents the absolute limit of the City's liability to Consultant hereunder unless same
shall be changed by additional Supplemental Agreement, and the City shall pay, strictly within
the confines of the not -to -exceed sum recited herein, Consultant's professional fees for work
done on behalf of the City.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions: No additions shall be made to Consultant's compensation based upon project
claims, whether paid by the City or denied.
1.05 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if the City determines that there
has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
the City shall not be responsible for actions by Consultant nor for any costs incurred by
Consultant relating to additional work not directly authorized by Supplemental Agreement.
1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment following delivery of all deliverables, Consultant shall
prepare and submit detailed progress invoices to the City, in accordance with the delineation
contained herein, for services rendered. Such invoices for professional services shall track the
referenced Scope of Work, and shall detail the services performed, along with documentation for
each service performed. Payment to Consultant shall be made on the basis of the invoices
submitted by Consultant and approved by the City. Such invoices shall conform to the schedule
of services and costs in connection therewith.
Should additional backup material be
deliverables, Consultant shall comply promptly.
necessary, Consultant shall make all records and
the City for inspection and auditing purposes.
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requested by the City relative to service
In this regard, should the City determine it
books relating to this Agreement available to
Payment of Invoices: The City reserves the right to correct any error that may be
discovered in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of an invoice, the City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 1.10 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and the City or because of amounts which the City has a right to withhold under this Agreement
or state law. The City shall be responsible for any sales, gross receipts or similar taxes
applicable to the services, but not for taxes based upon Consultant's net income.
1.07 REQUIRED DRAFT REPORT AND FINAL REPORT
Consultant agrees to provide the City with a draft report and a detailed final written
report, together with all information gathered and materials developed during the course of the
project. Additionally, Consultant agrees to provide the City with any necessary oral
presentations of such written reports, at the City's designation and at no additional cost to the
City.
Consultant agrees to provide the City with ten (10) additional bound copies of the final
written report, with one (1) additional unbound copy being delivered which is suitable for the
City to make additional copies at the sole election of the City. All copies of the written final
report will be on 8-1/2" x 11" or 8-1/2" x 17" paper, will be primarily in black and white, will be
spiral bound, and will contain color pages, images, photos, and diagrams as necessary.
Consultant shall also deliver two (2) reproducible CDs to the City, all at no additional cost to the
City.
1.08 MUTATION TO SCOPE OF WORK
Consultant and the City agree that the scope of services to be performed is enumerated in
Section 1.03 herein, and may not be changed without the express written agreement of the
parties. Notwithstanding anything herein to the contrary, the parties agree that the City retains
absolute discretion and authority for all funding decisions, such to be based solely on criteria
accepted by the City which may be influenced by but not be dependent on Consultant's work.
1.09 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of the City's current revenues only. It is understood and
agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal
year if the governing body of the City does not appropriate funds sufficient to purchase the
services as determined by the City's budget for the fiscal year in question. The City may effect
such termination by giving Consultant a written notice of termination at the end of its then
current fiscal year.
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1.10 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which the City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the
day on which the performance of services was complete, or within thirty (30) days of the day on
which the City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee of one percent (1%) for payments not made
in accordance with this prompt payment policy; however, this policy does not apply to payments
made by the City in the event:
(1) There is a bona fide dispute between the City and Consultant concerning the
supplies, materials, or equipment delivered or the services performed which
causes the payment to be late; or
(2) The terms of a federal contract, grant, regulation, or statute prevent the City from
making a timely payment with federal funds; or
(3)
There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
(4) Invoices are not mailed to the City in strict accordance with instructions, if any,
on the purchase order or the Agreement or other such contractual agreement.
1.11 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that the City may terminate this
Agreement for the convenience of the City, upon fifteen (15) days' written notice to Consultant,
with the understanding that immediately upon receipt of said notice all work being performed
under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily
completed and shall be compensated in accordance with the terms hereof for work accomplished
prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related to this project shall become the
property of the City upon termination of this Agreement, and shall be promptly delivered to the
City in a reasonably organized form without restriction on future use. Should the City
subsequently contract with a new consultant for continuation of service on the project,
Consultant shall cooperate in providing information.
Termination of this Agreement shall extinguish all rights, duties, and obligations of the
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.
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Nothing contained in this section shall require the City to pay for any work which is
unsatisfactory as determined by the City or which is not submitted in compliance with the terms
of this Agreement.
Default: The City may terminate this Agreement, in whole or in part, for default if the
City provides Consultant with written notice of such default and Consultant fails to cure such
default to the satisfaction of the City within ten (10) business days of receipt of such notice (or a
greater time if permitted by the City).
If Consultant defaults in performance of this Agreement and if the City terminates this
Agreement for such default, then the City shall give consideration to the actual costs incurred by
Consultant in performing the work to the date of default. The cost of the work that is useable to
the City, the cost to the City of employing another firm to complete the useable work, and other
factors will affect the value to the City of the work performed at the time of default. Consultant
shall not be entitled to any lost or anticipated profits for work terminated for default hereunder.
The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of the City and the terminated party to fulfill contractual obligations. Termination
under this section shall not relieve the terminated party of any obligations or liabilities which
occurred prior to termination.
Nothing contained in this section shall require the City to pay for any work with is
unsatisfactory as determined by the City, or which is not submitted in compliance with the terms
of this Agreement.
1.12 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and the City agree to the following rights
consistent with an independent contractor relationship:
(1) Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and the City shall not hire, supervise, or pay assistants to help
Consultant.
(3)
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(5) Neither Consultant nor its employees or subcontractors shall receive training from
the City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of the City.
(7)
1.13 NON -SOLICITATION
Except as may be otherwise agreed in writing, during the term of this Agreement and for
twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or shall
employ any person employed then or within the preceding twelve (12) months by the other or
any affiliate of the other if such person was involved, directly or indirectly, in the performance of
this Agreement. This provision shall not prohibit the hiring of any person who was solicited
solely through a newspaper advertisement or other general solicitation.
1.14 CITY'S RESPONSIBILITES
Full information: The City shall provide full information regarding project requirements.
The City shall have the responsibility of providing Consultant with such documentation and
information as is reasonably required to enable Consultant to provide the services called for. The
City shall cause its employees and any third parties who are otherwise assisting, advising or
representing the City to cooperate on a timely basis with Consultant in the provision of its
services. Consultant may rely upon written information provided by the City and its employees
and agents as accurate and complete. Consultant may rely upon any written directives provided
by the City or its designated representative concerning provision of services.
Required materials: Consultant's performance requires receipt of all requested
information reasonably necessary to provision of services. The City shall furnish information
which includes but is not limited to access to the property, preliminary information and/or data
regarding the site and surrounding property (if applicable), pertinent correspondence with other
local municipal and planning officials, previous market analyses or feasibility studies, and other
pertinent information. Consultant agrees, within ten (10) days of the effective date of this
Agreement, to provide the City with a comprehensive and detailed information request list.
1.15 CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by the City for use by Consultant
in connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any
proprietary or confidential information relative to this Agreement, and to not make any use
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thereof other than for the performance of this Agreement, provided that no claim may be made
for any failure to protect information that occurs more than three (3) years after the end of this
Agreement.
The parties recognize and understand that the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
All data relating specifically to the City's business and any other information which
reasonably should be understood to be confidential to City is confidential information of City.
Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries,
inventions, know-how, and any other information which reasonably should be understood to be
confidential to Consultant is confidential information of Consultant. The City's confidential
information and Consultant's confidential information is collectively referred to as "Confidential
Information." Each party shall use Confidential Information of the other party only in
furtherance of the purposes of this Agreement and shall not disclose such Confidential
Information to any third party without the other party's prior written consent, which consent
shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the
confidentiality of the other party's Confidential Information and to advise their employees of the
confidential nature of the Confidential Information and of the prohibitions herein.
Notwithstanding anything to the contrary contained herein, neither party shall be
obligated to treat as confidential any information disclosed by the other party (the "Disclosing
Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is released by the Disclosing Party to any other person or entity (including
governmental agencies) without restriction; (3) is independently developed by the recipient
without any reliance on Confidential Information; or (4) is or later becomes publicly available
without violation of this Agreement or may be lawfully obtained by a party from any non-party.
Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information
of the other to a third party as may be required by law, statute, rule or regulation, including
subpoena or other similar form of process, provided that (without breaching any legal or
regulatory requirement) the party to whom the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein
shall preclude or limit Consultant from providing similar services for other clients.
Neither the City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered to the City under the terms of this Agreement (the "Deliverables"); and
Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods,
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techniques, processes, software, or other similar information which may have been discovered,
created, developed or derived by Consultant either prior to or as a result of its provision of
services under this Agreement (other than the Deliverables). Consultant's working papers and
Consultant's Confidential Information (as described herein) shall belong exclusively to
Consultant. The City shall have a non-exclusive, non -transferable license to use Consultant's
Confidential Information for the City's own internal use and only for the purposes for which they
are delivered to the extent that they form part of the Deliverables.
1.16 WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re -perform any work not in compliance
with this warranty. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
1.17 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of this Agreement,
then and in that event the City shall give written notification to Consultant; thereafter, (a)
Consultant shall either promptly re -perform such services to the City's satisfaction at no
additional charge, or (b) if such deficient services cannot be cured within the cure period set
forth herein in Section 1.11, then this Agreement may be terminated for default.
In no event will Consultant be liable for any loss, damage, cost or expense attributable to
negligence, willful misconduct or misrepresentations by the City, its directors, employees or
agents.
In no event shall Consultant be liable to the City, by reason of any act or omission
relating to the services provided under this Agreement (including the negligence of Consultant),
whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit,
punitive, special or similar damages relating to or arising from the services, or (b) in any event,
in the aggregate, for any amount in excess of the total professional fees paid by the City to
Consultant under this Agreement, except to the extent determined to have resulted from
Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service
provided hereunder.
1.18 INDEMNIFICATION
Consultant and the City each agree to indemnify, defend and hold harmless the other
from and against any and all amounts payable under any judgment, verdict, court order or
settlement for death or bodily injury or the damage to or loss or destruction of any real or
tangible personal property to the extent arising out of the indemnitor's negligence in the
performance of this Agreement.
13
Consultant agrees to indemnify, defend and hold harmless the City from and against any
and all amounts payable under any judgment, verdict, court order or settlement for Third Party
claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to
have occurred and arising from the deliverables provided by Consultant to the City in connection
with the performance of this Agreement. Should the City's use of such deliverables be
determined to have infringed, Consultant may, at its option: (i) procure for the City the right to
continue using such deliverables provided or (ii) replace or modify them to make their use non -
infringing while yielding substantially equivalent results. If neither of the above options are or
would be available on a basis that is commercially reasonable, then Consultant may terminate
this Agreement, the City shall return such deliverables provided, and Consultant will refund to
the City the fees paid for the deliverables provided. This infringement indemnity does not cover
claims arising from the combination of such deliverables with products or services not provided
by Consultant; the modification of such deliverables by any person other than Consultant;
deliverables complying with or based upon (1) designs provided by or at the direction of the City
or (2) specifications or other information provided by or at the direction of the City; or use of
systems, materials or work performed in a manner not permitted hereunder or by another
obligation of the City to Consultant.
The indemnities in this section are contingent upon: (1) the indemnified party promptly
notifying the indemnifying party in writing of any claim which gives rise to a claim for
indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense
and settlement of such claim; and (3) the indemnified party cooperating with all reasonable
requests of the indemnifying party (at the indemnifying party's expense) in defending or settling
a claim. The indemnified party shall have the right, at its option and expense, to participate in
the defense of any suit or proceeding through counsel of its own choosing.
1.19 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval, which approval shall not be unreasonably withheld.
1.20 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. The City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
14
(3) Withhold state or federal income tax from any of Consultant's payments.
If requested, the City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
1.21 INSURANCE
Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term
of this Agreement professional liability insurance coverage in the minimum amount of One
Million Dollars from a company authorized to do insurance business in Texas and otherwise
acceptable to the City.
Subconsultant Insurance. Without limiting any of the other obligations or liabilities of
Consultant, Consultant shall require each subconsultant performing work under this Agreement
to maintain during the term of the Agreement, at the subconsultant's own expense, the same
stipulated minimum insurance required in the immediately preceding paragraph, including the
required provisions and additional policy conditions as shown below. As an alternative,
Consultant may include its subconsultants as additional insureds on its own coverages as
prescribed under these requirements. Consultant's certificate of insurance shall note in such
event that the subconsultants are included as additional insureds.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant
in order to assure compliance with the insurance requirements. Consultant must retain the
certificates of insurance for the duration of this Agreement, and shall have the responsibility of
enforcing these insurance requirements among its subconsultants.,The City shall be entitled,
upon request and without expense, to receive copies of these certificates of insurance.
Insurance Policy Endorsements. Each insurance policy hereunder shall include the
following conditions by endorsement to the policy:
(1)
Each policy shall require that thirty (30) days prior to the expiration, cancellation,
non -renewal or any material change in coverage, a notice thereof shall be given to
the City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify the City, within twenty-four (24) hours of receipt, of
any notices of expiration, cancellation, non -renewal, or material change in coverage
it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against the City for
payment of any premiums or assessments for any deductibles which all are at the
sole responsibility and risk of Consultant.
15
(3)
Terms "the City" or "the City of Round Rock" shall include all authorities, boards,
commissions, departments, and officers of the City and individual members,
employees and agents in their official capacities, or while acting on behalf of the
City of Round Rock.
(4) The policy clause "Other Insurance" shall not apply to any insurance coverage
currently held by the City, to any future coverage, or to the City's Self -Insured
Retentions of whatever nature.
(5) Consultant and the City mutually waive subrogation rights each may have against
the other for loss or damage, to the extent same is covered by the proceeds of
insurance.
Cost of Insurance. The cost of all insurance required herein to be secured and maintained
by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such
minimum coverage in force to be filed with the City.
1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and same shall belong solely to the City at the expiration of the term of this Agreement.
1.23 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required under this
Agreement.
1.24 DESIGNATION OF REPRESENTATIVES
The City hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
David Kautz
Assistant City Manager/CFO
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Email: davidk@round-rock.tx.us
16
Consultant hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Steven E. Spickard
Senior Vice President
Economics Research Associates
388 Market Street, Suite 1580
San Francisco, CA 94111
1.25 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of the City and Consultant.
1.26 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
17
1.27 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including exhibits, constitute the entire
agreement between the parties and supersede all previous communications, representations, and
agreements, either written or oral, with respect to the subject matter hereof. The parties
understand and expressly agree that, in the event of any conflict between the terms of this
Agreement and any other writing, this Agreement shall prevail. No modifications of this
Agreement will be binding on any of the parties unless acknowledged in writing by the duly
authorized governing body or representative for each party.
1.28 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
the City shall select one mediator and Consultant shall select one mediator and those two
mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees,
associated with the mediation shall be shared equally by the parties.
The City and Consultant hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute.
1.29 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to the City if its failure
to perform or its substantial delay in performance is due to the City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.30 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
18
shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
1.31 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted business attraction practices.
1.32 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
No delay or omission by either party in exercising any right or power shall impair such
right or power or be construed to be a waiver. A waiver by either party of any of the covenants
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in
writing and signed by an authorized representative of the party against whom such waiver or
discharge is sought to be enforced.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered one original. The City agrees to provide Consultant with one fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock, Texas Attest:
By:
Christine R. Martinez, City Secretary
Date Signed: Date Signed:
Economics Research Associates
By:
Title:
Date Signed:
19
For City, Approved as to Form:
Stephan L. Sheets, City Attorney
ECONOMICS RESEARCH ASSOCIATES
STANDARD PROPOSAL ADDENDUM
It is understood by the client that Economics Research Associates (ERA) can make
no guarantees concerning the recommendations which will result from the proposed
assignment, since these recommendations must be based upon facts discovered by ERA
during the course of the study and those conditions existing as of the date of the report. To
protect you and other clients, and to assure that the research results of ERA's work will
continue to be accepted as objective and impartial by the business community, it is
understood that our fee for the undertaking of this project is in no way dependent upon the
specific conclusions reached or the nature of the advice given by us in our report to you.
It is agreed by the client that the report is not to be used in conjunction with any
public or private offering of debt or equity securities without prior written consent.
It is further agreed that the client will indemnify ERA against any losses, claims,
damages and liabilities under federal and state securities laws which may arise as a result of
statements or omissions in public or private offerings of securities.
It is agreed by the client that payment for the services of ERA is due upon receipt of
progress invoices; and that full payment is due upon receipt of the completed report.
In the event any invoice is not paid within 30 days after rendering of the invoice,
then applicable provisions of Sections 1.06 and 1.10 of the Agreement shall govern.
It is further agreed by the client that the report will be presented to third parties in its
entirety and that no abstracting of the report will be made without first obtaining the
permission of ERA, which permission shall not be unreasonably withheld.
It is understood by ERA that the findings of this report are the proprietary property
of the client and they will not be made available to any other organization or individual
without the consent of the client, which consent shall not be unreasonably withheld.
00099691/jkg
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY
May 18, 2006
Mr. Charlie Dromgoole, President
Round Rock Chamber of Commerce
212 East Main Street
Round Rock, Texas 78664
Dear Charlie,
As discussed with the Economic Development Program Committee on April 10, 2006,
the City proposes to enter into an agreement with Economics Research Associates
(ERA) for the purpose of analyzing possible event facilities. We discussed a 50/50 split
of the costs for the study with 1/2 being paid by the Round Rock Chamber of Commerce
and '/2 paid by the City. The cost of the phase I consulting services including issuance of
the final report will not exceed $75,000.
A draft of the scope of services has been provided to you and a copy of the agreement
will be provided to you upon approval by the City Council.
Please acknowledge that the Round Rock Chamber of Commerce will pay to the City '/2
of the total cost of the study by signing below and returning a copy of this letter to me.
Thanks for your help and participation in this important project.
erely,
Mayor
Nyle Maxwell
Mayor Pro -tem
Alan McGraw
Council Members
Rufus Honeycutt
Joe Clifford
Carlos T. Salinas
Scott Rhode
David Kautz
Assistant City Manager / CFO
City of Round Rock
cc: Jim Nuse, City Manager
Joe Vining, RR Chamber of Commerce
Round Rock Chamber of Commerce will reimburse the City of Round Rock for `/2
Ted Williamson o : total s><Q€-the.ERA event facilities study upon request by the City.
City Manager
James R. Nuse, P.E. Charlie Dromgoole 'Presi
City Attorney
Stephan L. Sheets
CITY OF ROUND ROCK ADMINisTPATivE DEPT., 22I East Main Street • Round Rock, Texas 78664
Phone: 512.2 8.54oi • Fax: 512.218.7097 • www.ci.round-rock.tx.us
Consulting Services for
Convention Centers
And Meeting Facilities
ERA
Economics Research Associates
h
11
11
11
11
11
#/1
Offering Economic Planning Services
for over 40 years
ERA advises governments throughout the United States and abroad about urban planning economics
and development policy, project feasibility, public-private partnerships, and community economic
development. Since its founding, the firm has undertaken more than 15,000 engagements. Our clients
include public agencies, private firms, and not-for-profit institutions. ERA understands the public
sector's policy objectives, the private sector's economic imperatives, and the inherently political public
decision making process. We serve all levels of government and collaborate with government staff,
constituents, developers, officials, and other professional services firms.
ERA's services to the public sector include:
Market and Financial Feasibility Analysis
Economic and Fiscal Impact Assessments
Development Programming
Financing and Implementation Strategies
Park, Recreation and Open Space Planning
Redevelopment Strategies
Specific and General Plans
Yerba Buena Center, San Francisco, CA Above
Project Packaging and Developer Recruitment
Public Facility Planning
Valuation and Disposition Strategies
Transportation and Joint Development Analysis
Economic Development Plans
Policy Analysis
Tourism Strategies
ERA
Clients & Projects in the United States
Adaptive Use
Reuse Potential of Historic Structure
Haslett Warehouse, San Francisco
Northern Virginia Regional
Commission, Virginia
Community Revitalization
Hollywood Entertainment District BID,
City of Los Angeles, California
F Street Retail Strategy,
Washington DC
Chinatown Business Survey
& Development Strategy,
San Francisco, California
Historic & Cultural Facilities
Evaluation and Planning for
Historic Properties,
Alabama Historical Commission
Alaska Native Heritage Center
ANHC, Inc., Anchorage
Rose Center expansion feasibility,
American Museum of Natural History,
New York, New York
Economic & Fiscal Impact
Economic Impacts of '94 World Cup
on Host Cities, World Cup
'94 Organizing Committee
Economic Impact of Port of San Diego,
San Diego Unified Port District
Sears World Headquarters Impact
Study IDOT, Sears, & Village of
Hoffman Estates, Illinois
Atlantic Station TAD, Atlanta
EIR/EIS Economic Studies
San Francisco Bay Area Navy Base
Closure & Reuse Impacts, US Navy
Buffalo Inner Harbor Impacts
Empire State Dev. Corporation,
Buffalo, New York
RSR Smelter Superfund Site
Land Reuse, City of Dallas
Quantification of benefits of smart
growth strategies; brownfields,
infill and building rehabilitation,
US Environmental Protection Agency
General Plans
& Planning Policy
City of Mesa Economic
Development Plan, Mesa, Arizona
Town of Nantucket Comprehensive Plan,
Nantucket, Massachusetts
Economic Development Strategy
& Element, Chula Vista, California
Housing Feasibility Studies
Downtown Housing Market Study,
Las Vegas Centre City Dev. Corp., Nevada
Riverside Drive Housing Study
City of Coral Springs, Forida
Economic Criteria for Senior Housing,
California Housing Finance Agency
Military Facility Reuse
Glenview Naval Air Station Reuse,
Village of Glenview, Illinois
Ogden Defense Depot,
Ogden, Utah
Comprehensive Economic Plan
for South Central San Antonio,
with Emphasis on the Brooks City
Base Project, City of San Antonio
Park, Recreation
& Open Space Planning
Analysis of Concession Lease Potential
National Park Service
Lake Lanier Islands Privatization
Study, Lake Lanier Islands
Development Authority, Georgia
Mission Bay Park Master Plan,
San Diego, California
Public Assembly Facilities
PGE Park, Portland, Oregon
Moscone Convention Center Expansion,
San Francisco, California
Air Canada Centre, Toronto, Ontario
Public Real Estate
Advisory Services
World Trade Center Site Redevelopment,
Port Authority of New York
& New Jersey
Port of Los Angeles Commercial Futures,
Port of Los Angeles, California
Transit -Oriented Development Packaging,
King County, Washington
Hampton Convention Hotel and
Crossroads Projects, Hampton, Virginia
Regional Economic
Development
Southern Tier Economic Adjustment
Strategy, State of New York
San Diego/ Tijuana Border Zone
Economic Development Plan,
San Diego, California
CANAMEX Economic Plan, States of
Arizona, Nevada, Utah, Idaho, Montana
Specific Plans
Third Street Promenade,
City of Santa Monica, California
Governors Island Redevelopment
Strategy, Regional Plan Association,
New York, New York
Tourism Development
Arkansas Tourism Strategy
State of Arkansas
Statewide Tourism Master Plan,
Massachusetts Office of
Travel and Tourism
"Pearls of LA" Tourism Strategy
Los Angeles Community
Redevelopment Agency
Downtown Planning
Downtown Portland Retail Strategy,
Portland Development Commission
and Association for Portland Progress
Downtown Scottsdale Opportunities
Study, Scottsdale, Arizona
Downtown Comprehensive Economic
Development Strategy,
Los Angeles, California
Transportation Planning
Miami Intermodal Center,
Florida Department of Transportation
Statewide High Speed Rail Economic
Impact Study, California Dept. of
Transportation
Impacts and Joint Development
Opportunities, Federal Highway
Administration
Urban Redevelopment
Massachusetts Turnpike Air Rights
Analysis, Boston Redevelopment
Authority, Massachusetts
Yerba Buena Center, San Francisco
Redevelopment Agency, California
Downtown Oklahoma City Strategic
Action Plan
Waterfront Planning
Inner -Harbor East Urban Renewal Area,
Charles Center -Inner Harbor
Management, Baltimore, Maryland
Element Synergy Analysis and
Attendance Projections, Navy Pier,
Chicago, Illinois
Queensway Bay Master Plan,
Long Beach, California
Office Locations
Los Angeles
10990 Wilshire Boulevard, Suite 1500
Los Angeles, California 90024
310.477.9585 Fax 310.478.1950
San Francisco
388 Market Street, Suite 1580
San Francisco, California 94111
415.956.8152 Fax 415.956.5274
Washington DC
1101 Connecticut Ave, NW, Suite 750
Washington, DC 20036
202.496.8152 Fax 202.496.9877
Chicago
20 East Jackson Boulevard, Suite 1200
Chicago, Illinois 60604
312.427.3855 Fax 312.427.3660
San Diego
600 B Street, Suite 1470
San Diego, California 92101
619.237.1227 Fax 619 237.1221
New York
1180 Avenue of the Americas, Suite 1489
New York, New York 10036
212.899.5593 Fax 212 899.5594
London
25 Hosier Lane
London, UK EC1A 9DW
44.(0)20.7651.0222 Fax 44.(0)20.7651.0223
www.econres.com
ERA
Economics Research Associates
Feasibility
and Implementation
ERA is experienced in providing an array of services to all manner of convention,
cultural, and other public assembly facilities. Our assignments range from small-scale
community facilities to major urban projects. Each public facility has a special set of
needs which must be met, yet each facility must address the basic issues of demand,
attendance, sizing, management and operations, financial feasibility, and economic
and fiscal impact. ERA has the experience and flexibility to provide innovative
solutions to the particular needs of each project, and provide the sound advice
essential for the development of a financially viable project
Services:
Market Support
Physical Programming
Financial Evaluation
Funding Plans
Economic and Fiscal Impact
Public Presentation and
Architect Selection
Feasibility Studies
Needs Assessments
Attendance Forecasting
Implementation Services
Solicitation and Negotiation
Management and Operations
Evaluation
FRONT:
Moscone West, San Francisco, CA - right
Palm Springs Convention Center, CA - top left
Salt Lake South Town Expo Center, UT - bottom left
TOP LEFT.
Bayside Exposition and Conference Center, MA - top
Polk County Convention Complex, IA - bottom
Selected Clients:
Convention and Conference Centers:
Los Angeles Convention and Visitors Bureau, CA
Flagstaff Convention Center Task Force, AZ
City of San Francisco, CA
Port of Portland, OR
City of Park City, UT
City of Mobile, AL
Salt Lake City Convention and Visitors Bureau, UT
Village of Tinley Park, IL
The Greater Baltimore Committee, MD
Bayside Expo Center, Boston, MA
Las Vegas Visitors and Convention Authority, NV
California State University, San Bernardino, CA
City of Hampton, VA
Performing Arts/Cultural Centers:
City of Arvada, CO
Alaska Native Heritage Commission
Riverfront Development Corporation of Delaware
Sierra Nevada College, CA
City of San Diego, CA
Town of Vail, CO
Public Assembly:
City of Round Rock, TX
The Greater Des Moines Convention and Visitors
Bureau, IA
Ogden Entertainment
Alexandria Chamber of Commerce, VA
City of Louisville, KY
Empire State Development Buffalo, NY
Vail Associates. CO
Economics Research Associates
Office Locations
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Washington 1
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11!*4 Avt,niii• or 111.., !-11111...11.1%,1
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2121.IL Lx 212 S'011..;5414
www.acanros.cam
Chicago
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1111 •k 411144
427 11°17,5 F.;x 112 427.3440
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ERA
DATE: May 18, 2006
SUBJECT: City Council Meeting - May 25, 2006
ITEM: 11.C.1. Consider a resolution authorizing the Mayor to execute an
agreement with Economic Research Associates for consulting
services related to the feasibility of a City Event Center Facility.
Department: Administration
Staff Person: David Kautz, Assistant City Manager/CFO
Justification: ERA will analyze alternative concepts for the possible development of a
major new city facility to house special events. This proposal will
include an analysis of possible options that will work towards
advancing economic development goals of the community.
Funding:
Cost: Not to exceed $75,000.00
Source of funds: 'h Hotel Occupancy Tax Fund, 1/2 Round Rock Chamber of Commerce
(Momentum Funding)
Outside Resources: Economic Research Associates (ERA)
Background Information: N/A
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
CITY OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES FOR
EVENT FACILITIES ASSESSMENT WITH
ECONOMICS RESEARCH ASSOCIATES (ERA)
THIS AGREEMENT for professional consulting services relating to the City of Round
Rock's potential construction and operation of an event facility (the "Agreement") is made by
and between the City of Round Rock, a Texas home -rule municipal corporation, with offices
located at 221 East Main Street, Round Rock, Texas 78664-5299, (the "City") and Economics
Research Associates (ERA) (the "Consultant"), with offices located at 388 Market Street, Suite
1580, San Francisco, California 94111.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than one (1) year from the effective date of this
Agreement.
City reserves the right to review the Agreement at any time, including at the end of any
deliverable or phase or task, and may elect to terminate the Agreement with or without cause or
may elect to continue.
1.02 CONTRACT AMOUNT
In consideration for the professional consulting services to be performed by Consultant,
City agrees to pay Consultant a total sum not to exceed Seventy Thousand and No/100 Dollars
($70,000.00), in payment for Phase I services and the Phase I Scope of Work deliverables as
k0
00-kb5-a5-Ji .j
delineated in Section 1.03. This amount does not include expenses which otherwise are
reimbursable under this Agreement as delineated in Section 1.04.
1.03 SCOPE OF WORK
ERA shall analyze alternative concepts for a major new facility that could be developed
in Round Rock. ERA acknowledges its understanding that a variety of conversations have been
taking place in Round Rock regarding various types of new facilities that could be developed to
house events, thereby adding to the quality of life and advancing economic development goals of
the City. At least five different concepts have been discussed, including:
Performing Arts Center - including one or more fixed -seat theaters;
Civic Center - housing wedding receptions, banquets, and other local community
functions;
Convention Center - including significant flat floor exhibition hall space as well
as breakout spaces for meetings;
Conference Center - focusing more on meetings and less on exhibit space; and
Special Events Center - composed primarily of a large flat -floor flexible "box"
that could be used for consumer shows, small sporting events, and exhibits.
ERA acknowledges that one multi purpose facility might be able to meet more than one category
of needs, and other blends of concepts between the five described categories could be envisioned.
ERA shall analyze the tradeoffs between the listed possible facilities, and assist in working
through a decision-making process when moving towards development. ERA shall assist the City and its
broader community with selecting the most advantageous type offacility.
ERA shall divide its consulting work into two phases, those being Phase I and proposed Phase II.
Phase I requires that ERA conduct an overview level of research into all five of the listed concepts.
Phase II, if and when contracted for by the City, would require ERA to conduct a more detailed analysis
of a preferred concept.
Phase I Scope of Work: Comparison of Five Listed Concepts
(1)
Initial Meetings. During an initial trip, the two senior ERA staff on the project will
spend two to three days in Round Rock. ERA will meet with the City staff, as well as meet
with other Round Rock community leaders and interest groups, as appropriate. ERA shall
also spend sufficient time touring Round Rock and surrounding central Texas areas to
gain a solid understanding of the environment.
(2) Initial Feedback. During the initial trip, ERA staff shall discuss goals and expectations
for facility performance. After return to ERA 's offices, ERA shall draft a memorandum
documenting ERA's understanding of the goals and objectives. After review by the City,
this written statement will help focus and guide later research and analysis tasks.
For each of the five concepts, as further refined with input from the City, at least an overview
level of research and analysis shall be conducted. More detailed feasibility -level analysis may be
conducted on a preferred concept once it has been selected. At the overview -level, the
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mechanisms through which financial and economic impacts may be felt by the Round Rock
community shall be understood, and the typical operating profiles of the d ferent facilities shall
be described. Quantification of many factors will likely remain in ranges or "high, medium, and
low" characterizations for evaluation purposes. Tasks in this set include:
(3)
Indicators of Demand. Develop overview of indicators of demand for each facility (e.g.,
some facility concepts, such as performing arts and consumer shows, depend mostly on
local market patronage and future growth, while others, such as conventions and
tradeshows, depend on state and national trends in meeting groups).
(4) Review of Competitors. Identify the locations and review the characteristics of facilities
in the Austin/Round Rock metropolitan area that could create competition for each of the
considered concepts. Much of this information shall be gathered in a second trip to the
Round Rock area by ERA 's research and analysis staff. This trip also affords another
opportunity for ERA to meet with the City, and other community leaders who might not
have been available during the first trip.
(5)
Comparable Facilities Review. Identify and review the characteristics of comparable
facilities in other areas that are worthy of being emulated.
(6) Identify Typical Characteristics. For each facility concept, there are national norms and
typical patterns of funding, development, management and operations. ERA shall
describe the patterns for each.
(7)
Describe Typical Financial Profile. Describe typical patterns of financial performance
for each facility type, e.g., ability to cover operating costs with operating revenues,
ability to contribute to debt service out of earned income.
(8) Economic and Fiscal Impacts. Describe mechanisms through which the facility concept
can impact the City fiscally and the community at large economically. Quantify these
mechanisms at least to the extent that they can be ranked on each measure.
(9)
Discuss Desirable Site Characteristics. The different facilities have different sources of
market support, and thus will have differences in location and site requirements. In
general terms, desirable locations and potentially available sites may be discussed.
Armed with enough research into alternative facility types, ERA shall then compare all concepts
side by side. Tasks leading to selection of an alternative preferred by the City and the Round
Rock community include:
(10) Decision Matrix. ERA shall develop a decision matrix including criteria such as ability
to pay operating costs, ability to contribute to debt service, service to community needs,
ability to generate jobs and other positive economic impacts, potential for private
partnering in development or operations, ability to attract philanthropic support, and
other considerations that emerge from the goals and objectives discussions of the study.
(11) Evaluate Concepts Using Goals and Objectives. ERA shall describe pros and cons of
each facility concept, and compare and contrast the elements of the decision matrix in a
narrative format.
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(12) Specifically Characterize Financial Issues. Understanding that financial, fiscal, and
economic impact criteria are especially important to project feasibility and long-term
sustainability, ERA shall specifically highlight cost, funding, and economic impact issues
in the evaluation.
(13) Meet to Discuss Draft. As directed by the City, key ERA staff shall meet with steering
committee, City staff and/or Council to discuss alternatives.
(14) Reporting. A draft report shall be written as the research, analysis, and comparisons are
conducted and completed. The draft report shall be derived from all preliminary studies
necessary to the performance of the Scope of Work, and shall be delivered to the City to
be appropriately considered, clarified, and possibly revised. The draft report, and any
final report derived therefrom and from performance of the entire Scope of Work, shall
be a concise and thorough evaluation and shall provide the City with the necessary data
and analysis to determine the appropriate course of action. The draft report shall be
e-mailed to the client group in advance of the meeting delineated in Subsection (13)
immediately above. Within two weeks of having received written comments from the
client group, ERA shall prepare a final version of the written report per requirements
delineated in Section 1.07 herein.
(15) (Optional) Phase I Presentation. In many cases, a presentation and discussion of the
draft report followed up by a final written product is sufficient to conclude this type of
project. In others, it is helpful to bring consultants back for one or more presentations to
other decision-making bodies or other community groups. At the direction of the City,
ERA shall remain available to make one or more presentations of the results of the
analysis to community leaders, decision-making bodies, and/or community groups.
Phase I Scope of Work: Schedule
The Phase I study is estimated by ERA to take six to eight weeks to conduct. Given that elements
of this study will likely be conducted during the summer vacation season, adequate time for
community involvement and collection of information may take longer.
Between the Phase I and, if contracted for by the City, Phase II, there may be a hiatus for ERA as
different community groups are presented with the results of the comparative analysis and
consider their options. In some cases, consultant assistance with presentations or facilitation of
this process can be helpful.
Once a preferred concept is identified, ERA estimates that a more detailed feasibility study may
take four to six weeks.
(Optional) Phase II Anticipated Scope of Work: Analysis of the Preferred Concept
The steps to take in preparing a more detailed feasibility study of major public assembly facilities
vary significantly by the type of facility. Therefore, it is not possible for ERA to prepare a firm
Scope of Work and fee for Phase II until the City and the broader Round Rock community has
had an opportunity to work through Phase I with consulting assistance. However, ERA is able at
this time to provide a delineation of the likely steps that would need to be taken in providing a
detailed analysis of the preferred concept, should the City later contract with ERA to do so:
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(1) Interview or survey a sample of potential end-users of the facility;
(2) Interview management of competitive facilities in the Austin/Round Rock metropolitan
area;
(3) Conduct detailed case studies of comparable facilities in other areas that share one or
more significant characteristics with the preferred Round Rock concept;
(4) Identify sources of funding that are appropriate for the concept;
(5) Explore the potential for partnering with private corporations, non-profit organizations,
or other public agencies in developing or operating the facility;
(6) Review possible sites in Round Rock, and estimate likely scenarios and costs for
acquisition;
(7) Recommend a business model for owning, operating, managing and marketing the
facility;
(8) Estimate the staff requirements to achieve operational goals;
(9) Project a financial pro forma of operations, from development through stabilized
occupancy;
(10) Estimate facility development costs on a basic per -square -foot basis;
(11) Project a financial pro forma for development;
(12) Estimate the extent to which the facility will serve as a tourism draw, thereby serving as
an economic engine for Round Rock;
(13) Estimate the direct, indirect, and induced economic impacts in terms of jobs, gross
economic output and personal income created by ongoing operations, using an input-
output multiplier system such as the U.S. government 's RIMS II system;
(14) Estimate the net fiscal burden or benefit to the City of Round Rock;
(15) Prepare a written report; and
(16) Present results of the analysis to community leaders.
(Optional) Phase II Scope of Work: Schedule and Fee
Key ERA staff shall remain available to make presentations and participate in community
meetings after the conclusion of the Phase I work. Once the range of concepts has been narrowed
down to one, and building on the work completed in Phase I, a more detailed feasibility study of
the type partially described in the Phase II Scope of Work outlined above may be completed and
agreed to by both the City and ERA. Such detailed feasibility study is estimated by ERA to take
four to six weeks, and may be completed for $20, 000.00 to $40, 000.00 dependent upon which
concept is being analyzed and how deep it is necessary to go into the user survey task.
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For purposes of this Agreement, Consultant has issued its Scope of Work for the
assignments delineated herein, and such Scope of Work is recited herein. This Agreement shall
evidence the entire understanding and agreement between the parties and shall supersede any
prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services and deliverables described under the
referenced Scope of Work within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for the City and/or advising the City
concerning those matters on which Consultant has been specifically engaged. Consultant shall
perform its services in accordance with this Agreement and in accordance with the referenced
Scope of Work. Consultant shall perform its services in a professional and workmanlike manner.
Consultant shall not undertake work that is beyond the Scope of Work set forth in Section
1.03. However, either party may make written requests for changes to the Scope of Work. To be
effective, a change to the Scope of Work must be negotiated and agreed to in all relevant details,
and must be embodied in a valid Supplemental Agreement as described in Section 1.05 hereof.
1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, the City agrees to pay Consultant the following "Payment for Services:"
Fees for the listed deliverables in the total amount of Seventy Thousand and No/100
Dollars ($70,000.00) shall be paid by the City in the following manner:
(1) Upon delivery of the memorandum required in Section 1.03 under "Phase
I Scope of Work: Comparison of Five Listed Concepts," Subsection (2)
entitled "Initial Feedback," the City shall be invoiced by Consultant and
the City shall thereupon make an initial payment of twenty-five percent
(25%) of the total "Payment for Services;"
(2) Upon delivery of the Draft Report, the City shall be invoiced by
Consultant and the City shall thereupon make a progress payment of
thirty-seven and one-half percent (37-1/2%) of the total "Payment for
Services;"
(3)
Upon delivery of the Final Report, the City shall be invoiced by
Consultant and the City shall thereupon make a final payment of the
remaining thirty-seven and one-half percent (37-1/2%) of the total
"Payment for Services."
Payment for Reimbursable Expenses: Reimbursable expenses authorized by the City
shall be paid to Consultant at actual cost, upon Consultant properly invoicing for same and
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providing documentation for same. Such reimbursable expenses for Phase I shall not exceed the
total amount of Five Thousand and No/100 Dollars ($5,000.00).
Not -to -Exceed Total Payment for Services: Unless subsequently changed by
Supplemental Agreement to this Agreement, Consultant's total compensation for consulting
services hereunder shall not exceed Seventy Thousand and No/100 Dollars ($70,000.00). This
amount represents the absolute limit of the City's liability to Consultant hereunder unless same
shall be changed by additional Supplemental Agreement, and the City shall pay, strictly within
the confines of the not -to -exceed sum recited herein, Consultant's professional fees for work
done on behalf of the City.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions: No additions shall be made to Consultant's compensation based upon project
claims, whether paid by the City or denied.
1.05 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if the City determines that there
has been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
the City shall not be responsible for actions by Consultant nor for any costs incurred by
Consultant relating to additional work not directly authorized by Supplemental Agreement.
1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment following delivery of all deliverables, Consultant shall
prepare and submit detailed progress invoices to the City, in accordance with the delineation
contained herein, for services rendered. Such invoices for professional services shall track the
referenced Scope of Work, and shall detail the services performed, along with documentation for
each service performed. Payment to Consultant shall be made on the basis of the invoices
submitted by Consultant and approved by the City. Such invoices shall conform to the schedule
of services and costs in connection therewith.
Should additional backup material be requested by the City relative to service
deliverables, Consultant shall comply promptly. In this regard, should the City determine it
necessary, Consultant shall make all records and books relating to this Agreement available to
the City for inspection and auditing purposes.
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Payment of Invoices: The City reserves the right to correct any error that may be
discovered in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of an invoice, the City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 1.10 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and the City or because of amounts which the City has a right to withhold under this Agreement
or state law. The City shall be responsible for any sales, gross receipts or similar taxes
applicable to the services, but not for taxes based upon Consultant's net income.
1.07 REQUIRED DRAFT REPORT AND FINAL REPORT
Consultant agrees to provide the City with a draft report and a detailed final written
report, together with all information gathered and materials developed during the course of the
project. Additionally, Consultant agrees to provide the City with any necessary oral
presentations of such written reports, at the City's designation and at no additional cost to the
City.
Consultant agrees to provide the City with ten (10) additional bound copies of the final
written report, with one (1) additional unbound copy being delivered which is suitable for the
City to make additional copies at the sole election of the City. All copies of the written final
report will be on 8-1/2" x 11" or 8-1/2" x 17" paper, will be primarily in black and white, will be
spiral bound, and will contain color pages, images, photos, and diagrams as necessary.
Consultant shall also deliver two (2) reproducible CDs to the City, all at no additional cost to the
City.
1.08 LIMITATION TO SCOPE OF WORK
Consultant and the City agree that the scope of services to be performed is enumerated in
Section 1.03 herein, and may not be changed without the express written agreement of the
parties. Notwithstanding anything herein to the contrary, the parties agree that the City retains
absolute discretion and authority for all funding decisions, such to be based solely on criteria
accepted by the City which may be influenced by but not be dependent on Consultant's work.
1.09 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of the City's current revenues only. It is understood and
agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal
year if the governing body of the City does not appropriate funds sufficient to purchase the
services as determined by the City's budget for the fiscal year in question. The City may effect
such termination by giving Consultant a written notice of termination at the end of its then
current fiscal year.
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1.10 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which the City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the
day on which the performance of services was complete, or within thirty (30) days of the day on
which the City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee of one percent (1 %) for payments not made
in accordance with this prompt payment policy; however, this policy does not apply to payments
made by the City in the event:
(1) There is a bona fide dispute between the City and Consultant concerning the
supplies, materials, or equipment delivered or the services performed which
causes the payment to be late; or
(2) The terms of a federal contract, grant, regulation, or statute prevent the City from
making a timely payment with federal funds; or
There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
(4) Invoices are not mailed to the City in strict accordance with instructions, if any,
on the purchase order or the Agreement or other such contractual agreement.
(3)
1.11 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that the City may terminate this
Agreement for the convenience of the City, upon fifteen (15) days' written notice to Consultant,
with the understanding that immediately upon receipt of said notice all work being performed
under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily
completed and shall be compensated in accordance with the terms hereof for work accomplished
prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related to this project shall become the
property of the City upon termination of this Agreement, and shall be promptly delivered to the
City in a reasonably organized form without restriction on future use. Should the City
subsequently contract with a new consultant for continuation of service on the project,
Consultant shall cooperate in providing information.
Termination of this Agreement shall extinguish all rights, duties, and obligations of the
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.
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Nothing contained in this section shall require the City to pay for any work which is
unsatisfactory as determined by the City or which is not submitted in compliance with the terms
of this Agreement.
Default: The City may terminate this Agreement, in whole or in part, for default if the
City provides Consultant with written notice of such default and Consultant fails to cure such
default to the satisfaction of the City within ten (10) business days of receipt of such notice (or a
greater time if permitted by the City).
If Consultant defaults in performance of this Agreement and if the City terminates this
Agreement for such default, then the City shall give consideration to the actual costs incurred by
Consultant in performing the work to the date of default. The cost of the work that is useable to
the City, the cost to the City of employing another firm to complete the useable work, and other
factors will affect the value to the City of the work performed at the time of default. Consultant
shall not be entitled to any lost or anticipated profits for work terminated for default hereunder.
The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of the City and the terminated party to fulfill contractual obligations. Termination
under this section shall not relieve the terminated party of any obligations or liabilities which
occurred prior to termination.
Nothing contained in this section shall require the City to pay for any work with is
unsatisfactory as determined by the City, or which is not submitted in compliance with the terms
of this Agreement.
1.12 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and the City agree to the following rights
consistent with an independent contractor relationship:
(1) Consultant has the right to perform services for others during the term hereof
(2) Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and the City shall not hire, supervise, or pay assistants to help
Consultant.
(3)
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(5)
Neither Consultant nor its employees or subcontractors shall receive training from
the City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of the City.
(7)
1.13 NON -SOLICITATION
Except as may be otherwise agreed in writing, during the term of this Agreement and for
twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or shall
employ any person employed then or within the preceding twelve (12) months by the other or
any affiliate of the other if such person was involved, directly or indirectly, in the performance of
this Agreement. This provision shall not prohibit the hiring of any person who was solicited
solely through a newspaper advertisement or other general solicitation.
1.14 CITY'S RESPONSIBILITIES
Full information: The City shall provide full information regarding project
requirements. The City shall have the responsibility of providing Consultant with such
documentation and information as is reasonably required to enable Consultant to provide the
services called for. The City shall cause its employees and any third parties who are otherwise
assisting, advising or representing the City to cooperate on a timely basis with Consultant in the
provision of its services. Consultant may rely upon written information provided by the City and
its employees and agents as accurate and complete. Consultant may rely upon any written
directives provided by the City or its designated representative concerning provision of services.
Required materials: Consultant's performance requires receipt of all requested
information reasonably necessary to provision of services. The City shall furnish information
which includes but is not limited to access to the property, preliminary information and/or data
regarding the site and surrounding property (if applicable), pertinent correspondence with other
local municipal and planning officials, previous market analyses or feasibility studies, and other
pertinent information. Consultant agrees, within ten (10) days of the effective date of this
Agreement, to provide the City with a comprehensive and detailed information request list.
1.15 CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by the City for use by Consultant
in connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any
proprietary or confidential information relative to this Agreement, and to not make any use
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thereof other than for the performance of this Agreement, provided that no claim may be made
for any failure to protect information that occurs more than three (3) years after the end of this
Agreement.
The parties recognize and understand that the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
All data relating specifically to the City's business and any other information which
reasonably should be understood to be confidential to City is confidential information of City.
Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries,
inventions, know-how, and any other information which reasonably should be understood to be
confidential to Consultant is confidential information of Consultant. The City's confidential
information and Consultant's confidential information is collectively referred to as "Confidential
Information." Each party shall use Confidential Information of the other party only in
furtherance of the purposes of this Agreement and shall not disclose such Confidential
Information to any third party without the other party's prior written consent, which consent
shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the
confidentiality of the other party's Confidential Information and to advise their employees of the
confidential nature of the Confidential Information and of the prohibitions herein.
Notwithstanding anything to the contrary contained herein, neither party shall be
obligated to treat as confidential any information disclosed by the other party (the "Disclosing
Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is released by the Disclosing Party to any other person or entity (including
governmental agencies) without restriction; (3) is independently developed by the recipient
without any reliance on Confidential Information; or (4) is or later becomes publicly available
without violation of this Agreement or may be lawfully obtained by a party from any non-party.
Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information
of the other to a third party as may be required by law, statute, rule or regulation, including
subpoena or other similar form of process, provided that (without breaching any legal or
regulatory requirement) the party to whom the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein
shall preclude or limit Consultant from providing similar services for other clients.
Neither the City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered to the City under the terms of this Agreement (the "Deliverables"); and
Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods,
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techniques, processes, software, or other similar information which may have been discovered,
created, developed or derived by Consultant either prior to or as a result of its provision of
services under this Agreement (other than the Deliverables). Consultant's working papers and
Consultant's Confidential Information (as described herein) shall belong exclusively to
Consultant. The City shall have a non-exclusive, non -transferable license to use Consultant's
Confidential Information for the City's own internal use and only for the purposes for which they
are delivered to the extent that they form part of the Deliverables.
1.16 WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re -perform any work not in compliance
with this warranty. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
1.17 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of this Agreement,
then and in that event the City shall give written notification to Consultant; thereafter, (a)
Consultant shall either promptly re -perform such services to the City's satisfaction at no
additional charge, or (b) if such deficient services cannot be cured within the cure period set
forth herein in Section 1.11, then this Agreement may be terminated for default.
In no event will Consultant be liable for any loss, damage, cost or expense attributable to
negligence, willful misconduct or misrepresentations by the City, its directors, employees or
agents.
In no event shall Consultant be liable to the City, by reason of any act or omission
relating to the services provided under this Agreement (including the negligence of Consultant),
whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit,
punitive, special or similar damages relating to or arising from the services, or (b) in any event,
in the aggregate, for any amount in excess of the total professional fees paid by the City to
Consultant under this Agreement, except to the extent determined to have resulted from
Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service
provided hereunder.
1.18 INDEMNIFICATION
Consultant and the City each agree to indemnify, defend and hold harmless the other
from and against any and all amounts payable under any judgment, verdict, court order or
settlement for death or bodily injury or the damage to or loss or destruction of any real or
tangible personal property to the extent arising out of the indemnitor's negligence in the
performance of this Agreement.
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Consultant agrees to indemnify, defend and hold harmless the City from and against any
and all amounts payable under any judgment, verdict, court order or settlement for Third Party
claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to
have occurred and arising from the deliverables provided by Consultant to the City in connection
with the performance of this Agreement. Should the City's use of such deliverables be
determined to have infringed, Consultant may, at its option: (i) procure for the City the right to
continue using such deliverables provided or (ii) replace or modify them to make their use non -
infringing while yielding substantially equivalent results. If neither of the above options are or
would be available on a basis that is commercially reasonable, then Consultant may terminate
this Agreement, the City shall return such deliverables provided, and Consultant will refund to
the City the fees paid for the deliverables provided. This infringement indemnity does not cover
claims arising from the combination of such deliverables with products or services not provided
by Consultant; the modification of such deliverables by any person other than Consultant;
deliverables complying with or based upon (1) designs provided by or at the direction of the City
or (2) specifications or other information provided by or at the direction of the City; or use of
systems, materials or work performed in a manner not permitted hereunder or by another
obligation of the City to Consultant.
The indemnities in this section are contingent upon: (1) the indemnified party promptly
notifying the indemnifying party in writing of any claim which gives rise to a claim for
indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense
and settlement of such claim; and (3) the indemnified party cooperating with all reasonable
requests of the indemnifying party (at the indemnifying party's expense) in defending or settling
a claim. The indemnified party shall have the right, at its option and expense, to participate in
the defense of any suit or proceeding through counsel of its own choosing.
1.19 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval, which approval shall not be unreasonably withheld.
1.20 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. The City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
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(3) Withhold state or federal income tax from any of Consultant's payments.
If requested, the City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
1.21 INSURANCE
Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the
term of this Agreement professional liability insurance coverage in the minimum amount of One
Million Dollars from a company authorized to do insurance business in Texas and otherwise
acceptable to the City.
Subconsultant Insurance. Without limiting any of the other obligations or liabilities of
Consultant, Consultant shall require each subconsultant performing work under this Agreement
to maintain during the term of the Agreement, at the subconsultant's own expense, the same
stipulated minimum insurance required in the immediately preceding paragraph, including the
required provisions and additional policy conditions as shown below. As an alternative,
Consultant may include its subconsultants as additional insureds on its own coverages as
prescribed under these requirements. Consultant's certificate of insurance shall note in such
event that the subconsultants are included as additional insureds.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant
in order to assure compliance with the insurance requirements. Consultant must retain the
certificates of insurance for the duration of this Agreement, and shall have the responsibility of
enforcing these insurance requirements among its subconsultants. The City shall be entitled,
upon request and without expense, to receive copies of these certificates of insurance.
Insurance Policy Endorsements. Each insurance policy hereunder shall include the
following conditions by endorsement to the policy:
(1) Each policy shall require that thirty (30) days prior to the expiration, cancellation,
non -renewal or any material change in coverage, a notice thereof shall be given to
the City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify the City, within twenty-four (24) hours of receipt, of
any notices of expiration, cancellation, non -renewal, or material change in coverage
it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against the City for
payment of any premiums or assessments for any deductibles which all are at the
sole responsibility and risk of Consultant.
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(3)
Terms "the City" or "the City of Round Rock" shall include all authorities, boards,
commissions, departments, and officers of the City and individual members,
employees and agents in their official capacities, or while acting on behalf of the
City of Round Rock.
(4) The policy clause "Other Insurance" shall not apply to any insurance coverage
currently held by the City, to any future coverage, or to the City's Self -Insured
Retentions of whatever nature.
(5) Consultant and the City mutually waive subrogation rights each may have against
the other for loss or damage, to the extent same is covered by the proceeds of
insurance.
Cost of Insurance. The cost of all insurance required herein to be secured and
maintained by Consultant shall be borne solely by Consultant, with certificates of insurance
evidencing such minimum coverage in force to be filed with the City.
1.22 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and same shall belong solely to the City at the expiration of the term of this Agreement.
1.23 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required under this
Agreement.
1.24 DESIGNATION OF REPRESENTATIVES
The City hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
David Kautz
Assistant City Manager/CFO
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Email: davidk@round-rock.tx.us
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Consultant hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Steven E. Spickard
Senior Vice President
Economics Research Associates
388 Market Street, Suite 1580
San Francisco, CA 94111
1.25 NOTICES
All notices and other conununications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Steven E. Spickard, Senior Vice President
Economics Research Associates
388 Market St., Suite 1580
San Francisco, CA 94111
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of the City and Consultant.
1.26 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
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1.27 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including exhibits, constitute the entire
agreement between the parties and supersede all previous communications, representations, and
agreements, either written or oral, with respect to the subject matter hereof. The parties
understand and expressly agree that, in the event of any conflict between the terms of this
Agreement and any other writing, this Agreement shall prevail. No modifications of this
Agreement will be binding on any of the parties unless acknowledged in writing by the duly
authorized governing body or representative for each party.
1.28 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
the City shall select one mediator and Consultant shall select one mediator and those two
mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees,
associated with the mediation shall be shared equally by the parties.
The City and Consultant hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute.
1.29 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to the City if its failure
to perform or its substantial delay in performance is due to the City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.30 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
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shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
1.31 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted business attraction practices.
1.32 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
No delay or omission by either party in exercising any right or power shall impair such
right or power or be construed to be a waiver. A waiver by either party of any of the covenants
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in
writing and signed by an authorized representative of the party against whom such waiver or
discharge is sought to be enforced.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered one original. The City agrees to provide Consultant with one fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Ro
By:
Titl
Date Signed:
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Attest:
Christine R. Martinez, City Secretary
Date Signed: 5 -(ss-Q(p
For 0 ty, Approved as to Form:
1
Steph. L. Sheets, City Attorney
ECONOMICS RESEARCH ASSOCIATES
STANDARD PROPOSAL ADDENDUM
It is understood by the client that Economics Research Associates (ERA) can make
no guarantees concerning the recommendations which will result from the proposed
assignment, since these recommendations must be based upon facts discovered by ERA
during the course of the study and those conditions existing as of the date of the report. To
protect you and other clients, and to assure that the research results of ERA's work will
continue to be accepted as objective and impartial by the business community, it is
understood that our fee for the undertaking of this project is in no way dependent upon the
specific conclusions reached or the nature of the advice given by us in our report to you.
It is agreed by the client that the report is not to be used in conjunction with any
public or private offering of debt or equity securities without prior written consent.
It is further agreed that the client will indemnify ERA against any losses, claims,
damages and liabilities under federal and state securities laws which may arise as a result of
statements or omissions in public or private offerings of securities.
It is agreed by the client that payment for the services of ERA is due upon receipt of
progress invoices; and that full payment is due upon receipt of the completed report.
In the event any invoice is not paid within 30 days after rendering of the invoice,
then applicable provisions of Sections 1.06 and 1.10 of the Agreement shall govern.
It is further agreed by the client that the report will be presented to third parties in its
entirety and that no abstracting of the report will be made without first obtaining the
permission of ERA, which permission shall not be unreasonably withheld.
It is understood by ERA that the findings of this report are the proprietary property
of the client and they will not be made available to any other organization or individual
without the consent of the client, which consent shall not be unreasonably withheld.
00099691 /j kg