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CM-12-05-097CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL PUBLIC AFFAIRS CONSULTING SERVICES WITH CAPITOL PARTNERS, INC. This Agreement (hereinafter referred to as the "Agreement") is made by and between the City of Round Rock, a Texas home -rule municipal corporation whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and Capitol Partners, Inc. whose offices are located at 1629 K Street NW, Suite 1250, Washington, DC 20006 (hereinafter referred to as the "Consultant"). This Agreement shall recite the contractual terms whereby the City of Round Rock engages Capitol Partners, Inc. to perform, by way of illustration and not limitation, the following services: Public affairs consulting services in relation to identifying and securing federal funding for growth and development projects, and in relation to developing partnerships between the City of Round Rock, Congress, and the federal government that result in substantial government funding and support for desired infrastructure and other projects. 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 for a term from February 1, 2012 until not later than June 30, 2012, or until earlier terminated as provided herein. This Agreement may not be renewed or extended. City reserves the right to review the Agreement at any time, and may elect to terminate same with or without cause or may elect to continue. 1.02 CONTRACT AMOUNT; SCOPE OF SERVICES DELINEATION In consideration for the professional services to be performed by Consultant, City agrees to pay Consultant the amount of Eight Thousand and No/100 Dollars ($8,000.00) per month as a retainer for services and for receipt of the "Public Affairs Proposal" deliverables as delineated herein. This amount does not include administrative fees which otherwise are payable under this Agreement as delineated in Section 1.03. This amount does not include expenses which otherwise are reimbursable under this Agreement as delineated in Section 1.03. 00247418/jkg/revised4/5/ 12 The parties expressly acknowledge that Consultant has been paid for services rendered through February 2012, and will be paid for services properly rendered in March, April, May, and June 2012 in accordance with this Section 1.02 and this Agreement. For purposes of this Agreement, Consultant has issued its "Public Affairs Proposal" for the services delineated herein. Such "Public Affairs Proposal" is attached hereto as Exhibit "A" and incorporated herein by reference for all purposes. This Agreement, and its accompanying exhibit, 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 described under the attached "Public Affairs Proposal" within the contract term specified in Section 1.01. Consultant's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement, in accordance with any appended exhibits, in accordance with due care, and in accordance with prevailing consulting industry standards for comparable services. 1.03 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES; SUPPLEMENTAL AGREEMENTS Payment for Services: In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant in accordance with the terms set forth below: All retainer payments to Consultant shall be made on the basis of invoices submitted by Consultant and approved by City in accordance with Section 1.04 herein, accompanied by required reports, and said retainer payments shall be payable monthly after review. Payment for Administrative Fees: Administrative fees in the amount of $200.00 per month shall be paid to Consultant, upon Consultant properly invoicing for same and providing documentation for same. Such administrative fees shall cover Consultant's incidental costs including but not limited to postage charges, facsimile charges, telephone charges, and the like. Payment for Reimbursable Expenses: Reimbursable expenses authorized in writing in advance by City shall be paid to Consultant at actual cost, upon Consultant properly invoicing for same and providing documentation for same. Not -to -Exceed Total for Services: Unless subsequently changed by additional Supplemental Agreement hereto, duly authorized by City Council or City Manager action, Consultant's total compensation for services hereunder shall not exceed $32,000.00. This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's professional fees for work done on behalf of City. Not -to -Exceed Total for Administrative Fees: Unless subsequently changed by additional Supplemental Agreement hereto, duly authorized by City Council or City Manager action, Consultant's total compensation for administrative fees hereunder shall not exceed $800.00. This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -exceed sum recited herein, Consultant's administrative fees for work done on behalf of 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. 2 Additions: No additions shall be made to Consultant's compensation based upon claims, whether paid by City or denied. Supplemental Agreements: The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if 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 unless and until there is full execution of any Supplemental Agreement, and 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. 1.04 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment, Consultant shall prepare and submit a series of monthly invoices to City. Each invoice for professional services shall detail the services performed, along with documentation. All payments to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by City. A prerequisite to payment of each monthly invoice is compliance with required report submission delineated herein in Section 1.05. Should additional backup material be requested by City, Consultant shall comply promptly. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. If City has any dispute with work performed, then City shall notify Consultant within thirty (30) days after receipt of invoice. In the event of any dispute regarding the work performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide City with an appropriate credit. Payment of Invoices: 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 invoices, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 1.08 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 City or because of amounts which City has a right to withhold under this Agreement or state law. 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. Offsets: City may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. 1.05 REQUIRED REPORTS Monthly Reports: Consultant agrees to provide City, as a prerequisite to payment of any monthly invoice, a monthly written report detailing, at a minimum, a summary of tasks completed, date and specifics of each contact made with City personnel and/or City officials, and date and specifics of each contact made with any other person or entity on behalf of City and City's interests. 3 Final Reports: Consultant agrees to provide City with any necessary detailed final written reports, together with all information gathered and materials developed during the course of the relationship. Additionally, Consultant agrees to provide City with any necessary oral presentations of such detailed final written reports, at City's designation and at no additional cost to City. 1.06 LIMITATION TO SCOPE OF SERVICES Consultant and City agree that the scope of services to be performed is generally enumerated in the "Public Affairs Proposal" labeled as Exhibit "A" and attached hereto. Notwithstanding anything herein to the contrary, the parties agree that City retains absolute discretion and authority for all funding decisions, such decisions to be based solely on criteria accepted by City which may be influenced by but not be dependent on Consultant's work. 1.07 NON -APPROPRIATION; FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Consultant a written notice of termination at the end of its then -current fiscal year. 1.08 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by City to Consultant will be made within thirty (30) days of the date City receives goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date City receives a correct invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by City in the event: (a) (b) There is a bona fide dispute between City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or There is a bona fide dispute between Consultant and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or (c) The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or (d) The invoice is not mailed to City in strict accordance with any instruction relating to the payment. 1.09 TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that City may terminate this Agreement for the convenience of City, upon fifteen (15) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work being performed under this Agreement shall cease. Consultant shall invoice 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 4 otherwise specified in this Agreement, all data, information, and work product related to this project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably organized form without restriction on future use, subject to the conditions set forth herein. Should City subsequently contract with a new consultant for continuation of service, Consultant shall cooperate in providing information. Termination of this Agreement shall extinguish all rights, duties, and obligations of 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 City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. Default: Either party may terminate this Agreement, in whole or in part, for default if the alleging party provides the other party with written notice of such default and the other fails to satisfactorily cure such default within ten (10) business days of receipt of such notice (or a greater time if agreed upon between the parties). If default results in termination of this Agreement, then 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 City, the cost to City of employing another firm to complete the useable work, and other factors will affect the value to City of the work performed at the time of default. Neither party shall be entitled to any lost or anticipated profits for work terminated for default hereunder. The termination of this Agreement for default shall extinguish all rights, duties, and obligations of the terminating party 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 City to pay for any work which is unsatisfactory, or which is not submitted in compliance with the terms of this Agreement. 1.10 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not City's employee. Consultant's employees or subcontractors are not 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 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 it performs its services required by this Agreement. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and City shall not hire, supervise, or pay assistants to help Consultant. 5 (5) Neither Consultant nor its employees or subcontractors shall receive training from 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. (7) 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 City. 1.11 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither 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 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. 1.12 CITY'S RESPONSIBILITIES Full information: City shall provide full information regarding project requirements. 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. City shall require its employees and any third parties who are otherwise assisting, advising or representing City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by City or its designated representative concerning provision of services as accurate and complete. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. City shall furnish information which includes but is not limited to pertinent correspondence with other local municipal and planning officials, previous analyses or feasibility studies, and other pertinent information. Consultant agrees, within ten (10) days of effective date of this Agreement, to provide City with a comprehensive and detailed information request list. 1.13 CONFIDENTIALITY; MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by 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 City is subject to the Freedom of Information Act and its duties run in accordance therewith. All data relating specifically to 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. City's confidential information and Consultant's confidential information is 6 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 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 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, City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for City and delivered to 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. City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for 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. 1.14 WARRANTIES Consultant represents 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. Consultant shall re -perform any work not in compliance with this representation. Consultant disclaims all other warranties express or implied including but not limited to the implied warranties of merchantability and fitness for a particular purpose. 1.15 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to the City's reasonable satisfaction at no additional charge, or (b) if 7 such deficient services cannot be cured within the cure period set forth herein in Section 1.09, then this Agreement may be terminated for default. In no event will Consultant be liable for any 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 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 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. 1.16 INDEMNIFICATION Consultant and City (to the extent allowable by law) agree to indemnify, defend and hold harmless the other from and against 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 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 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 City in connection with the performance of this Agreement. Should City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for 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, City shall return such deliverables provided, and Consultant will refund to 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 City or (2) specifications or other information provided by or at the direction of City; or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of 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 the defense of any suit or proceeding through counsel. 1.17 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. 8 1.18 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. 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, City shall provide Consultant with a certificate from the Texas State Comptroller indicating that City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 1.19 INSURANCE Insurance: Consultant, at Consultant's sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. Subconsultant Insurance: Without limiting any of the other obligations or liabilities of Consultant, Consultant shall require each subconsultant performing work under this Agreement to maintain during the term of the Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in the immediately preceding paragraph, including the required provisions and additional policy conditions as shown below. As an alternative, Consultant may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Consultant's certificate of insurance shall note in such event that the subconsultants are included as additional insureds. Consultant shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Consultant must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. Insurance Policy Endorsements: Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or any material change in coverage, a notice thereof shall be given to City by mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify City, within ten (10) days of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. 9 (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and designated agents in their official capacities, or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Consultant and City mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. Cost of Insurance: The cost of all insurance required herein to be secured and maintained by Consultant shall be borne solely by Consultant, with certificates of insurance evidencing such minimum coverage in force to be filed with City. 1.20 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES As this Agreement is a contract for public affairs consulting services, Consultant will strictly adhere to both the letter and spirit of all federal, state, and local lobbying laws. Consultant, its consultants, agents, employees and subcontractors shall 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 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 hereunder. 1.22 DESIGNATION OF REPRESENTATIVES 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 Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Jonathan M. Orloff, President Capitol Partners, Inc. 1629 K Street NW, Suite 1250 Washington, DC 20006 10 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: Capitol Partners, Inc. 1629 K Street NW, Suite 1250 Washington, DC 20006 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 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of 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 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 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, 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. 11 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 hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or 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. Consultant shall not be deemed to be in default of its obligations to City if its failure to perform or its substantial delay in performance is due to 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 industry 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. City agrees to provide Consultant with one fully executed original. 12 IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate originals on the dates hereafter indicated. CITY OF ROUND ROCK, TEXAS CAPITOL PARTNERS, INC. By: Printed Name: S4e.A.Q NOM/ 00 Title:Q,r m�9- Date Signed:'7-- ATTEST: By: Sara - L. - White, City Clerk FOR CITY, I7° /A%,.:,FORM: Stephan L. Sh's, ity Attorney By: 13 By: Printed Name: Title: Date Signed: