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CONSULTING SERVICES AGREEMENT BETWEEN

THE CITY OF BRYAN AND

SPORTS FACILITIES MANAGEMENT, LLC

This CONSULTING SERVICES AGREEMENT (“Agreement”) is made as of May 13, 2020 (the “Effective Date”), by and between City of Bryan, a home rule municipal corporation organized under the laws of the State of Texas (“City”), and Sports Facilities Management, LLC, a Florida limited liability company (“SFM”), having its principal place of business at 600 Cleveland Street, Suite 900, Clearwater, Florida 33755, for consulting services in connection with the planning, design, construction and FF&E procurement for a sports center, amphitheater and ball fields to be located at the Travis Bryan Park (the “Facilities” or “Project”). City and SFM may be collectively referred to as the “Parties” or individually as a “Party”.

1. Description of Services. SFM shall provide to City the services described in the Scope of Work, attached hereto as Exhibit “A”, and incorporated herein ( the “Services”), at the time and place and in the manner specified therein, and with respect to the FF&E listed in Exhibit “B”, attached hereto and incorporated herein. 1.1 Standard of Performance. SFM agrees to use its best professional efforts, skill, judgement, and abilities to perform all services required pursuant to this Agreement in a timely and competent manner, and according to the standards of performance observed by a competent professional in the industry in which SFM is herein engaged. 1.2 Time is of the Essence. SFM shall devote such time and qualified personnel to the performance of the Services pursuant to this Agreement as may be reasonably necessary to timely finish the Scope of Work, to meet the standard of performance provided in Section 1.1 above, and to satisfy SFM’s obligations hereunder.

1.3 Correction of Work. SFM’s services shall be accurate and free from material errors or omissions. Upon notice, SFM shall promptly correct any known or discovered error, omission, or other defect without any additional cost or expense to City. 1.4 Compliance with Applicable Laws. SFM shall perform services under this Agreement in compliance with all applicable federal, state, and local laws, regulations, codes, ordinances, and orders, and with those of any other body having jurisdiction over the Project. 1.5 Duty to Coordinate Services and Cooperate with Other Party. SFM shall exercise its best efforts to coordinate all of its duties and responsibilities with City, the Design-Build Contractor and other consultants, so as to work in harmony and cooperation with all Project participants. SFM agrees to attend and participate in all Project team meetings, and any other meetings, if requested to do so by the City’s Representative or the Design-Build Contractor. 1.6 Attend Project Meetings. SFM will attend and participate in Project team meetings and any other meetings for the Project, if specifically requested to do so by City’s Representative

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or the Design-Build Contractor.

1.7 Reporting. SFM shall regularly report, but no less than monthly during the Term, on the progress of completion of tasks to the City’s Representative or any other person designated by City’s Representative. 2. City Responsibilities. 2.1 Project Plans. City shall provide to SFM the design and construction plans, specifications, and schedule for the Project as they are issued by the Design-Build Contractor, including all updates and revisions, thereto. 2.2 City Representative. City hereby designates Frank Clark, City of Bryan Business Liaison, as its representative authorized to act in the City’s behalf with respect to the Project and for the purposes of administering this Agreement. City may by written notice given under this Agreement, change its designated representative. 2.3 Time for Response. City shall endeavor to furnish required information and services, and render approvals and decisions as expeditiously as necessary for the orderly progress of SFM’s services and the Project. 2.4 Cooperation. City will exercise its best efforts to encourage, promote, and facilitate cooperation between the Design Build team and SRM in the performance of its duties and responsibilities.

2.5 Administrative Services. City shall furnish all legal, accounting, auditing and insurance counseling services for itself as may be necessary for the Project. 2.6 FF&E Procurement and Installation. Procurement and installation costs of the FF&E identified in Exhibit B shall be the responsibility of the City. 3. Term. The term of this Agreement shall begin on the Effective Date and shall end on the last day of the 16th month following the Effective Date (“Term”), and SFM shall complete the work described in Exhibit “A” on or before that date, unless the term of the Agreement is otherwise extended in writing by mutual agreement of the parties, or terminated as provided in Section 9. The time provided to SFM to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement as referenced in Section 7. 4. Compensation. During the Term of this Agreement, except in the event of a duly authorized change order, total payment to SFM for all services and authorized reimbursable expenses under this Agreement shall not exceed Three Hundred Forty-Three Thousand Five Hundred Dollars ($343,500) (the “Maximum Total Contract Amount”). Payments shall be made as set forth below. SFM shall be paid in accordance with Chapter 2251 of the Texas Government Code, also known as the "Prompt Payment Act". Nothing contained in this Agreement shall require City to pay for any work that is unsatisfactory as determined by City or which is not

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submitted in compliance with the terms of this Agreement. City will not be required to make any payments to SFM when SFM is in default under this Agreement, nor shall this paragraph constitute a waiver of any right, at law or in equity, which City may have if SFM is in default, including the right to bring legal action for damages or for specific performance under this Agreement.

4.1 Fee. City agrees to a fixed, flat fee in the total amount of Three Hundred Twenty-One Thousand Dollars ($321,000.00) for SFM’s performance of the Services under this Agreement. The Fee shall be paid by City to SFM as follows:

(i) Seventy-Five Thousand Dollars ($75,000) shall be due and payable upon

execution of this Agreement. (ii) The remaining Two Hundred Forty-Six Thousand Dollars ($246,000.00) shall

be payable in fifteen (15) equal monthly installment payments of Sixteen Thousand Four Hundred Dollars ($16,400.00), (pro-rated for any partial month resulting from the termination of the Term prior to its expiration or otherwise) due on the 1st day of each month following the execution of this Agreement.

4.2 Supplies and Equipment. SFM shall be responsible for furnishing, at its expense, all equipment and supplies necessary for its provision of the Services hereunder. 4.3 Reimbursable Travel Expenses. In addition to the Fee payable to SFM under Section 4.1 above, City agrees to reimburse SFM for certain out-of-pocket travel expenses reasonably incurred in the performance of its duties under this Agreement, to include airfare, hotel accommodations, ground transportation and associated fees (parking, tolls, etc.), and meals per traveling consultant in accordance with the travel and reimbursement policies of the City applicable to city personnel. Reimbursable expenses shall be limited to actual travel expenditures, payable in accordance with City of Bryan travel policies, which are reasonably necessary for the proper completion of the Services under this Agreement, and shall only be payable if specifically authorized in advance in writing by City. Reimbursable travel expenses shall be invoiced to the City nor more frequently than once a month, and shall be due and payable by City within thirty (30) days of the receipt of an invoice with appropriate backup documentation satisfactory to the City, and in accordance with City policies. 4.4 Additional Services. All Additional Services, to include the cost thereof, shall be listed in Exhibit “C”, hereto. Additional Services shall be provided by SFM if authorized or confirmed in writing by City. Except in the event of a duly authorized change order, the cost of Additional Services shall be included in the not-to-exceed Total Compensation for this Agreement. Any further services, shall require an amendment to this Agreement be negotiated, approved and executed in writing by both Parties. Additional Services shall not include 4.5 Limited to Maximum Total Contract Amount. It is the responsibility of SFM not to provide services or submit invoices that exceed the Maximum Total Contract Amount. Services provided, and/or expense incurred that exceed the Maximum Total Contract Amount without City’s written consent will be at SFM’s financial risk and City shall not be obligated to pay for

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any such services or expenses. 5. Indemnification: 5.1 To the fullest extent permitted by law, the SFM shall defend, indemnify and hold City’s officers, directors, members, representatives, elected and appointed officials, agents and employees (collectively, the “Indemnitees”) harmless from and against all claims, damages, losses and expenses, including, but not limited to, attorneys’ fees, costs and expenses of litigation, arising out of or resulting from the negligent performance of SFM’s services and the breach of any provision of this Agreement. SFM’s obligations under this Section will survive the expiration or earlier termination of this Agreement.

5.2 The City cannot and by this Agreement does not agree to indemnify, hold harmless, exonerate or assume the defense of SFM or any other person or entity whatsoever. 6. Insurance. Before beginning any work under this Agreement, SFM, at its own cost and expense, shall procure the types and amounts of insurance as set forth in Exhibit D, and in compliance with all requirements contained therein. as SFM shall maintain all required insurance and comply with all limits of liability and other requirements in accordance with Exhibit “D” for the duration of this Agreement. 7. Termination. 7.1 Termination for Cause. This Agreement may be terminated by either party upon twenty (20) days’ written notice should the other party fail to substantially perform in accordance with its terms through no fault of the terminating party and such failure is not fully cured prior to the expiration of the twenty (20) day notice period. The non-breaching party may seek all remedies available to it, including specific performance and damages related to the breach, including attorneys’ fees, costs and expenses. 7.2 Termination for Convenience. This agreement may be terminated for convenience by the City in whole or in part, upon at least sixty (60) days’ written notice to SFM. After receiving notice of termination for convenience, SFM shall, unless the notice directs otherwise, immediately discontinue the services under this Agreement. 7.3 Compensation. If City exercises its right to terminate this Agreement for its convenience, SFM shall be entitled to compensation for all services satisfactorily performed as of the termination date, and shall be paid upon termination its regular fixed monthly installment payment for the termination month, which payment shall be pro-rated to the date of termination for any partial month resulting from the termination of the Term prior to its expiration, or otherwise, together with any approved Reimbursable Expenses incurred until the date of termination. SFM must deliver to City invoices and other required supporting documentation as required for payment of Reimbursable Expenses, along with all reports, documents and other materials prepared by SFM prior to termination.

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8. Notices. Unless otherwise provided in this Agreement, all demands, notices, approvals, consents, requests, and other communications under this Agreement must be in writing and will be deemed to have been given when (i) delivered in person, (ii) delivered by Federal Express or a comparable express courier service, or (iii) mailed by registered or certified mail, postage prepaid, addressed, as follows:

If to City: City of Bryan, TX Attention: City Manager 300 S. Texas Avenue, Suite Bryan, Texas 77803

With a copy to: City Attorney City of Bryan 300 S. Texas Avenue, Suite 214 Bryan, Texas 77803 If to SFM: Sports Facilities Management, LLC Attention. Jason Clement, Manager 600 Cleveland Street, Suite 910 Clearwater, FL 33755 With copy to: Bruce Rector, General Counsel Sports Facilities Management, LLC 600 Cleveland St., Suite 910 Clearwater, FL 33755 The City and SFM may, by written notice given under this Agreement, designate any additional or different addresses or persons to which subsequent demands, notices, approvals, consents, requests, or other communications are to be sent. 9. Ownership and Use of Documents. 9.1 All Project drawings, design schematics, specifications, and other documents produced by SFM under this Agreement are the property of the City. Upon request of the City, SFM shall provide City high quality reproducible copies of all drawings, design schematics, specifications, and other documents in the format and on the media designated by City. 9.2 Should SFM’s engagement under this Agreement be terminated, SFM shall provide City copies of the Project drawings, design schematics, specifications, or other documents prepared by SFM within fourteen (14) calendar days of the termination notice. Copies will be in the format designated by the City. 10. Books and Records. SFM shall maintain all books and records respecting matters under this Agreement for a period of four (4) years after final payment under the Agreement. SFM’s obligations under this Section, shall survive the expiration or earlier termination of this Agreement.

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11. Right to Audit. City and its duly appointed representatives shall have the right to examine, audit, and copy such books and records during business hours on seven (7) calendar days’ notice in Bryan, Texas. SFM’s obligations under this Section, shall survive the expiration or earlier termination of this Agreement. 12. Miscellaneous Provisions. 12.1 Entire Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersedes all other negotiations, understandings, and representations (if any) made by and between such parties. 12.2 Amendment. This Agreement may be amended or modified only by a writing signed by both parties. 12.3 Applicable Law, Venue, and Jurisdiction. This Agreement shall be construed and interpreted in accordance with, and shall be governed by, the laws of the State of Texas, and venue shall lie in Brazos County Texas. The parties agree that if the District Court of Brazos County, Texas does not have jurisdiction, the United States District Court, Southern District of Texas, Houston Division shall have jurisdiction of any litigation between the parties relating to this Agreement. 12.4 Assignment and Subcontracting. SFM shall not assign its interest in this Agreement nor delegate any of its duties hereunder, without the prior written consent of City. If SFM attempts to make such an assignment, the purported assignment shall be void ab initio and SFM shall nevertheless remain legally responsible for all obligations under this Agreement, unless otherwise agreed to in writing by City. 12.5 Third Parties. This Agreement is solely for the benefit of the parties hereto and not for the benefit of any third party. None of the obligations under this Agreement of either party shall run to or be enforceable by any party other than the parties to this Agreement. 12.6 Independent Contractor. It is understood and agreed that SFM is at all times an independent contractor to City. SFM is not an agent or employee of City and has no authority (express or implied) to contract for or bind City.

12.7 Binding Agreement. The terms and conditions of this Agreement shall be binding upon both Parties, their partners, successors, assigns and legal representatives

12.8 No Waiver of Performance. The failure of either Party to insist, in any one or more instances, on the performance of any of the terms, covenants or conditions of this Agreement, or to exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant, condition or right with respect to further performance or any other term, covenant, condition or right. 12.9 No Presumption Regarding Drafter. The Parties expressly agree that this Agreement was jointly drafted, and that both had opportunity to negotiate its terms and to obtain the assistance of

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counsel in reviewing its terms prior to execution. Therefore, no presumption for or against the drafter shall be applicable in interpreting or enforcing this Agreement. 12.10 Severability. The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision. 12.11 Attorneys' Fees. In the event of a dispute involving the nonperformance by a party hereto of its obligations under this Agreement, the prevailing party in a suit brought hereunder shall be entitled to reasonable attorneys' fees and court costs as allowed by law.

12.12 Titles and Grouping. The titles given to the articles of this Agreement are for ease of reference only and shall not be relied upon or cited for any other purpose. The grouping of the articles in this Agreement are solely for the purpose of convenient organization and in no event shall the grouping of provisions, the use of sections, or the use of headings, be construed to limit or alter the meaning of any provisions. 12.13 Authority. The parties represent for themselves that (a) such party is duly organized and validly existing, (b) the person or persons executing this Agreement on behalf of such party is/are duly authorized to execute and deliver this Agreement on behalf of such party, (c) by so executing this Agreement, such party is formally bound to the terms and provisions of this Agreement, and (d) the execution of this Agreement does not violate any provision of any other agreement to which such party is bound. 12.14 Non-Appropriation. Notwithstanding any provision herein to the contrary, the City’s obligations under this Agreement are subject to annual appropriation. The payment obligations of the City made hereunder shall be paid solely from lawfully available funds, that have been annually appropriated by City. Under no circumstances shall the obligations of City hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. 12.15 Exhibits. All exhibits attached to this Agreement are incorporated herein by reference. The Exhibits are as follows: Exhibit “A” Scope of Work Exhibit “B” FF&E List Exhibit “C” Additional Services - Cost Matrix Exhibit “D” Insurance Requirements

[Signature page follows]

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THE UNDERSIGNED AUTHORIZED REPRESETNTATIVES OF THE PARTIES have executed this Agreement as of the Effective Date set forth in the preamble above. CITY: SFM: CITY OF BRYAN SPORTS FACILITIES MANAGEMENT, LLC ________________________ _____________________________ Andrew Nelson, Mayor Jason Clement, Manager ATTEST: APPROVED AS TO FORM: ___________________________ ________________________ Mary Lynne Stratta, City Secretary Bruce Rector, General Counsel Sports Facilities Management, LLC APPROVED AS TO FORM: _____________________ Janis K. Hampton, City Attorney

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EXHIBIT “A”

SCOPE OF WORK

A. Selection and Procurement of FF&E listed on Exhibit “B”:

SFM will work with the Architect and Design Build Contractor to plan the procurement, shipping, delivery, storage, protection, and installation of the furniture, fixtures, and equipment for the Project set forth in Exhibit B hereto. SFM will become and remain familiar with the design and construction plans and specifications for the Project as they are issued by the Design-Builder and shall confer with the Design-Builder, its subcontractors, and consultants, as reasonably necessary, for SFM to carry out its duties as identified in Exhibit B. SFM shall become and remain familiar with Texas public procurement laws and the City’s procurement rules, policies, and practices, and shall timely provide competent advice and recommendations to City to facilitate the orderly, timely, and efficient procurement, delivery, and installation of the furniture, fixtures, and equipment that City is responsible for ordering and providing for the Project. Upon request, SFM shall assist City in developing, issuing, and reviewing, each procurement bid for furniture, fixtures, and equipment. SFM shall manage the procurement, shipping, installation, unloading, and stocking of all FF&E, listed on Exhibit B.

B. Services Related to Project Phases:

Stage 1 | Project Kick-off Meeting SFM will become familiar with the Project and City’s requirements; in particular with operational policies, site conditions, and activities of other consultants. SFM will receive all relevant and necessary information and overall budget from City and specialist consultants in order to prepare listings. Stage 2 | Budgeting & Schedule Finalization SFM will create a FF&E budget based upon the scope listed in Exhibit B based upon expected programming and pro forma. SFM will deliver detailed time lines based on operational and construction milestones. Stage 3 | FF&E & Venue Design SFM will create project specific specifications, necessary design schematics, and provide design support for FF&E listed in Exhibit B. SFM will provide feedback regarding design outside of FF&E as needed.

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Stage 4| Tendering and Cost Adjudication With City approval on the budgets, project time-lines, and FF&E specifications, SFM will publish and distribute RFP’s and specifications and provide advice concerning suitable suppliers for the FF&E listed in Exhibit “B”. Stage 5| FF&E Recommendations SFM will collect and provide reviews of proposals received along with an initial recommendation. SFM will perform necessary scope reviews with suppliers SFM will organize supplier appointments, samples, and presentations as needed. Stage 6| PO generation, Production, Freight Management and Delivery Scheduling Upon selection of vendor by City, SFM will provide the design and construction team with contact information, specification, and selection information. SFM will then coordinate PO, Production, and logistics on behalf of the City. Stage 7| Receipt of Goods & Inventory Management SFM will coordinate the shipping, clearing, receiving, and delivering with the Design Build Contractor and City Representative, and in accordance with the construction schedule. Stage 8| Installation & Hand-over SFM will coordinate the installation sometimes through the supplier and with the Design Build Contractor General Contractor and in accordance with the construction schedule. Stage 9 | Final Accounts Upon completion of installation, SFM will review all invoices from suppliers, identify with relevant orders, and recommend approval of settlement. SFM will coordinate preparing the Purchasing Manual for items identified in Exhibit B.

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EXHIBIT “B”

FF&E LIST

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EXHIBIT “C”

ADDITIONAL SERVICES-COST MATRIX

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EXHIBIT D

INSURANCE REQUIREMENTS SFM agrees to maintain the minimum insurance coverage and comply with each condition set forth below

during the duration of this Agreement with City. All parties to this Agreement hereby agree that SFM's

coverage will be primary in the event of a loss, regardless of the application of any other insurance or self-

insurance.

SFM must deliver to City a certificate(s) of insurance evidencing such policies are in full force and effect

within 10 business days of notification of the City Council’s approval of the Agreement. No Agreement shall

be effective until the required certificate(s) have been received and approved by City. Failure to meet the

insurance requirements and provide the required certificate(s) and any necessary endorsements within 10

business days may cause the Agreement to be terminated.

The City reserves the right to review these requirements and to modify insurance coverage and their limits

when deemed necessary and prudent.

A. Workers’ Compensation Insurance & Employers Liability Insurance. SFM shall maintain Workers’

Compensation insurance for statutory limits and Employers Liability insurance with limits not less than

$500,000 each accident for bodily injury by accident or $500,000 each employee for bodily injury by disease.

SFM shall provide Waiver of Subrogation in favor of City and its agents, officers, officials, and employees.

B. Commercial General Liability Insurance. SFM shall maintain Commercial General Liability (CGL)

with a limit of not less than $1,000,000 per occurrence and an annual aggregate of at least $2,000,000. CGL

shall be written on a standard ISO “occurrence” form (or a substitute form providing equivalent coverage)

and shall cover liability arising from premises, operations, independent SFM, products-completed operations,

personal and advertising injury, and liability assumed under an insured Contract including the tort liability of

another assumed in a business Contract. No coverage shall be deleted from the standard policy without

notification of individual exclusions and acceptance by City. The City of Bryan shall be listed as an

additional insured.

C. Business Automobile Liability Insurance. SFM shall maintain Business Automobile Liability

insurance with a limit of not less than $1,000,000 each accident. Business Auto Liability shall be written on

a standard ISO version Business Automobile Liability, or its equivalent, providing coverage for all owned,

non-owned and hired automobiles. SFM shall provide Waiver of Subrogation in favor of the City of Bryan.

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D. Policy Limits. Required limits may be satisfied by a combination of primary and umbrella or excess

liability policies. SFM agrees to endorse and its agents, officers, officials, and employees as an additional

insured, unless the Certificate states the Umbrella or Excess Liability provides coverage on a pure “True

Follow Form” basis.

E. Deductibles, Coinsurance Penalties & Self-Insured Retention. SFM may maintain reasonable and

customary deductibles, subject to approval by City. SFM shall agree to be fully and solely responsible for

any costs or expenses as a result of a coverage deductible, coinsurance penalty, or self-insured retention.

F. SFM’s Authorized Contractors and Subcontractors. If SFM’s insurance does not afford coverage on

behalf of any Contractors and/or Subcontractor(s) hired by SFM to perform work on the Project, the

Contractors/Subcontractors(s) shall maintain insurance coverage equal to that required of SFM during the

term of its work on the Project. It is the responsibility of SFM to assure compliance with this provision. The

City accepts no responsibility arising from the conduct, or lack of conduct, of SFM’s Contractor or any

Subcontractor.

G. Acceptability of Insurers. Insurance coverage shall be provided by companies admitted to do

business in Texas and rated A-:VI or better by AM Best Insurance Rating.

H. Evidence of Insurance. A valid certificate of insurance verifying each of the coverages required shall

be issued directly to the City within 10 business days by the successful SFM’s insurance agent or insurance

company after Agreement award. Endorsements must be submitted with the certificate. No Agreement shall

be effective until the required certificates have been received and approved by the City. Renewal certificates

shall be sent a minimum of 10 days prior to coverage expiration. Upon request, SFM shall furnish the City

with certified copies of all insurance policies.

The certificate of insurance and all notices shall be sent to:

City of Bryan

City Manager

PO Box 1000

Bryan, TX 77805

Email to: Executiveservices@bryantx.gov

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Failure of the City to demand evidence of full compliance with these insurance requirements or failure of

the City to identify a deficiency shall not be construed as a waiver of SFM’s obligation to maintain such

insurance.

I. Notice of Cancellation, Non-renewal, Material Change, Exhaustion of Limits. SFM must provide

minimum 30 days prior written notice to the City of policy cancellation, material change, exhaustion of

aggregate limits, or intent not to renew insurance coverage. If City is notified a required insurance coverage

will cancel or non-renew during the Agreement period, SFM shall agree to furnish prior to the expiration of

such insurance, a new or revised certificate(s) as proof that equal and like coverage is in effect. The City

reserves the right to withhold payment to SFM until coverage is reinstated.

J. SFM’s Failure to Maintain Insurance. If SFM fails to maintain the required insurance, the City

shall have the right, but not the obligation, to withhold payment to SFM until coverage is reinstated or to

terminate the Agreement.

K. No Representation of Coverage Adequacy. The requirements as to types and limits, as well as the

City’s review or acceptance of insurance coverage to be maintained by SFM, is not intended to nor shall in

any manner limit or qualify the liabilities and obligations assumed by SFM under the Agreement.