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CM-04-07-00501/191 l lip Rn . s-7- 005 Request for City Council/City Manager Action REt Please submit this form when placing items on the council agenda or when submitting an item to the City Manager for approve p Department: Contact Person: Project Name: Finance Project Manager/Resource: Noelle Jones Noelle Jones PeopleSoft Consulting -Oxford Contractor/Vendor Name: Oxford Global Resources Amount: $11,350.00 Is Funding Required? Yes Council Agenda Item Yes Submission to City Manager - Yes x x No No No x Council Meeting Date: Funding Source: Assigned Attorney: 2004 15 -Jul -04 J. Kay Gayle (contract, agreement,amendment,change order, purchase order,etc.) (see required signatures below before submission to the City Manager) ▪ Initial Construction Contract Construction Contract Amendment ▪ Change Order =Change in Quantity =Unforeseen Circumstances ▪ Initial Professional Services Agreement • Supplemental Professional Svcs. Agr. # ElPurchasing/Service Agreement ▪ Purchase Order Item(s) to be purchased: Amount 11,350.00 ® Other (Please clearly identify action on lines below) Agenda Wording: Consider a resolution authorizing the Mayor to execute an agreement with Oxford Global Resources, Inc. for consulting services for the PeopleSoft financial system. For Submission to City Man,,� �er OnlY Project Mgr. Signature: l" A ✓, V Date: Dept. Director Signature: _y� Date: City Attorney Signature: �� _ :L Date: City Manager Signature: re • Date: < IRA, pproval is required for all items requesting City Manager's approval. Asf Finance Approval Finance -Date and Signature: L. Olsen by N. Jones 7/14/2004 ❑ Purchasing -Date and Signature: g/administraton/cmgr-council action.xis 7-14-04 BLUE SHEET FORMAT RECD JUL 16 2004 DATE: July 15, 2004 SUBJECT: City Manager's Signature ITEM: Execute an agreement with Oxford Global Resources, Inc. for consulting services for the PeopleSoft financial system. Department: Finance Department Staff Person: Cindy Demers Justification: Professional consulting services related to the financial accounting system, Peoplesoft, related to a functionality review and correction process. Funding: Cost: $11,350.00 Source of funds: Self Finance construction Outside Resources: Oxford Global Resources Background Information: Public Comment: N/A Blue Sheet Format Updated 01/20/04 CITY OF ROUND ROCK AGREEMENT WITH OXFORD GLOBAL RESOURCES, INC. FOR PROFESSIONAL CONSULTING SERVICES THIS AGREEMENT for professional consulting services (the "Agreement"), relative to a functionality review and correction process for the City's software for its financial accounting system, is made by and between the City of Round Rock, a Texas home -rule municipal corporation, with offices located at 221 East Main Street, Round Rock, TX 78664-5299, (the "City") and Oxford Global Resources, Inc. (the "Consultant"), with offices located at 100 Cummings Center, Suite 206L, Beverly, MA 01915. RECITALS: WHEREAS, City has determined that there is a need for the delineated services; and WHEREAS, City desires to contract for such professional services; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 EFFECTIVE DATE, DURATION, AND TERM This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. The term of this Agreement shall be until full and satisfactory completion of the work specified herein is achieved, but in no event later than July 30, 2004. City reserves the right to review the project at any time, including at the end of any deliverable or phase, and may elect to terminate the project with or without cause or may elect to continue with the next deliverable or phase. 1.02 CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant as follows: $200.00 per hour for the on-site services of Suresh Rangam or designated substitute, or $175.00 per hour for the off-site services of Suresh Rangam or designated substitute, for a timeframe estimated to begin on or about July 6, 2004 and end on 69567 or about July 16, 2004, with Suresh Rangam or designated substitute keeping a minimum schedule of eight (8) hours per day/forty (40) hours per week except official holidays. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.04. 1.03 SCOPE OF WORK Consultant shall provide Suresh Rangam or designated substitute to perform on-site services and remote services for timeframes as specified above, and Suresh Rangam or designated substitute shall work under the direction of Noelle Jones, the City's designated representative to manage the referenced project. Noelle Jones shall have overall responsibility for directing and managing the hourly services performed hereunder, and shall be the City's designated representative for interaction with Consultant. Consultant shall perform necessary functionality reviews and shall make indicated corrections to Peoplesoft, the software for the City's financial accounting system. This Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Consultant shall satisfactorily provide all services and deliverables described under the referenced Scope of Work within the term specified in Section 1.01. Consultant's undertakings shall be limited to performing services for the City and/or advising the City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement and in accordance with the referenced Scope of Work. Consultant shall perform its services in a professional and workmanlike manner. Consultant shall not undertake work that is beyond the Scope of Work set forth in Section 1.03. However, either party may make written requests for changes to the Scope of Work. To be effective, a change to the Scope of Work must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 1.05 hereof. 1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES Payment for Services: In consideration for the consulting services to be performed by Consultant, the City agrees to pay Consultant the following: $200.00 per hour for the on-site services of Suresh Rangam or designated substitute, or $175.00 per hour for the off-site Services of Suresh Rangam or designated substitute, for a timeframe estimated to begin on or about July 6, 2004 and end on or about July 16, 2004, with Suresh Rangam or designated substitute keeping a minimum schedule of eight (8) hours per day/forty (40) hours per week except official holidays. Invoices shall be submitted weekly based upon time slips that Consultant provides its representatives and which must be signed by a City representative. Signing the time slip confirms that the Consultant has satisfactorily performed the hours reported. Payment terms associated with these invoices shall be net thirty days. Payment for Reimbursable Expenses: Allowable reimbursable expenses shall be 2 limited to the pre -approved and receipted actual charges for airfare, lodging, and automobile rental for Suresh Rangam or designated substitute incurred during the applicable term of this Agreement and in furtherance of performance of the required services. Not -to -Exceed Total Payment for Services: Unless subsequently changed by Supplemental Agreement to this Agreement, Consultant's total compensation for consulting services hereunder shall not exceed the amount stated herein. This amount represents the absolute limit of the City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and the City shall pay, strictly within the confines of the amount recited herein, Consultant's professional fees for work done on behalf of the City. Deductions: No deductions shall be made for Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to Consultant. Additions: No additions shall be made to Consultant's compensation based upon project claims, whether paid by the City or denied. 1.05 SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or by the City Manager, if the City determines that there has been a significant change in (1) the scope, complexity, or character of the services to be performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. Consultant shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and the City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. 1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payments during the term of this Agreement, Consultant shall prepare and submit detailed weekly invoices to the City, in accordance with the delineation contained herein in Section 1.04, for services rendered. Payment to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by the City. Such invoices for professional services shall be rendered weekly based on time slips which must be signed by the City's representative each week evidencing the hourly services performed. For work performed off-site, the City agrees to accept the number of hours reported by Consultant as being valid. The City hereby reserves its right to advise Consultant in advance in writing of any restrictions it shall place on the number of hours to be worked by Consultant off-site. Should additional backup material be requested by the City, Consultant shall comply promptly. In this regard, should the City determine it necessary, Consultant shall make all 3 records and books relating to this Agreement available to the City for inspection and auditing purposes. Payment of Invoices: The City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of an invoice, the City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.10 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which are late because of a good faith dispute between Consultant and the City or because of amounts which the City has a right to withhold under this Agreement or state law. The City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. 1.07 LIMITATION TO SCOPE OF WORK Consultant and the City agree that the scope of services to be performed is enumerated in Section 1.03 herein, and may not be changed without the express written agreement of the parties. Notwithstanding anything herein to the contrary, the parties agree that the City retains absolute discretion and authority for all funding decisions, such to be based solely on criteria accepted by the City which may be influenced by but not be dependent on Consultant's work. 1.08 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of the City's current revenues only. It is understood and agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of the City does not appropriate funds sufficient to purchase the services as determined by the City's budget for the fiscal year in question. The City may effect such termination by giving Consultant a written notice of termination at the end of its then current fiscal year. 1.09 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Consultant will be made within thirty (30) days of the day on which the City receives the performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which the City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Consultant may charge a late fee of one percent (1%) for payments not made in accordance with this prompt payment policy; however, this policy does not apply to payments made by the City in the event: (1) There is a bona fide dispute between the City and Consultant concerning the supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or 4 (2) The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or (3) There is a bona fide dispute between the parties and subcontractors or between a subcontractor and its suppliers concerning supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or (4) Invoices are not mailed to the City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 1.10 TERMINATION; DEFAULT Termination: It is agreed and understood by the parties that either Consultant or the City may terminate this Agreement for convenience upon fifteen (15) days' written notice to the other party, with the understanding that immediately upon receipt of said notice all work being performed under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily completed and shall be compensated in accordance with the terms hereof for work accomplished prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or anticipated profits for work terminated under this Agreement. Unless otherwise specified in this Agreement, all data, information, and work product related to this project shall become the property of the City upon termination of this Agreement, and shall be promptly delivered to the City in a reasonably organized form without restriction on future use. Should the City subsequently contract with a new consultant for continuation of service on the project, Consultant shall cooperate in providing information. Termination of this Agreement shall extinguish all rights, duties, and obligations of the City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which is unsatisfactory as determined by the City or which is not submitted in compliance with the terms of this Agreement. Default: The City may terminate this Agreement, in whole or in part, for default if the City provides Consultant with written notice of such default and Consultant fails to cure such default to the satisfaction of the City within ten (10) business days of receipt of such notice (or a greater time if permitted by the City). If Consultant defaults in performance of this Agreement and if the City terminates this Agreement for such default, then the City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to the City, the cost to the City of employing another firm to complete the useable work, and other factors will affect the value to the City of the work performed at the time of default. Consultant shall not be entitled to any lost or anticipated profits for work terminated for default hereunder. 5 The termination of this Agreement for default shall extinguish all rights, duties, and obligations of the City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work with is unsatisfactory as determined by the City, or which is not submitted in compliance with the terms of this Agreement. 1.11 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not the City's employee. Consultant's employees or subcontractors are not the City's employees. This Agreement does not create a partnership, employer-employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and the City agree to the following rights consistent with an independent contractor relationship: (1) Consultant has the right to perform services for others during the term hereof. (2) Consultant has the sole right to control and direct the means, manner and method by which services required by this Agreement will be performed. Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. Consultant or its employees or subcontractors shall perform services required hereunder, and the City shall not hire, supervise, or pay assistants to help Consultant. (3) (4) (5) Neither Consultant nor its employees or subcontractors shall receive training from the City in skills necessary to perform services required by this Agreement. (6) City shall not require Consultant or its employees or subcontractors to devote full time to performing the services required by this Agreement. Neither Consultant nor its employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of the City. (7) 1.12 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or shall employ any person employed then or within the preceding twelve (12) months by the other or 6 any affiliate of the other if such person was involved, directly or indirectly, in the performance of this Agreement. This provision shall not prohibit the hiring of any person who was solicited solely through a newspaper advertisement or other general solicitation. 1.13 CITY'S RESPONSIBILITIES Full information: The City shall provide full information regarding project requirements. The City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required to enable Consultant to provide the services called for. The City shall cause its employees and any third parties who are otherwise assisting, advising or representing the City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by the City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by the City or its designated representative concerning provision of services. 1.14 CONFIDENTIALITY; AND MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by the City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that the City is subject to the Texas Public Information Act and its duties run in accordance therewith. All data relating specifically to the City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential information of Consultant. The City's confidential information and Consultant's confidential information is collectively referred to as "Confidential Information." Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party's prior written consent, which consent shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the confidentiality of the other party's Confidential Information and to advise their employees of the confidential nature of the Confidential Information and of the prohibitions herein. Notwithstanding anything to the contrary contained herein, neither party shall be obligated to treat as confidential any information disclosed by the other party (the "Disclosing Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to any other person or entity (including 7 governmental agencies) without restriction; (3) is independently developed by the recipient without any reliance on Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any non-party. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including subpoena or other similar form of process, provided that (without breaching any legal or regulatory requirement) the party to whom the request is made provides the other with prompt written notice and allows the other party to seek a restraining order or other appropriate relief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Neither the City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, the City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for the City and delivered to the City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than the Deliverables). Consultant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to Consultant. The City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for the City's own internal use and only for the purposes for which they are delivered to the extent that they form part of the Deliverables. 1.15 WARRANTIES Consultant warrants that all services performed hereunder shall be performed consistent with generally prevailing professional or industry standards, and shall be performed in a professional and workmanlike manner. with this warranty. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 1.16 LIMITATION OF LIABILITY 8 In no event will Consultant be liable for loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by City, its directors, employees or agents. In no event shall Consultant be liable to the City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by the City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 1.17 INDEMNIFICATION Consultant and the City each agree to indemnify, defend and hold harmless the other from and against any and all amounts payable under any judgment, verdict, court order or settlement for death or bodily injury or the damage to or loss or destruction of any real or tangible personal property to the extent arising out of the indemnitor's negligence in the performance of this Agreement. Consultant agrees to indemnify, defend and hold harmless the City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to the City in connection with the performance of this Agreement. Should the City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for the City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non - infringing while yielding substantially equivalent results. If neither of the above options are or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, the City shall return such deliverables provided, and Consultant will refund to the City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based upon (1) designs provided by or at the direction of the City or (2) specifications or other information provided by or at the direction of the City; or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of the City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. The indemnified party shall have the right, at its option and expense, to participate in 9 the defense of any suit or proceeding through counsel of its own choosing. 1.18 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party may assign any rights or delegate any duties under this Agreement without the other party's prior written approval, which approval shall not be unreasonably withheld. 1.19 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. The City will not do the following: (1) Withhold FICA from Consultant's payments or make FICA payments on its behalf; (2) Make state and/or federal unemployment compensation contributions on Consultant's behalf; or (3) Withhold state or federal income tax from any of Consultant's payments. If requested, the City shall provide Consultant with a certificate from the Texas State Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 1.20 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Consultant, its consultants, agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to the City at the expiration of the term of this Agreement. 1.21 FINANCIAL INTEREST PROHIBITED Consultant covenants and represents that Consultant, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required under this Agreement. 1.22 DESIGNATION OF REPRESENTATIVES 10 The City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Telephone: 512-218-5402 Facsimile: 512-218-7097 Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Telephone: Facsimile: 1.23 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: (1) When delivered personally to recipient's address as stated herein; or (2) Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Consultant: Oxford Global Resources, Inc 100 Cummings Center Suite 206L Beverly, MA 01915 Notice to City: City Manager, City of Round Rock 221 East Main Street Round Rock, TX 78664 AND TO: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 11 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of the City and Consultant. 1.24 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 1.25 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties understand and expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 1.26 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator, the City shall select one mediator and Consultant shall select one mediator and those two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. The City and Consultant hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 1.27 FORCE MAJEURE Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or a breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. 12 Consultant shall not be deemed to be in default of its obligations to the City if its failure to perform or its substantial delay in performance is due to the City's failure to timely provide requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 1.28 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.29 STANDARD OF CARE Consultant represents that it is specially trained, experienced and competent to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed, whether by Consultant or designated subconsultants, in a manner according to generally accepted business attraction practices. 1.30 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing and signed by an authorized representative of the party against whom such waiver or discharge is sought to be enforced. This Agreement may be executed in multiple counterparts, which taken together shall be considered one original. The City agrees to provide Consultant with one fully executed original. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of Round Rock, Texas Attest: 13 By: James Nuse, Date Signed: Oxford Global Resources, Inc. By: App eph. L. Sheets, City Attorney v Tr (GA it (p� � Date Signed: `)-c awl d as to For 14 Christine R. Martinez City Secretary i7 -/l0-01/ Date Signed: