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HomeMy WebLinkAboutContract 41976 CITY SECRETARY CONTRACT NO. I f. IDentifying Customers City of Fort Worth, Texas SCOUT Proposal Understanding of Need OFFICIAL RECORD Buxton Services Overview CITY SECRETARY Scope of Services FT.WORTH,TX Terms Professional Services Agreement Mutual Non-Disclosure Agreement Buxton Community Analytics Sole Source Statement 2651 South Polaris Drive, Fort Worth, TX 76137 - WMW,buxtonco com - 888-26uxton 13u� ' ,ion fDentifying Customers SCOUT Proposal Understanding o At this time Buxton has been asked to develop and provide retail recruitment and retail business retention analysis focused on the residents and workers in the City of Fort Worth. More importantly, Buxton will provide the tools that translate the analysis and identification of the individual consumers that make up each of these distinct consumer populations into insights that are to be used in an ongoing manner to drive strategies for retail recruitment and business retention and expansion. Buxton Services Overview Since 1994 Buxton has been assisting business leaders make informed decisions based on Best of Class Analytics. In 2002 these lessons learned from working with the most prestigious private sector firms in America were adopted to meet the growing needs of municipal leaders to have access to this same level of intelligence. Since, Buxton has worked with more than 500 municipalities in 42 states to assist them in understanding the changing needs and demands of their residents. Buxton is primarily known for the assistance provided to communities seeking to enhance their retail shopping environments, but has also assisted communities in the areas of library optimization, parks & recreation planning, new mover impacts, BRAC analysis, emergency services planning, and other key areas where access to household level data provides significant insights to the changing populations of the municipality. At its core Buxton holds the largest repository of household level information in the United States. Access to this level of detail allows our clients (public and private) to make informed business decisions in areas that affect their customers, residents, patients, or users. Buxton maintains more than 250 individual databases and has built the methodologies and processes to mine the most comprehensive set of household level data available. Buxton's municipal clients have utilized this powerful information to develop retail strategies that have resulted in the recruitment of more than 35 million square feet of retail space, resulting in more than $5 billion in annual sales taking place in markets where it was not occurring prior to the engagement of Buxton. 2651 South Polaris Drive, Fort Worth, TX 76137 - wwvy,b tonco com - 888-213uxton uCustomers. SCOUT Proposal Sco a of Services Increased access to market intelligence SCOUT's base functionality will allow Fort Worth to generate on that supports efforts for business retention the fly reports at any geography on: and recruitment within Fort Worth. . Demographics • Psychographic profiles • Retail supply and demand estimates • Consumer propensities-a merchandising report which reveals your consumers affinity for nearly 5,000 product and service types • Green/Environmental Awareness of residential and workforce populations • Custom variable reporting—most comprehensive set of geographic market variables commercially available, allowing Fort Worth to access and manipulate: • Additional demographic indicators including five year projections and historical census tabulations for 1980, 1990,and 2000 • Business data(employees,land use,industrial divisions, occupation,establishments) • Current year and five year estimates on consumer expenditure,details and summarization,for average consumer expenditures and total expenditures by product. • Retail potential and consumer expenditure estimates by store type,calculated overall and per household • Current year estimates on crime by ten categories • Demographic Dimensions summarizing populations by sixteen socio-economic and ethnic clusters • Environmental Risk Index summarizing frequency and severity across five categories of natural disasters • Financial estimates on assets,debt,debt type,and net worth • Geographic identifiers such as calculation of area in square miles for each geography selected for analysis • Current year and five year estimates for healthcare demand across Diagnostic Related Group cases/charges, Major Diagnostic Codes,and physician office visits by type • Foreclosure estimates • Mosaic segmentation distributions by households and population across adult population,workforce, households,Mosaic Groups,by population,dominant cluster analysis o Current year and five year estimates on occupation/employment estimates 2651 South Polaris Drive, Fort Worth, TX 76137 - WWW.buxtonco com - 888-26uxton quion IDentifying Customers SCOUT Proposal Scone of Services (continued) The ability to effectively understan7el mic Impact-Buxton,through a partnership with EMSI,is impact of new businesses moving td to introduce the addition of Economic Impact modeling to area or to justify,promote and mar -based SCOUT platform. Access to this Input-Output proposed developments through a mic Impact tool will enable simple,straightforward"what- estimation of the impacts of proposed if'scenarios to be performed for any industry to get a sense of activities. how that industry will impact the community Input-output models are constructed on a platform of data indicating interconnectedness of the industries,households and government entities that occupy a given geographic space. Its name stems from the fact that a portion of the output(i.e.sales)of one industry will appear as the input(i.e.purchases)of other industries. The input-output model is used to simulate in turn each of the alternative uses and among its many indicators;the impact of each use on the target occupations is examined. Alternative uses of existing resources,the impact of departing industries,the impacts of new industries,these are but a few of the policy issues addressed by a regional input-output model. 2651 South Polaris Drive, Fort Worth, TX 76137 -lww.buxtonco corm - 888-28uxton n 1Dentifying Customers. SCOUT Proposal Terms Timing SCOUT - Within 5 business days of the execution of this agreement Buxton will establish SCOUT access for one power user(see fees for pricing schedule for additional power users). Fees The fees associated with this total scope of services are scheduled as follows: • $1,250 per month for initial SCOUT power user • Fees cover annual access for 1 SCOUT user. Each additional SCOUT user incurs a monthly fee of$250 • Economic Modeling Specialist, Inc., EMSI, can be deployed in SCOUT for an additional $5,000 annually Optional Services (months 13+) • SCOUT only$1,250 per month • Fees cover annual access for 1 SCOUT user. Each additional SCOUT • EMSI in SCOUT$5,000 annually user incurs a monthly fee of$250 • After month 12 Fort Worth can cancel SCOUT at any time with 30 days notice. Please note that this scope of services and associated fees will be honored through ful 41L 2011. 2651 South Polaris Drive, Fort Worth, TX 76137 -Mam.buxtonco com - 888-28uxton 4u ,iQn IDentifyinomers PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT (the "Agreement"), dated as of June 28, 2011 (the "Effective Date"), is by and between the Buxton Company ("Buxton") a Texas corporation with its principal offices at 2651 South Polaris Drive, Fort Worth, TX 76137, and the City of Fort Worth, Texas, a home-rule municipality of the State of Texas ("Client"). RECITALS A. Buxton is in the business of providing value added customer and site selection solutions, market research,consulting and other related professional services. B. Buxton has submitted to Client and Client has accepted the SCOUT Proposal,dated June 28,2011. C. Client desires to engage Buxton to perform the services described in the SCOUT Proposal. In consideration of the foregoing and of the covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Services Provided. In accordance with the terms and conditions set forth in this Agreement and the SCOUT Proposal (and any amendments thereto), Client hereby engages Buxton, and Buxton hereby accepts such engagement. Buxton agrees to perform its services in a professional, timely and competent manner. If there is a conflict between the terms and conditions of this Agreement and any SCOUT Proposal, the provisions of this Agreement will govern and control. 2. Compensation. Client shall pay Buxton the fees and reimbursements as defined in the SCOUT Proposal. Notwithstanding anything to the contrary herein, in no event shall Client be liable for more than $50,000.00 hereunder unless such additional financial obligations are approved by Client's City Council. If Buxton performs at Client's request, any services not specified in the SCOUT Proposal, Client shall be charged at the rates specified by Buxton and agreed to by Client at such time for such services performed. Unless specified otherwise in the SCOUT Proposal, Buxton will submit an invoice to Client setting forth the services rendered upon completion of Client requested services. All invoices are deemed overdue thirty (30) days after the invoice date. Invoices not timely paid will incur a service charge of one percent(1%)per month. on the outstanding balance or the maximum legal rate allowed by law,whichever is less. 3. Term of Agreement. a• Term. The initial Contract Period will start on the Effective Date of this Agreement and expire on September 30, 2011 ("Basic Term"). This Agreement shall thereafter automatically renew for subsequent one (1) year terms, unless either party provides the other party with written notice of termination at least three (3) months prior to expiration of the Basic Term or any subsequent renewal terms, or unless Client's City Council fails to appropriate funding for this Agreement for any given renewal term, in which case this Agreement will expire on the last day as of which funding has been 2651 South Polaris Drive, Fort Worth, TX 76137 - nnco oom - 888-213uxton 'A PU IDentifying Customers• appropriated. Sections 7, 8, and 13 hereof shall survive the expiration or termination of this Agreement. b. Termination. L Either party may terminate this Agreement if the other party breaches any of the material terms of this Agreement, and the breaching party fails to cure such breach within 30 days after receipt of written notice thereof from the non-breaching party. ii. Either party may cancel this Agreement immediately, without liability, upon the happening of any of the following or any other similar event: (1) insolvency of the other party; (2) filing of any petition by or against the other party under any bankruptcy, reorganization or receivership law; (3) execution of an assignment for the benefit of creditors; or (4) appointment of any trustee or receiver of the other party's business or assets or any part thereof; unless such petition, assignment or appointment is withdrawn or nullified within 15 days of such event. iii. Client may, at its option, terminate this Agreement immediately upon or any time after any breach by Buxton of Section 7 or Section 8d hereof. iv. Upon termination or expiration of this Agreement, (1) Buxton shall provide its services for up to an additional 90 days at the prevailing price agreements unless otherwise negotiated; and (2)Buxton shall return all of Client's property within 10 days of Client's demand for return of the same. 4. Approval. Buxton's services will be subject to the approval of Client as specified in the SCOUT Proposal. 5. Ownership-. a. Buxton will provide its services in accordance with the terms of this Agreement, including the SCOUT Proposal, and Buxton will have sufficient rights in and to the external data used for analysis to permit Buxton to fulfill its obligations under this Agreement. All Client customer, store and prospect data and the deliverables and outputs developed for the Client by Buxton are the sole and exclusive property of the Client. All formulae, processes, systems, machines, compositions of matter (or improvements thereof), computer programs, know-how, discoveries, techniques, drawings, specifications, reports, software and other patentable inventions used to provide the Services are the sole and exclusive property of Buxton. 6. Independent Contractor. Buxton is an independent contractor in the performance of its duties under this Agreement. Accordingly, Buxton shall be responsible for payment of all taxes arising out of Buxton's activities in accordance with this Agreement, including but not limited to federal and state income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or business license fees as required. Nothing contained in this Agreement shall be deemed to create a partnership, joint venture or agency A 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com - 888-213uxton ' Pu, ,ion IDentifying Customers- relationship between the parties,nor does it grant either party any authority to assume or create any obligation on behalf of or in the name of the other. 7. Confidential Information. The terms of the Mutual Non-Disclosure Agreement, by and between Buxton and the Client dated as of June 28, 2011 (the "NDA Agreement") are incorporated herein by reference and are in addition to any other confidentiality terms provided herein. This Section 7 shall govern and control over any conflicting provisions in any SCOUT Proposal. Nothing herein and nothing within the Mutual Non-Disclosure Agreement shall prevent the disclosure of information when required by law. Further, Buxton agrees to assist Client when complying with any applicable requests under the Texas Public Information Act. follows:8. Representations and Warranties of Buxton. Buxton hereby represents and warrants to Client as a. No Conflict with Other Documents. Neither the execution, delivery, nor performance of this Agreement will result in any violation, termination or modification of, or be in conflict with, Buxton's Articles of Incorporation or by-laws, any terms of any contract or other instrument to which Buxton is a party or by which Buxton is bound, or any license, permit,judgment, decree or order applicable to Buxton. b. Authori . The execution, delivery and performance of this Agreement by Buxton has been duly authorized by all requisite corporate approvals, and this Agreement is a valid and legally binding obligation of Buxton, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium or other law affecting the enforcement of creditors' rights generally, and except as specific enforcement and other equitable remedies may be subject to the discretion of a court. C. Standard of Performance. Buxton will perform its services in a timely, competent and professional manner consistent with the customs and practices of its industry. Buxton shall not be in breach of this Agreement and shall have no liability to Client hereunder to the extent that Buxton's failure to perform under this Agreement arises from, or is attributable to, information provided to Buxton by Client that is delayed, incorrect or incomplete. Client acknowledges that third party applications are involved in the services that Buxton is to provide pursuant to this Agreement. Client acknowledges that Buxton cannot customize, design, modify or otherwise alter third party applications. d. Data Security/Confidentiality. With respect to any and all information disclosed by Client to Buxton including, but not limited to, any of Client's customer data or information (collectively, "Client Information"), Buxton shall: (i) assure and guarantee strict confidentiality and security of all Client Information, (ii) not use or disclose any Client Information for any purpose other than the purpose for which Buxton received such Client Information under this Agreement or any SCOUT Proposal and (iii) disclose Client Information only to Buxton's employees whose duties reasonably require access to such Client Information and who have signed a confidentiality agreement with respect to the same. Buxton shall not share any Client Information with any third party without Client's prior written consent to be determined in Client's sole and absolute discretion. Buxton shall not include any Client Information in any 2651 South Polaris Drive, Fort Worth, TX 76137 - Www.b xbnru o com - 888-2Buxton PUi'DientifyingCustomers- modeling or other compilation of data for Buxton's internal purposes or for Buxton's use with any other clients. Buxton also represents and warrants that it currently follows industry best practices as a means to prevent any compromise of its information systems, computer networks, or data files ("Systems") by unauthorized users, viruses, or malicious computer programs which could in turn be propagated via computer networks, email, magnetic media or other means to Client. Buxton agrees to immediately give Client written notice if the security of its Systems are breached or compromised in any way. Buxton shall apply appropriate internal information security practices including, but not limited to, using appropriate firewall and anti-virus software, maintaining such countermeasures, operating systems and other applications with up-to-date virus definitions and security patches;installing and operating security mechanisms in the manner in which they were intended; and permitting only authorized users access to computer systems, applications and related links. Buxton specifically agrees to use up-to-date anti-virus tools to remove known viruses from any email message or data transmitted to Client and prevent unauthorized access to any Client Information and systems via Buxton's networks and access codes. This Section 8d shall govern and control over any conflicting provisions in any SCOUT Proposal. e. Compliance with Laws. In performing under this Agreement, Buxton shall, and each service delivered under this Agreement shall, comply with applicable federal, state and local laws, statutes, ordinances, rules, regulations and codes. f. Intellectual Property^. Buxton's products and services delivered or performed hereunder do not infringe any United States or foreign patent, trademark, trade secret or copyright, or any other proprietary, intellectual property, industrial property, contract or other right held by any third party. Buxton shall defend at its own expense any suit or action brought against Client based on a claim that Buxton's products or services infringe on any patent or copyright or other intellectual property right, and shall pay all costs and damages awarded there-from. If use of any of Buxton's products and/or services is enjoined, Buxton shall at its option and own expense either produce for Client the right to continue to use such product and/or services, or replace it with a substantially equivalent non-infringing product and/or service, or modify such product and/or service so it becomes non-infringing. g. Software Integrity. Buxton has tested any software that will be used by Client with diligent care with the latest tools for viruses, worms, trap doors, back doors, timers, clocks, counters or other limiting routines, instructions or designs that would erase data or programming, otherwise cause anything in which such software is embedded to become inoperable or incapable of being used in the full manner for which it was designed and created or cause any of Client's confidential information (including any of Client's customer data) to be transmitted to a third party ("Disabling Code"). Buxton also warrants that, as a result of these tests, there is no Disabling Code in any such software or any media with such software. h. Additional Warranties. The warranties set forth in this Agreement are in addition to any other warranties made by Buxton including warranties of merchantability and fitness for a particular purpose. 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com - 888-26uxton qu60ait�nqgCustiomiers- 9. Representations and Warranties of Client. Client hereby represents and warrants to Buxton as follows: a. Authori . The execution, delivery and performance of this Agreement by Client has been duly authorized by all requisite corporate approvals, and this Agreement is a valid and legally binding obligation of Client, enforceable in accordance with its terms,except as may be limited by bankruptcy, insolvency, moratorium or other law affecting the enforcement of creditors' rights generally, and except as specific enforcement and other equitable remedies may be subject to the discretion of a court. 10. Limitation of Liability. Except as to Buxton's obligations provided herein under any data security provisions, confidentiality provisions, intellectual property infringement provisions or indemnification provisions, Client hereby expressly agrees that Buxton's liability in connection with the performance of services hereunder and under any SCOUT Proposal, as Client may elect, shall be Buxton's re- performance of such services or Buxton's refunding of any fees Client has paid for such services and certain other costs mutually agreed to by Buxton and Client resulting from Buxton not performing its services in accordance with this Agreement and/or the applicable SCOUT Proposal. EXCLUDING ANY THIRD-PARTY CLAIMS ARISING UNDER ANY INDEMNIFICATION HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES(INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATIONS, LOST BUSINESS OR LOST PROFITS) WHETHER FORSEEABLE OR NOT AND HOWEVER CAUSED. 11. Counterparts. This Agreement may be separately executed in several counterparts, all of which together shall constitute one Agreement, notwithstanding that all signatories have not signed the same counterpart. 12. Governing Law. The parties agree that this Agreement shall be deemed to be a contract made under the laws of the State of Texas without regard to its choice of law rules. Any dispute arising herein shall be brought forth in a court of competent jurisdiction in Tarrant County, Texas. 13. Limited Indemnification a. Buxton agrees that it shall indemnify and hold harmless Client, its subsidiaries, officers, directors, employees and agents and their respective successors and assigns from and against any and all liabilities, claims, demands, damages, expenses (including reasonable attorneys' fees and expenses), fines, penalties, suits, proceedings, actions and causes of action of any kind and nature arising out of or related to the performance by Buxton of services under this Agreement(collectively, "Buxton Losses"). b. Buxton agrees that it shall, upon the request of Client, assume the defense of any judicial action that may arise in connection with Buxton Losses and shall utilize in such defense counsel that is acceptable to Client, acting in its reasonable discretion. 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com - 888-213uxton b ,ion IDe�tifying Customers- c. To the extent permitted by law, Client agrees that it shall indemnify and hold harmless Buxton, its subsidiaries, officers, directors, employees and agents and their respective successors and assigns from and against any and all liabilities, claims, demands, damages, expenses (including reasonable attorneys' fees and expenses), fines, penalties, suits, proceedings, actions and causes of action of any kind and nature arising out of or related to the performance by Client of services under this Agreement (collectively, "Client Losses"). d. To the extent permitted by law, Client agrees that it shall, upon the request of Buxton, assume the defense of any judicial action that may arise in connection with Client Losses and shall utilize in such defense counsel that is acceptable to Buxton, acting in its reasonable discretion. e. Buxton and Client agree that all provisions of this paragraph 13 shall survive the termination of this Agreement. 14. Employment of Buxton/Client Employees. During the Basic Term and any renewal, each party agrees not to recruit and or employ any employee of the other party. 15. Notices. All notices, claims, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by facsimile transmission,or mailed (registered or certified mail,postage prepaid, return receipt requested) a, follows: If to Client: Name Jay Q IOA- Title 'A d- t C0 Cc, De v, Dq Company rily o �t V6 Address c-m o,,f. City, State,Zip FDf -Wo(+ti T,X 7 6 j p 2- Telephone: 817-311-S86* Fax: Email: Jesys. C ap-P fvf4W0Y Ii v,oy If to Buxton: Name: David Glover Title: Chief Financial Officer Address: 2651 South Polaris Drive City, State,Zip: Fort Worth, Texas 76137 Telephone: 817.332.3681 Fax: 817.332.3686 Email: dglover @buxtonco.com 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com - 888-213uxton Ru ,ion IDentifying Customers- or to such other address as the person to whom notice is to be given may have previously furnished to the other in writing in the manner set forth above, provided that notice of a change of address shall be deemed given only upon receipt. 16. Entire Agreement. This Agreement (including Appendices and the Mutual Non- Disclosure Agreement dated June 28, 2011) represents the entire agreement between the parties and are made a part of this Agreement, which are incorporated herein by reference. This Agreement is not subject to change or modification except by written agreement signed by both parties. This Agreement supersedes all prior agreements or assertions, whether oral or written, and this Agreement supersedes all other communications between the parties. 17. Force Majeure. Neither Buxton nor Client shall be in default hereunder by reason of its delay in the performance or failure to perform any of its obligations hereunder if such delay or failure is caused by strikes, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, compliance with governmental laws, rules or regulations, delays in transit or delivery, or any factor beyond its control or without its fault or negligence. Notwithstanding anything to the contrary set forth in this Agreement, if either party's delay in performance or failure to perform persists for at least 10 consecutive days, the non-delaying party shall have the right, in its discretion, to terminate without liability its obligations under this Agreement upon written notice to the affected party. 18. Assignment. Assignment by Buxton of any right, obligation, duty or of any other interest hereunder, in whole or in part, shall require prior written consent of Client. All rights, obligations, duties and interests of any party under this Agreement shall inure to the benefit of and be binding on all successors in interest and assigns of such party and shall survive any acquisition, merger, reorganization or other business combination to which it is a party. 19. No Implied Waivers. Failure by either party at any time to require performance by the other party of any provision hereof shall in no way affect the right to require full performance any time hereafter, nor shall the waiver by either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of same or any other provision,nor constitute a waiver of the provision itself. 20. Requisite Authority. The individuals executing this Agreement on behalf of Buxton and Client, respectively, have all the requisite authority to execute it in the capacities listed herein and have been duly authorized by Buxton and Client, respectively, to execute this Agreement. 21. Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not limit, modify or affect in any way the meaning or interpretation of this Agreement. 22. Neither Party to be Considered Drafter of this Agreement. Neither Buxton nor Client shall be considered to be the drafter of this Agreement or any of its provisions for the purpose of any statute, case law or rule of interpretation or construction that would or might cause any provision to be construed against the drafter of this Agreement. 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com - 888-2Buxton U S ion ►Den,*ing Customers• 23• Severabili - To the extent any provision contained herein is construed to be illegal, invalid, or unenforceable, such provision shall be deemed stricken and deleted from this Agreement to the same extent as if never incorporated herein, but all other provisions of this Agreement and the remaining portion of any provision which is illegal, invalid or unenforceable, in part, shall continue in full force and effect. Notwithstanding the prior sentence, if the deletion of any provision under this section causes a material modification of this Agreement, Buxton and Client agree to terminate this Agreement and negotiate a new agreement to govern their relationship. 24. Governmental Powers It is understood that by execution of the Agreement, Client does not waive or surrender any of its governmental powers or immunities. 25. No Third Party- ghts The provisions and conditions of this Agreement are solely for the benefit of Buxton and Client and are not intended to create any rights, contractual or otherwise, to any other person or entity. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below. Buxton City of Fort Worth,Texas _____...._ UIRE ob Signature Signa re David Glover OFFICIAL RECORD A Ad 11 vi is Printed Name Printed Name CITY SECRETARY FT WORTH, TX CFO Title �SSt�SI—ahf Ci'fy I�luhugcf' Title June 27, 2011 Date cyix 1p+Vo Date Attest by: �► ° _ &d-kotf M.City yc , Ar- 2651 South Polaris Drive, Fort Worth, TX 76137 - VnM,buxtonco oom - 888-213uxton PU lDentifying Customers- MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT("NDA Agreement") dated as of June 27,2011 (the Effective Date"), is by and between the Buxton Company("Buxton"), a Texas corporation with its principal offices at 2651 South Polaris Drive, Fort Worth,TX 76137, and City of Fort Worth, Texas, a home-rule municipality of the State of Texas("Client"). Buxton and Client are referred to individually as a "Disclosing Party" or"Receiving Party"and collectively as the 'Parties". 1. Purpose. In connection with a potential business opportunity, transaction or relationship of mutual interest('Business Relationship"), the Parties desire that the Disclosing Party disclose certain information to the Receiving Party that the Disclosing Party desires the Receiving Party to treat as confidential. 2. Confidential Information. As used herein, "Confidential Information" shall mean any and all information,knowledge and intelligence of any type whatsoever,whether in oral,written or electronic form, relating in any manner to the party possessing,owning and disclosing such information("Disclosing Party"), including,but not limited to, trade secrets, marketing strategies,business strategies, financial information, service information, customer lists, customer information, supplier information,procedures, research,lists, methodologies,software and computer systems, intellectual property, source or object code, contracts, business records, and know-how;provided,however, any information that is either(i)generally known by, or available to, the public,(ii) was available to the Receiving Party from a source other than the Disclosing Party who was authorized to disclose such information,or(iii)is otherwise independently known to, or developed by,the Receiving Party without reference to the Disclosing Party's Confidential Information, shall not be considered Confidential Information. The Disclosing Party shall not have any obligation to specifically identify any information to which the protection of this NDA Agreement applies by any notice or other action. Each Party acknowledges that the Disclosing Party has delivered,is delivering, or will deliver Confidential Information to the Receiving Party in reliance upon the promises, agreements and undertakings contained in this NDA Agreement, and on the continuing condition that the Parties fully comply with such promises, agreements and covenants 3. Non-use and Non-disclosure. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose except to evaluate and engage in discussions concerning the Business Relationship. The Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party's Confidential Information and which are provided to the Receiving Party under this NDA Agreement. The Receiving Party agrees not to disclose any Confidential Information of the Disclosing Party to third parties except to those employees,agents and consultants(the "Representatives") of the Receiving Party who have a bona fide need to know the information in order to evaluate or engage in discussions on behalf of the Receiving Party concerning the Business Relationship. The Receiving Party shall take reasonable measures to ensure that its Representatives comply with the obligations contained in this NDA Agreement and shall be liable to the Disclosing Party for any breach by it or its Representatives of confidentiality with respect to the Disclosing Party's Confidential Information. 2651 South Polaris Drive, Fort Worth, TX 76137 - - 888-2Buxton ` 4u IDentifying Customers, 4. Maintenance of Confidentiality. The Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party. Without limiting the foregoing, the Receiving Party shall take at least those measures that it takes to protect its own most highly confidential information. The Receiving Party shall not make any copies of the Confidential Information of the Disclosing Party except for the purpose contemplated hereby. The Receiving Party shall reproduce the Disclosing Partiys proprietary rights notices on any such copies,in the same manner in which such notices were set forth in or on the original. 5. No Obligation. Nothing herein shall obligate either Party to proceed with the Business Relationship or any transaction between the Parties, and each Party reserves the right,in its sole discretion, to terminate the discussions contemplated by this NDA Agreement concerning the business opportunity. 6. No Warranty. ALL CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED "AS IS". THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION. 7. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by the Disclosing Party to the Receiving Party, and all copies thereof which are in the possession of the Receiving Party,shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party upon the Disclosing PartYs request. 8. No License. Nothing in this NDA Agreement is intended to grant any rights to the Receiving Party under any patent,mask work right or copyright of the Disclosing Party,nor shall this NDA Agreement grant the Receiving Party any rights in or to the Confidential Information of the Disclosing Party except as expressly set forth herein. 9. Term. The confidentiality obligations of the Receiving Party hereunder shall survive this NDA Agreement. 10. Remedies. Each Party agrees that any violation or threatened violation of this NDA Agreement may cause irreparable injury to the other Party,entitling the other Party to seek injunctive relief in addition to all legal remedies. 11. Miscellaneous. This NDA Agreement shall bind and inure to the benefit of the Parties and their successors and assigns. This NDA Agreement shall be governed by the laws of the State of Texas, without reference to conflict of laws principles. Any dispute arising herein shall be brought forth in a court of competent jurisdiction in Tarrant County, Texas. This document contains the entire agreement between the Parties with respect to the subject matter of this NDA Agreement and neither Party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other Party except as set forth in this NDA Agreement. Any failure to enforce any 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com - 888-28uxton PU�' IDentifying Customers provision of this NDA Agreement shall not constitute a waiver of that provision or of any other provision. This NDA Agreement may not be amended,nor any obligation waived, except by a writing signed by both Parties. 12. Public Information Laws Buxton understands and agrees that Client is subject to the public information laws set forth in Chapter 552,Texas Government Code. If a third party requests release by Client of any Confidential Information hereunder,Client will notify Buxton and use reasonable efforts to file an objection with the Texas Attorney General's Office. If the Attorney General rules that Client must release Confidential Information hereunder,Client, at no cost to Client,will cooperate with Buxton if Buxton wishes to contest the ruling. 13. Governmental Powers It is understood that by execution of this Agreement, Client does not waive or surrender any of its governmental powers or immunities. 14. No Third Party Rights The provisions and conditions of this Agreement are solely for the benefit of Buxton and Client and are not intended to create any rights, contractual or otherwise, to any other person or entity. IN WITNESS WHEREOF, the parties hereto have executed this NDA Agreement as of the date set forth below. Buxton Co any City of Fort Worth,Texas NO M&C "QU1RED -� By: By: Q -- OFFICIAL REC ORD Name: David Glover CIrr SECRETARY Name: U S u V1 a y1 i s � WORTHY 7'X Title: Chief Financial Officer Title: ,�S S 1S5+A V1-)- C l l M av►a y e r Date: Tune 27, 2011 Date: I asj I 00 i-EGALITY. Wa , :o, ;�, _,aty - d�C U 0 0 j T ..p `1 c AT Q9) .EV A )t-c°o f 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com com - 888-26uxton lu ,ion IDentifying Customers- Buxton Community Analytics Sole Source Statement Since its founding in 1994,Buxton has been a leading force in customer analytics. Buxton began as a service to help retailers make informed location decisions by understanding their customers and precisely determining their markets. Buxton leaders soon realized that the company's expertise in location and market analysis could also be leveraged to benefit communities desiring retail expansion.Buxton's presence in the public sector was established in 2001 with a simple but powerful mission to provide communities with information and marketing tools to expand their retail base. Unique Proprietary Analytic Methodologies Developed Across Key Industries Over time Buxton's unique and proprietary core analytic methodologies have evolved to answer increasingly complex business and operational questions in the retail,restaurant,grocery,healthcare,business to business,and consumer packaged goods industries. Buxton's public sector clients have benefited from this ongoing evolution and take advantage of the same caliber of tools,allocation models,and analytics that have proven invaluable in the private sector as foundations upon which multi-million dollar decisions are made. Exclusive Access to Best in Class Data through Strategic Partnerships The effectiveness of Buxton's unique and proprietary analytic methodologies is further extended by Buxton's ability to build and maintain an expansive data warehouse of consumer and business data. In total Buxton blends information from over 250 data sources into this data warehouse. The core of this data warehouse is comprised of a real time point- level household file on over 112 million U.S.households with coverage on up to eight individuals within each household. This household level data set is completely updated every eight weeks and is made exclusively available to Buxton for the purposes of market planning and marketing services through Buxton's partnership with Experian,the worlds leading provider of consumer level data. Holistic Public Sector Solutions—Providing public sector leadership with insights for timely,sustainable and effective decision making, Community Analytics offers unique capabilities to client communities in the following areas: • Economic Development—Buxton has in place proven tools for retail recruitment and local business retention and expansion. Retail Recruitment:Buxton provides a targeted marketing system specifically designed as a retail development program to complement and expand traditional economic development efforts. To date Buxton has modeled the trade areas of over 5,000 national and regional retail chains as part of the ongoing effort to help its client cities recruit,to date, over 30 million square feet of retail,restaurant,and grocery space. Business Retention and Expansion: Buxton simultaneously provides localized consumer analytics on service and brand affinity for over 4,500 retail and service line items. These consumer insights are implemented by the existing local business community to improve their performance and thereby increase their contribution to the local economy. 2651 South Polaris Drive, Fort Worth, TX 76137 - www.buxtonco.com - 888-2Buxton Bu . Mentifying Customers- • City Services—Buxton builds models for city managers and department directors that guide operating,marketing,and location decisions for more efficient and effective delivery of service to their citizens. These models are also used to save money by consolidating resources and prioritizing the expansion of services into areas of greatest need. • Planning Insights—Buxton clients are able to employ real-time household level data for the purpose of tracking and understanding the changing dynamics of their cities and the neighborhoods within. These granular insights are serving as a revolutionary tool,allowing senior city management and planners the ability to keep their initiatives relevant and in lock step with the emerging needs of the public they serve. • Visitors/Tourism/Convention—For cities with marketable Visitors/Tourism/Convention assets Buxton's customer analytics capabilities prove to be a valuable force multiplier to drive more value from those assets. Buxton offers the ability to profile your visitors,target market your core visitor types at the household/business level,understand and know your core visitor geographic draw,align your local businesses to the consumer preferences of your visitors. • Healthcare Needs-Buxton provides forward thinking communities with yearly assessments of their current and future healthcare needs. With these assessments communities are collaborating with healthcare providers to ensure that the needs of their citizens will be met locally. This is keeping cities poised for growth and proactively engaged in the retention of their aging boomer populations. Based on the unique capabilities detailed above,there are no known competitors that can give a community the level of services,depth of research and technical expertise provided by Buxton. You are invited to learn more about Buxton's solutions and experience across all industries at our website, www.buxtonco.com. There you will be able to access case studies and client testimonials that further highlight the unique nature and value of Buxton's services. t 2651 South Polaris Drive, Fort Worth,TX 76137 - www.buxtonco.com - 888-2Buxton ,: