STAR Bond Market, Econonic & Financial Feasibility Study AGREEMENT BETWEEN THE CITY OF SALINA,KANSAS
and
DEVELOPMENT STRATEGIES,INC.
for
STAR BOND MARKET,ECONOMIC AND FINANCIAL FEASIBILITY STUDY
This Agreement is entered into August 15, 2016, by and between the City of Salina, Kansas, (the "City") and
Development Strategies,Inc.,a Missouri corporation(the"Consultant").
Recitals
A. The City desires to contract for professional consulting services for the purpose of obtaining a market,economic and
financial feasibility study related to the proposed downtown revitalization STAR Bond project, in compliance with federal,
state,and local regulations.
B. The Consultant has the requisite qualifications and experience to perform the services needed by the City and desires
to perform those services pursuant to the terms of this Agreement.
The parties,in consideration of the mutual promises set forth in this Agreement, agree and covenant:
1. Definitions. Capitalized words used in this Agreement shall have the following meanings:
"Agreement" means this Agreement for Star Bond Market, Economic and Financial Feasibility Study, as amended
and supplemented from time to time.
"City"means the City of Salina,Kansas.
"Consultant"means Development Strategies,Inc.and its successors.
2. Exhibits. The following Exhibits are attached to and made a part of this Agreement(Mark with"X" if applicable):
Exhibit A: Responsibilities of the Parties VI
Exhibit B: Term; Schedule
Exhibit C: Basis of Payment
Exhibit D: Insurance Requirements
3. Responsibilities of the Parties. The parties agree to perform the responsibilities outlined in the attached and
incorporated Exhibit A.
4. Term; Schedule. The Consultant agrees to perform its responsibilities during the term and according to the
timeframe and schedule described in Exhibit B, subject to the potential for prior termination pursuant to the terms of this
Agreement.
5. Payment. The City shall pay the Consultant for the performance of its responsibilities pursuant to this Agreement
as set forth in Exhibit C.
6. Insurance Requirements.
6.1. Types and Amount of Coverage.The Consultant agrees to obtain insurance coverage as specified in Exhibit
D, attached hereto, and shall not make any material modification or change from these specifications without the prior
approval of the City. If the Consultant subcontracts any of its obligations under this Agreement, the Consultant shall require
each such subcontractor to obtain insurance coverage as specified in Exhibit D. Failure of the Consultant or its
subcontractors to comply with these requirements shall not be construed as a waiver of these requirements or provisions and
Consultant Services(2015-07-24)
shall not relieve the Consultant of liability.
6.2. Rating. All insurance policies shall be issued by insurance companies rated no less than A-VII in the most
recent "Bests" insurance guide, and admitted in the State of Kansas. Except as otherwise specified in Exhibit D, all such
policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance
involved.
6.3. Certificate of Insurance. The parties acknowledge that the Consultant has provided the City with a
certificate of insurance listing the City as the Certificate Holder and evidencing compliance with the insurance requirements
in this Agreement. The City reserves the right to require complete certified copies of all insurance policies procured by the
Consultant pursuant to this Agreement,including any and all endorsements affecting the coverage required hereunder.
7. Injury to Persons or Damage to Property. The Consultant acknowledges responsibility for any injury to person(s)
or damage to property caused by its employees or agents in the performance of its duties under this Agreement and shall
immediately notify the City's Risk Management Department at (785) 309-5705 in the event of such injury to person(s) or
damage to property.
8. Indemnification. To the fullest extent permitted by law,the Consultant shall indemnify and hold harmless the City,
its agents, representatives, officers, officials and employees from and against all claims, damages, losses and expenses
(including but not limited to attorney fees and court costs) attributable to bodily injury, sickness, disease, death, or injury to,
impairment, or destruction of property, including loss of use resulting therefrom, to the extent that such claims, damages,
losses, and expenses are caused by the wrongful acts, negligent acts, errors, or omissions arising out of or related to the
services of the Consultant, its employees,agents,or any tier of subcontractors in the performance of this Agreement.
9. Responsibility. Subject to the Consultant's obligations under Section 8 of this Agreement, the City assumes all
responsibility for financial and other risks associated with the planning, development, operations & management of the City's
business and Consultant assumes no liability for the City's project. The City agrees to seek independent accounting and legal
services that are necessary for the operation of City's businesses.
10. Consultant Services. The City understands that consultant is a real estate and economic development consulting firm, is
not licensed to sell securities,is not a licensed accounting practice nor licensed to practice law.
11. Voluntary Termination. Either party may terminate this Agreement, with or without cause, upon thirty(30) days
advance written notice to the other party. In the event of such termination, the Consultant shall be compensated for such
services as have been satisfactorily performed through the date of termination, but no compensation shall be earned after the
effective date of the termination.Within five(5)days of any such termination,all fmished or unfinished documents,data,studies,
surveys, drawings, maps, models, photographs, reports or other material prepared by the Consultant pursuant to this Agreement
shall be delivered to the City. Notwithstanding the above, the Consultant shall not be relieved of any liability to the City for
damages sustained by the City by virtue of any breach of this Agreement by the Consultant, and the City may withhold any
payments to the Consultant for the purposes of set-off until such time as the exact amount of damages due the City from the
Consultant may be determined.
12. Default. If either party fails to comply with any term of this Agreement within ten(10) days after written notice to
comply has been mailed by the non-defaulting party to the defaulting party, such failure shall be deemed an immediate
breach of this Agreement("Event of Default").
13. Remedies. Upon the occurrence of an Event of Default, the non-defaulting party shall have the following rights and
remedies,in addition to any other rights and remedies provided under this Agreement or by law:
13.1. Termination. The non-defaulting party shall have the right to terminate this Agreement or
terminate the defaulting party's rights under this Agreement.
13.2. Other Remedies. The non-defaulting party may pursue any available remedy at law or in equity
(including specific performance)by suit,action,mandamus or other proceeding to enforce and compel the performance of the
duties and obligations set forth in this Agreement, to enforce or preserve any other rights or interests of the non-defaulting
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party under this Agreement or otherwise existing at law or in equity and to recover any damages incurred by the non-
defaulting party resulting from such Event of Default.
14. Non-Assignable. Due to the unique qualifications and capabilities of the Consultant, neither the rights nor
responsibilities provided for under this Agreement shall be assignable by either party,either in whole or in part.
15. Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered
personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, commercial
courier or overnight air courier service. Notice shall be considered given when received on the date appearing on the return
receipt,but if the receipt is not returned within five(5)days, then three (3) days after mailed, if sent by registered or certified
mail or commercial courier service; or the next business day, if sent by overnight air courier service. Notices shall be
addressed as appears below for each party,provided that if any party gives notice of a change of name or address, notices to the
giver of that notice shall thereafter be given as demanded in that notice.
CITY: City Clerk
Attn: Michelle Meyer,Director of Finance&Administration
P.O.Box 736
Salina,KS 67402-0736
CONSULTANT: Development Strategies,Inc.
Robert M. Lewis,Principal
10 South Broadway, Suite 1500
St.Louis,MO 63102
16. Retention and Inspection of Records. The Consultant shall maintain complete, accurate, and clearly identifiable
records with respect to all costs and expenses incurred under this Agreement. The records shall be maintained during the
term of this Agreement, and for a period of three (3) years from the date of final payment under this Agreement (the
"Retention Period"); provided, however, that if any litigation, claim or audit is commenced prior to the expiration of the
Retention Period, then the Retention Period shall be extended until all litigation, claims or audit findings have been
completely terminated or resolved, without right of further appeal. During the Retention Period, the Consultant shall allow a
representative of the City during normal business hours to examine,audit,and make transcripts or copies of such records and '
any other documents created pursuant to, or arising under, this Agreement. The City agrees to responsibly utilize all
information obtained pursuant to this paragraph for the purposes of reviewing, confirming, and verifying the nature and
amount of all costs and expenses incurred under this Agreement. The City agrees to take reasonable precautions not to
disclose such information outside the scope of those stated purposes, subject to the Kansas open records act or other
applicable law.
17. Non-appropriation. The City is subject to Kansas budget and cash basis laws, and operates on a calendar fiscal
year. In the event that this Agreement involves financial obligations spanning multiple fiscal years for the City, it is subject
to annual appropriation by the City's governing body for future fiscal years. If the City's governing body does not
appropriate the funds necessary to fulfill the City's financial obligations pursuant to this Agreement, the City shall so notify
the other parties to this Agreement and this Agreement shall be null and void for purposes of the fiscal year(s)affected by the
decision of the governing body not to appropriate.
18. Relationship. It is expressly understood that Consultant in performing services under this Agreement,does so as an
independent contractor. The City shall neither have nor exercise any control or direction over the methods by which
Consultant performs its responsibilities as outlined in Exhibit A. The sole interest and responsibility of the City is to see that
the services covered by this Agreement are performed and rendered in a competent, efficient, and satisfactory manner.
Consultant shall be exclusively responsible for all taxes, withholding payments, employment-based benefits, deferred
compensation plans,including but not limited to its workers compensation and social security obligations,and the filing of all
necessary documents,forms,or returns pertinent to the foregoing.
19. Subcontracting. Consultant shall not subcontract any work or services under this Agreement without the City's
prior written consent.
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20. Compliance with Applicable Law.
Consultant shall comply with all applicable federal, state,and local law in the performance of this Agreement.
21. Equal Opportunity.
(a) In conformity with the Kansas act against discrimination and Chapter 13 of the Salina Code, the Consultant and its
subcontractors,if any,agree that:
(1) The Consultant shall observe the provisions of the Kansas act against discrimination and Chapter 13 of the Salina
Code and in doing so shall not discriminate against any person in the performance of work under this Agreement
because of race,sex,religion,age,color,national origin,ancestry or disability;
(2) The Consultant shall include in all solicitations, or advertisements for employees, the phrase "equal opportunity
employer,"or a similar phrase to be approved by the City's human relations director;
(3) If the Consultant fails to comply with the manner in which the Consultant reports to the Kansas human rights
commission in accordance with the provisions of K.S.A.44-1031 and amendments thereto,the Consultant shall be
deemed to have breached this Agreement and it may be canceled, terminated or suspended, in whole or in part,by
the City;
(4) If the Consultant is found guilty of a violation of Chapter 13 of the Salina Code or the Kansas act against
discrimination under a decision or order of the Salina human relations commission or the Kansas human rights
commission which has become final, the Consultant shall be deemed to have breached this Agreement and it may
be canceled,terminated or suspended,in whole or in part,by the City;
(5) The Consultant shall not discriminate against any employee or applicant for employment in the performance of
this Agreement because of race,sex,religion,age,color,national origin,ancestry or disability; and
(6) The Consultant shall include similar provisions in any subcontract under this Agreement.
(b) The provisions of this section shall not apply to this Agreement if the Consultant:
(1) Employs fewer than four employees during the term of this Agreement;or
(2) Contracts with the City for cumulatively$5,000 or less during the City's calendar fiscal year.
22. Administration of Agreement. All references in this Agreement requiring the City's participation or approval shall
mean the participation or approval of the City Manager or his designee,unless otherwise provided herein.
23. Attorney Fees. If any suit or action is instituted by either party hereunder,including all appeals,the prevailing party in
such suit or action shall be entitled to recover reasonable attorney fees and expenses from the non-prevailing party, in addition to
any other amounts to which it may be entitled.
24. Right to Independent Legal Advice. The Consultant understands and acknowledges the right to have this Agreement
reviewed by legal counsel of the Consultant's choice.
25. Applicable Law;Venue. This Agreement and its validity,construction and performance shall be governed by the laws
of Kansas. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be in the
Saline County,Kansas District Court.
26. Interpretation. This Agreement shall be interpreted according to its fair meaning, and not in favor of or against any
past'.
27. Time. Time is of the essence of this Agreement. No extension will be granted unless in writing and signed by the
parties. Should the end of a time period fall on a legal holiday that termination time shall extend to 5:00 p.m. of the next full
business day.
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28. Severability. The unenforceability,invalidity,or illegality of any provision of this Agreement shall not render the other
provisions unenforceable,invalid,or illegal.
29. Authority and Consent to Transaction. Each party represents to the other that the person executing this Agreement
has full and legal authority to bind such party to the terms of this Agreement, and that the execution and delivery of this
Agreement have been duly and validly authorized by the governing body of each party.
30. Persons Bound. This Agreement shall extend to and bind the heirs, executors, administrators, trustees, successors and
authorized assigns of the parties hereto.
31. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an
original,or in multiple originals,and all such counterparts or originals shall for all purposes constitute one agreement.
32. Amendments.Neither this Agreement nor any of its terms may be changed or modified, waived, or terminated except
by an instrument in writing signed by an authorized representative of the party against whom the enforcement of the change,
waiver,or termination is sought.
33. Waiver. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to
exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of
such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every
term of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
34. Conflict Resolution. No interpretation of this Agreement shall be allowed to find the City has agreed to binding
arbitration.
35. No Third Party Beneficiaries. Solely the parties to this Agreement shall have rights and may make claims under this
Agreement. There are no intended third party beneficiaries under this Agreement, and no third parties shall have any rights or
make any claims hereunder.
36. Typewritten or Handwritten Provisions.Typewritten or handwritten provisions inserted or attached, and initialed by
all parties,shall supersede all conflicting printed provisions.
37. Feminine-Masculine,Singular-Plural. Wherever used,singular shall include the plural,plural the singular,and use of
any gender shall include all genders.
38. Headings. The headings of the sections of this Agreement are included for the purposes of convenience only and
shall not affect the interpretation of any provision hereof.
39. Merger Clause. These terms are intended by the parties as a complete, conclusive and final expression of all the
conditions of their Agreement. No other promises, statements, warranties, agreements or understandings, oral or written, made
before or at the signing thereof,shall be binding unless in writing and signed by all parties and attached hereto.
{Signature Page Follows}
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their authorized
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representatives.
CITY OF SALT 'A,KANSAS
By: y. -
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Attest: A_tt e. V Li
Shan CMC,City Clerk
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DEVELOPME 'T STRATE IES,INC.
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By: at.
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Principal
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EXHIBIT A
RESPONSIBILITIES OF THE PARTIES
The Consultant agrees to perform the responsibilities:
1. Obtain thoroughly review all relevant information about the Plan and its various components.
2. Visit Salina and conduct Stakeholder Interviews.
3. Evaluate local,regional, state, and multi-state macro-economic and macro-demographic forces and
trends—including population/household segmentation analysis.
4. Re-conduct and/or deeply re-evaluate all market,economic,and financial studies conducted to date,
including separate and independent studies (including: financial feasibility modeling, estimates of
economic impact, the pace of market absorption and patronage growth,and projections of tax
collections relevant to supporting STAR Bonds) for:
a. The Fieldhouse,its potential users, and the potential spin-off benefits for lodging and retail sales.
b. The Classic Car Museum, for similar regional attraction purposes.
c. The Alley,also for similar purposes, though it is not intended to attract from surrounding states.
d. The Stiefel Theatre for similar purposes local and nearby regional visitors.
e. The Hilton/Homewood Suites hotel and additional potential hotel room demand from a variety
of sources.
5. Address questions and comments on the revenue projections and their basis received from city
officials and the financial advisors.
6. Prepare formal market, economic,and financial feasibility report suitable for public review and
inclusion with the POS and eventual Official Statement.
7. Prepare and conduct a formal presentation(s) of our findings to appropriate oversight bodies in
Salina and/or state government.
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EXHIBIT B
TERM; SCHEDULE
1. Term. The term of this Agreement shall commence upon execution of this
Agreement by both parties, and shall remain in effect until completion of the services described
in Exhibit A.
2. Schedule. The Consultant shall commence performance of the services and
thereafter complete the performance of services in accordance with the following schedule:
PROJECTED SCHEDULE
DAYS FROM
AUTHORIZATION TO
TASKS PROCEED
1. Review existing information,interim memorandum First 10 business days.
2. Salina site visit Between 10th and 25th business
3. Stakeholder interviews,interim memorandum days, depending on logistics. At
least two nights,parts of three
days,with interviews.
4. Macro-economic and demographic analysis,interim Between 8th and 25th business days.
memorandum
5. Re-conduct and/or re-affirm market studies Between 10th and 50th business
days (up to eight weeks).
6. Address revenue projection questions 51St business day and thereafter,as
needed
7. Prepare formal reports (draft for review, then final) Depends on achieving team
consensus. Allow 10 business days
for preparing draft report.
8. Prepare and conduction formal presentation(s) Depends on scheduling and the
availability of audiences.
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EXHIBIT C
BASIS OF PAYMENT
A. COMPENSATION. The City agrees to compensate the Consultant an amount
not to exceed $62,000.00, on the basis of the actual hourly rates and reimbursable expenses
shown on the Consultant's attached and incorporated fee schedule. The parties acknowledge and
agree that the not-to-exceed sum of$62,000.00 includes Consultant's costs and expenses for two
visits to Salina (at least two nights each visit) for purposes of fulfilling the Consultant's
responsibilities identified in Exhibit A. The Consultant shall be entitled to reimbursement of its
actual expenses for any additional visits to Salina. Such expenses shall primarily include lodging
in Salina hotels, travel costs such as air fare and rental cars, and meals while in Salina. Lesser
expenses for data purchases (if needed) and delivery charges for items sent to persons involved
with this project will also be reimbursable within the terms of this agreement.
B. INVOICING. The Consultant agrees to submit to the City detailed invoices, on a
monthly basis, for work performed and reimbursable expenses actually incurred. The invoices
shall identify the personnel performing the work, the date of the work, the work performed, and
the time required to the one-tenth of an hour. Charges for subcontracted work will be supported
with similar documentation. Charges for reimbursable expenses will specifically identify the
type and amount of each expense in a manner consistent with the classifications of reimbursable
expenses set forth in the attached and incorporated fee schedule.
C. PAYMENT. Invoices will be due and payable within 30 days of receipt by the
City. If the City disputes any items in the Consultant's invoice for any reason, the City may
temporarily delete the disputed item and pay the remaining amount of the invoice. The City will
promptly notify the Consultant and request clarification and/or correction. Following resolution
of any dispute, the Consultant will include the disputed item as resolved on a subsequent invoice.
The Consultant retains the right to assess the City interest at the rate of up to one percent (1%)
per month on undisputed invoices which are not paid within 30 days of receipt by the City.
D. HOURLY RATES. Shown on the table below are the standard hourly billing
rates of the several categories of employees at Development Strategies.
Principal $200/hr.
Associate/Project Mgr. $120/hr.
Researcher/Analyst $85/hr.
Clerical/Support $60/hr.
C-1
EXHIBIT D
INSURANCE REQUIREMENTS
(Consultant Services)
Pursuant to Section 6 of the Agreement, the Consultant shall obtain, pay for, and maintain—
and shall require each of its authorized subcontractors to obtain and maintain—for the duration of
the Agreement,policies of insurance meeting the following requirements:
1. General Requirements.
A. Additional Insured. With the exception of the workers' compensation and
professional liability policies to be obtained by the Consultant hereunder, all policies shall name
the City, its agents, representatives, officers, officials, and employees as additional insured(s).
Insurance for the additional insured shall be as broad as the insurance for the named insured,
including defense expense coverage, and, with respect to the commercial general liability policy
required hereunder, shall be endorsed to apply as primary and non-contributory insurance before
any other insurance or self-insurance, including any deductible, maintained by, or provided to,
the additional insured(s).
B. Waiver of Subrogation. Where allowed by law, all policies will include a waiver
of subrogation in favor of the City, its agents, representatives, officers, officials, and employees.
C. Claims Made Policies. If coverage is written on a claims-made basis for any of
the policies required by this Agreement, the Consultant must maintain the coverage for a
minimum of two (2) years from the date of final completion of all work under the Agreement.
D. Premium and Deductible Expenses. The Consultant shall be responsible for all
premiums and retention or deductible expense for any and all policies required by this
Agreement.
2. Specific Coverage Requirements.
A. Professional Liability — Errors and Omissions. The Consultant shall maintain
professional liability insurance covering errors and omissions, with limits of not less than
$1,000,000. In the event coverage is provided on a claims-made basis, the professional liability
insurance shall be maintained for a period of not less than two (2) years after completion of the
Contract or, in lieu thereof, the Consultant shall purchase tail coverage (extended reporting
period) under which the City shall be afforded protection.
B. Commercial General Liability ("CGL"). The Consultant shall maintain CGL
coverage written on ISO Occurrence form CG00 01 or an industry equivalent, which shall cover
liability arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations,
Contractual Liability, Independent Contractors and Advertising Injury. The policy limits shall
not be less than the following:
• Each occurrence $1,000,000
• General aggregate $2,000,000
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• Personal and Advertising Liability $1,000,000
C. Business Automobile Liability ("BAL"). The Consultant shall maintain BAL
coverage written on ISO form CA 0001 or an industry equivalent. Coverage shall be applicable
to all autos and other vehicles subject to compulsory auto liability laws that are owned, hired,
rented or used by the Consultant and include automobiles not owned by but used on behalf of the
Consultant. The BAL policy limits shall not be less than the following:
• Combined single limit $1,000,000
D. Workers' Compensation/Employer's Liability. The Consultant shall maintain
workers' compensation and employer's liability coverage with policy limits not less than the
following:
• Workers' Compensation (Coverage Part A)
o Statutory
• Employer's Liability (Coverage Part B)
o $100,000 each accident
o $500,000 disease—policy limit
o $100,000 disease—each employee
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