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HomeMy WebLinkAboutNERA ECONOMIC CONSULTING AGREEMENT NERA Economic Consulting NERA Economic Consulting 1006 East 39th St. Austin, TX 78751 Tel: 512 371 8995 Fax: 512 371 9612 www.nera.com October 15,2007 Mr. Stephen Shepherd County Attorney Augusta-Richmond County 701 Greene St., Suite 104 Augusta, GA 30901 Consulting Services Agreement This Consulting Services Agreement (this "Agreement") is made and entered into this 18th day of October, 2007, by and between National Economic Research Associates, Inc., a company organized under the laws of the State of California ("NERA") ("Consultant") and the Consolidated Government of Augusta-Richmond County, Georgia (the "City"). Whereas, NERA is in the business of providing economic research and consulting services; and Whereas, the City desires to retain the services ofNERA for a project or projects relating to RFP Item #07-115, a Comprehensive Disparity Study for the Disadvantaged Business Enterprise Department (the "Project"). Now, therefore, in consideration ofthepremises and mutual agreements contained herein, the parties hereto agree as follows: 1. Consultant's Services The City hereby retains NERA and NERA agrees to be so retained on the terms and conditions set forth in this Agreement to assist the City in connection with the Project. NERA's services shall consist of the services described in Appendix A hereto (the "Services"). 2. Fees, Exvenses and Taxes In consideration for the Services to be provided by NERA hereunder, the City shall pay to NERA the amounts that can be derived from the rates set forth in Appendix B hereto. Payment shall not be conditional on the outcome of the Project. The City shall also reimburse NERA for NERA Economic Consulting Page 2 October 15, 2007 all costs and expenses incurred by NERA in connection with its performance hereunder. Payment on invoices submitted shall be made within thirty (30) days ofthe date thereof. NERA reserves the right to stop work or resign from the Project if payment is unduly late. 3. Independent Contractor Status In connection with this Agreement, NERA shall be an independent contractor and as such shall not have any authority to bind or commit the City. 4. Ownership and Use of NERA Materials The City and NERA intend that all property rights to any and all project deliverables created by NERA specifically for the City and paid for by the City pursuant to this Agreement, (collectively, "Deliverables"), shall belong to the City. NERA shall disclose all such items to the City. To the extent permitted by the U.S. Copyright Act, 17 USC S 101 et seq., the Deliverables are a "work made for hire," and all ownership of copyright in the Deliverables shall vest in the City at the time they are created. To the extent that the Deliverables are not a "work made for hire," NERA hereby sells, assigns and transfers all right, title and interest in and to the Deliverables to the City, including the right to secure copyright, patent, trademark, and other intellectual property rights throughout the world and to have and to hold such copyright, patent, trademark, and other intellectual property rights in perpetuity. NERA retains all of its rights in its methodologies and methods of analysis, ideas, concepts, expressions, know how, methods, models, tools, techniques, skills, generic industry information, knowledge and experience (and any graphic representations of any of these) whether now possessed or hereafter acquired by NERA. All materials from which the Deliverables are derived are part of NERA' s working papers. Such intellectual property will not be deemed "works made for hire." Upon completion of the contract, NERA is permitted to use the working papers for purposes other than for the project insofar as the working papers so used are not used in any way as to be detrimental to the City or this contract. No recognition of this contract shall be made when using the working papers for other purposes unless the City has granted its permission in writing to so recognize the City. Such permission to recognize City must be requested by NERA on a case by case basis. It is understood and agreed that NERA's services may include advice and recommendations; however all decisions in connection with the implementation of such advice and recommendations shall be the sole responsibility of, and made by, the City. 5. Confidential Information Neither NERA nor any of its employees will disclose any information specifically identified as confidential at or prior to disclosure to NERA by the City (the "Information") for any purpose other than in furtherance of the Services to be rendered by NERA to the City hereunder. NERA shall take all steps reasonably necessary so tl}.at the confidentiality of the Information in NERA's possession shall be maintained by it. Upon termination ofNERA's engagement, all documents and records in NERA's possession containing the Information shall be returned to the City if so NERA Economic Consulting Page 3 October 15, 2007 requested by the City. NERA may, however, subject to its obligations of confidentiality hereunder, retain copies of its work product which may contain the Information for archival purposes and to defend its work product. Notwithstanding anything to the contrary contained herein, the provisions of this Section 5 shall not apply to any Information: (i) which at the time disclosed to, or obtained by, NERA is publicly available; (ii) which becomes publicly available through no fault ofNERA; (iii) which was communicated to NERA by a third party who is not, to NERA's knowledge, subject to any confidentiality obligations with respect thereto; (iv) which is independently developed by NERA; (v) which is required to be disclosed by law, including, without limitation, pursuant to the terms of a subpoena or other similar process or in connection with a litigation, arbitration or other proceeding; provided, however, that NERA shall use commercially reasonable efforts to give prior timely notice of such disclosure to the City to enable the City to challenge any such legal process; or (vi) following the lapse of three (3) years from the date of disclosure to NERA. In performing the Services, NERA will use all information supplied by the City without independently verifying its accuracy and NERA assumes no responsibility for the accuracy or completeness of such information. NERA agrees that its conclusions and any reports are for the confidential use and information of the City and that it will not disclose its conclusions in whole or in part to any persons whatsoever, other than to submit its written documentation to the City and will only discuss the same with it or its authorized representatives. Upon completion of this Agreement term, all documents, drawings, reports, maps, data and studies prepared by NERA pursuant thereto shall become the property of the City and be delivered thereto. Articles, papers, bulletins, reports, or other materials reporting the plans, progress, analyses, or results and findings of the work conducted under this Agreement shall not be presented publicly or published without prior approval in writing of the City. It is further agreed that if any information concerning this project, should be released by NERA without prior approval from the City, the release of same shall constitute grounds for termination of this Agreement without indemnity to NERA, but should any such information be released by NERA or by the City with such prior approval, the same shall be regarded as public information and no longer subject to the restrictions of this Agreement. NERA Economic Consulting Page 4 October 15, 2007 6. Term This Agreement shall be effective as of October 1,2007, and shall terminate on December 31, 2008, unless the term hereof is extended pursuant to express written agreement of the parties or terminated earlier in accordance with Section 7 hereunder. 7. Termination (a) The City may, upon giving at least twenty (20) calendar days' prior written notice identifying specifically the basis for such notice, terminate this Agreement for breach of a material term or condition of this Agreement, provided NERA shall not have cured such breach within the twenty (20) day period. (b) The City may at any time and without cause terminate this Agreement upon giving at least thirty (30) calendar days' prior written notice. (c) Upon termination of this Agreement for any reason, (i) NERA will cease all work and shall upon request promptly provide to the City all materials provided to NERA by the City in connection with this Agreement and all work product and files specific to the City developed by NERA under this Agreement, provided that NERA shall be entitled to keep a copy of such work product and files, subject to Section 5 hereunder; and (ii) NERA shall be entitled to payment of all fees for work performed by NERA and reimbursement of expenses incurred as provided in Section 2 through the effective date of such termination. 8. Cooperation The City shall provide all necessary cooperation and information to enable NERA to provide Services pursuant to this Agreement. 9. Liability Neither NERA nor the City will be liable to the other in connection with the Services or any matter relating to the Services for any indirect, special, punitive, consequential or incidental damages, including loss of profits. In addition, NERA will not be liable to the City to the extent any claim or claims individually or in the aggregate exceed the total professional fees paid to NERA for the Services. 10. Insurance NERA shall procure and maintain at its expense, during the term of this agreement, such insurance coverage as is customarily maintained by companies in the same type of business as NERA. NERA Economic Consulting Page 5 October 15, 2007 11. Force Maieure Neither party shall have any liability for any failure or delay in performance of its obligations under this agreement because of circumstances beyond its reasonable control, including, without limitation, acts of God, fires, floods, earthquakes, acts of war or terrorism, civil disturbances, sabotage, accidents, unusually severe weather, governmental actions, power failures, computer/network viruses that are not preventable through generally available retail products, catastrophic hardware failures or attacks on its server. 12. Non-Solicitation The City and NERA shall not, during the term of this Agreement and for a period of one (1) year thereafter, solicit for employment, employ or otherwise engage (or assist any third party to solicit for employment, employ or otherwise engage) any officer, consultant or other professional or managerial level employee who was employed by the other during the term of this Agreement and involved with the Project. 13. Conflicts of Interest It is NERA's practice to serve multiple clients within industries, including those with potentially opposing interests. By signing this Contract, NERA agrees that, while it is providing services for the City, it will not represent any other party or other client which may create a conflict of interest in its representation of the City which would adversely affect NERA's performance of services for the City or would compromise the confidential information of the City. 14. Dispute Resolution If any dispute between the City and NERA arises out of any matter governed by this Agreement, each of the City and NERA will first attempt in good faith to reach a settlement through negotiation by its appointed representatives. If the dispute is not resolved within sixty (60) calendar days of the first meeting between the representatives, or no such meeting is held within sixty (60) calendar days of notification in writing of the existence of a dispute, each party will attempt to settle the dispute with the aid of an impartial mediator. If mediation is not commenced or the dispute is not resolved within sixty (60) calendar days after the date the dispute is subject to mediation as set forth above, then either party can commence any action, suit or proceeding with respect to such dispute. In the event that any dispute between the City and NERA is not settled through negotiation or mediation, all claims, disputes, and other matters in question between Augusta and NERA arising out of or relating to the Agreement, or the breach thereof, shall be decided in the Superior court of Augusta-Richmond County, Georgia. NERA, by executing this agreement, specifically consents to jurisdiction and venue in Richmond County and waives any right to contest the jurisdiction and venue in the Superior Court of Richmond County, Georgia. NERA Economic Consulting Page 6 October 15, 2007 15. Governing Law The law of the State of Georgia shall govern the contract between the City and NERA with regard to its interpretation and performance, and any other claims related to this agreement. 16. Entire Agreement This Agreement, including the Appendices attached hereto, constitutes the full and complete understanding between the parties hereto about its subject, superseding all prior agreements, understandings and negotiations with respect to such matters. 17. Severability If any provision of this Agreement is held or declared to be prohibited or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement. 18. Amendment This Agreement may be amended or supplemented only in writing signed by both NERA and the City. 19. Assignability This Agreement shall be binding upon and inure to the benefit of the parties' respective successors. Neither party hereto may assign any of the rights or obligations created by this Agreement except with the express written consent of the other party hereto. 20. Survival The obligations of the parties under this Agreement that by their nature continue beyond the termination of this agreement shall survive any termination of this agreement. 21. Rights of Third Parties. No person who is not a party to this Agreement (including without limitation any employee, officer, agent, representative or subcontractor of either party) shall have any right to enforce any term of this Agreement. In witness whereof, the parties hereto have executed this Agreement as of the date first above written. NERA Economic Consulting Page 7 October 15, 2007 National Economic Research Associates, Inc. By: ~~ uJ~M7 Name: Title: Date: Jon Wainwright Vice President L () { ( < l 17, /f41f By: Name: Title: Date: .:~ ~~ '.~ j ;1 qi, f~ '.It NERA Economic Consulting Page 8 October 15, 2007 APPENDIX A Description of Services: NERA Economic Consulting's "Proposal to Conduct a Comprehensive Disparity Study for the Disadvantaged Business Enterprise Department, RFP Item #07-115, Prepared for the Consolidated Government of Augusta-Richmond County, Georgia" dated April 20, 2007, pp. 16- 31, is herein incorporated by reference. Progress Reporting: NERA will conduct monthly progress meetings by telephone with the City's project manager throughout the course of this agreement. The City's project manager shall request the meetings and they shall be scheduled at a mutually convenient time within five (5) business days of the request. Written progress reports will be provided to the City's project manager on a quarterly basis throughout the course of the agreement. NERA Economic Consulting Page 9 October 15, 2007 APPENDIX B The firm fixed price for this Project is $548,093. The estimated allocation ofthis firm fixed price appears in the figure on the following page. The timeline of 52 weeks commences on the date this agreement is fully executed by both parties. Travel expenses in this contract shall be subject to the U.S. General Services Administration's (GSA) per diem rates for the State of Georgia, as specified at the following INTERNET URL: http://\\T\\/w.gsa.gov/Portal/gsalep/ contentV iew .do ?querv Year=2008&contentType=GSA BASI C&contentId=17943&quervState=Georgia&noc=T (viewed 10/12/2007). The City agrees to provide NERA with a letter requesting that lodging providers in Augusta extend State of Georgia government employee rates to NERA employees while travelling to Augusta on business related to this agreement. NERA Economic Consulting Page 10 October 15, 2007 M/W/DBE Disparity Study for the Consolidated Government of Augusta-Richmond County, GA: Price Sheet Detail, Includi'ng Staffing Levels, Subconsultant Commitments, Out-of-Pocket and Travel Expenses . TASK A. Project Initiation Meeting B. Study Task Force Meeting C. Fill Final Data Request (*) D. Assemble Master M/W/DBE Directory E. Legal Standards F, Prepare Master Contract/Subcontract Database G. Determine Geographic & Product Markets H. Race- and Gender-Neutral alternatives I. Private'Sector Disparity Analysis: SBO data . Private Sector Disparity Anaiysis: PUMS/CPS MORG data K. Private Sector Disparity Analysis: Capital Markets L. Merge Master M/W/DBE Directory and Baseline Universe M. Mail Surveys (Business Experience) N. Business Interviews O. Analysis of Race & Sex Misclassif. and Non~Classif. Surveys P. Produce Public Sector M/W/DBE Utilization Estimates Q. Produce M/W/DBE Availability Estimates R. Produce Public Sector Disparity Analyses S. Prepare Draft Study Report and Final Study Report . Program Review and Design Recommendations U. Presentation of Final Study Report V. Upgrade recomm. M/W/DBE Data Collection Procedures TOTAL HOURS PERSONNEL/SUBCONSULTANT/EXPENSE SUBTOTAL TRA VEL No. trips Average days per trip Lodging ($90.4 per nigh, incl. tax) Airfare (round trip costs vary by point of origin) Ground Transport (Taxi, varies by point or origin) Ground Transport (Car Rental) ($140 per day) Mileage ($0.485 per mile) Meals ($39 per diem) TRA VEL TOTAL TOTAL . . . NERA PERSONNEL SUBS EXPENSES TIMEUNE Non-travel Officers Analysts CHA Officers Out-of- Pocket Weeks 1-2 4 2 4 Weeks 2-4 4 2 4 Weeks 4-9 64 21 2 Weeks 1-15 24 85 $ 1,250 Weeks 1-51 24 Weeks 10-41 217 84 $ 10,500 Weeks 10-43 12 Weeks 1-51 24. Weeks 23-41 8 Weeks 23-41 32 Weeks 23-41 40 Weeks 15-34 32 80 $ 4,500 Weeks 25-48 24 64 $ 42,750 Weeks 25-48 40 120 $ 8,625 Weeks 34-41 32 . $ 51,000 Weeks 39-48 24 Weeks 39-48 24 Weeks 39-48 24 Weeks 41~51 90 48 60 Weeks 45-51 32 Weeks 51-52 8 12 8 $ - Weeks 49-51 6 1,385 669 438 278 $ 539,190 $ 257,565 $ 65,700 $ 97,300 $ 118,625 2 2 3 2.0 3.0 2.5 , 271' 452 588 2,200 '. 2,200 1,425 . 156 234 293 $ 8,903 2,777 3,316 2,810 $548,093 .. (*) Timeline requires Final Data Reauest is filled no later than Week 6. Confidential and Proorietarv Business Information - Do Not Distribute without Permission EXPENSES DETAIL: Item D: Costs for acquiring various business directories Item F: Temporary personnel charges for hard copy data keypunch and subcontract data collection Item L: Acquisition cost for Dun & Bradstreet MarketPlace data Item M: Cost for 10,000 mail surveys and 1,250 non-response phone surveys Item N: Miscellaneous costs for six focus groups (transcription, catering, parking, etc.) Item 0: Cost for 3,000 misclassification/nonclassification phone surveys . "______Smu~l~ment!llC9n~YJti!!L~~rvices Agreem~nl_.____ This Supplemental Consulting Services Agreement is made and entered into by and between National Economic Research Associates, Inc. ("NERA"), a company organized under the laws of the State of California and the consolidated government of Augusta-Richmond County ("Augusta"). 1. Consulting Services Agreement On or about October 18,2007, NERA and Augusta entered into a Consulting Services Agreement ("Consulting Services Agreement", attached hereto as Exhibit "A"), wherein the parties agreed that NERA would provide consulting services for Item #07-115, a Comprehensive Disparity Study for the Disadvantaged Business Enterprise Department. 2. Extension of Term of Agreement Paragraph six (6) of the Consulting Services Agreement provided that the term of the agreement would terminate on December 31, 2008, unless extended pursuant to express written agreement of the parties. The services agreed upon by the parties in the Consulting Services Agreement have not yet been complete. By the execution of this Supplementary Consulting Services Agreement, the parties hereby desire to extend the term of Consulting Services Agreement until June 30, 2009. The Consulting Services Agreement shall terminate on June 30, 2009, unless the term thereof is extended again pursuant to express written agreement of the parties. 3. Terms of Original Consulting Services Agreement to Remain in Full Force The parties hereby acknowledge and agree that each and every term of the original Consulting Services Agreement of October 18, 2007, including appendices and references, shall remain in full force, except as modified by this Supplemental Consulting Services Agreement. National Economic Research Associates, Inc. By: Name: Title: ~~ cV~ . Jon Wain ight Vice President Date: ,{ Ir.{{ t:? '1 Attest to by:./ ( Date: Z (~) (oCl Augus;~-~chmond By: (j(~ Name: Dek Copenhaver' Title: M or Date JfJlj!;