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R-05-03-10-14B1 - 3/10/2005RESOLUTION NO. R -05-03-10-14B1 WHEREAS, the City of Round Rock desires to retain professional consulting services for the creation of a Transit Development Plan and associated financial strategy, and WHEREAS, The Goodman Corporation has submitted an Agreement for Consulting Services to provide said services, and WHEREAS, the City Council desires to enter into said agreement with The Goodman Corporation, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement for Consulting Services with The Goodman Corporation, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended RESOLVED this 10th day of March, 2005. APTE T: 1j )s l �l Cts NY WELL, ayor City of Round Rock, Texas CHRISTINE R. MARTINEZ, City Secre QPFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLOTI/R5031001.WPD/sc AGREEMENT FOR CONSULTING SERVICES WITH THE GOODMAN CORPORATION IN COOPERATION WITH CAPITAL METROPOLITAN TRANSIT AUTHORITY (CMTA) FOR STRATEGIC FINANCE AND IMPLEMENTATION PLAN This Agreement (hereinafter referred to as the "Agreement") 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, Texas 78664-5299 (hereinafter referred to as the "City"), and The Goodman Corporation, with offices located at 3200 Travis Street, Suite 200, Houston, Texas 77006-3636 (hereinafter referred to as "TGC" or the "Consultant"). This Agreement is for consulting services relating to creation of a strategic finance and implementation plan that will compliment existing transit recommendations previously developed for the City under contract with PB Consult, Inc. and embodied in the PB Consult Transit Plan (2003). RECITALS: WHEREAS, the City has determined that there is a need for the delineated consulting services; and WHEREAS, the City desires to contract for such consulting 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: SECTION 1: 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 twenty-four (24) months from the effective date of this Agreement. The City reserves the right to review this Agreement at any time, including at the end of any deliverable, task, or phase, and may elect to terminate this Agreement with or without cause or may elect to continue. 00081477/jkg EXHIBIT SECTION 2: CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, the City agrees to pay Consultant a total sum not to exceed One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00), conditioned upon City's receipt of Capital Metropolitan Transit Authority (CMTA) Section 5307 funding as delineated herein. Said sum of $125,000.00 shall be paid for services and the Scope of Services deliverables as delineated in Section 3 of this Agreement, only if, as and when received by City from CMTA Section 5307 funding. This amount is a fixed not -to -exceed amount which includes all expenses which are defined as reimbursable under this Agreement as delineated in Section 4. Funding for the City's payment obligation of $125,000.00 shall be as follows: $100,000.00 will be provided to the City by Capital Metropolitan Transit Authority (CMTA) from Section 5307 funding, and the remaining $25,000.00 shall be directly provided by the City as its required local share, all as delineated in an associated Interlocal Agreement. SECTION 3: SCOPE OF SERVICES For purposes of this Agreement, Consultant has issued its Scope of Services for the tasks delineated herein. Such Scope of Services is contained in this Section 3. This Agreement and any exhibits 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 Services within the contract term specified in Section 1. Consultant's undertakings shall be limited to performing services for the City and advising the City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement and the referenced Scope of Services. Consultant shall perform its services in a professional and workmanlike manner. Consultant shall not undertake work beyond the Scope of Services set forth in Section 3. However, either party may make written requests for changes to the Scope of Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 5. Scope of Services Project Background: As one of the fastest growing cities in the Austin region, the City of Round Rock is facing many challenges such as increased pollution, traffic congestion, and travel time delays which could negatively impact the quality of life for residents. Although the City has several improvements planned to mitigate future congestion concerns, interest has been raised in the implementation of new transit services above and beyond the current services offered by the existing demand -response service provider. In a recent "Section 5307 Allocation Strategy" report developed by The Goodman Corporation for Capital Metropolitan Transit Authority (CMTA), it became apparent that there is an opportunity to develop a comprehensive 2 transit service and capital improvement strategy for the City that takes advantage of locally committed resources (bond program) to help leverage federal and state funding. Significantly, as a result of the Section 5307 funding study and CMTA Board action, a framework now exists through which the City can access its fair share of federal support to assist in transit -related improvements. CMTA will require that the City develop a sound transportation implementation strategy and an associated financial plan. Project Objective: The primary goal is to create a strategic finance and implementation plan that will compliment existing transit recommendations previously developed for the City under contract with PB Consult, Inc. and embodied in the PB Consult Transit Plan (2003). The following tasks will be executed to address the necessary issues and to develop a finance and implementation plan. Task 1 - Development of Finance and Implementation Strategy ($35,000.00) Consultant shall work directly with the City's staff to formulate strategies for pursuit of funding from various resources. This task includes pursuit of federal, state, and Metropolitan Planning Organization (MPO) funding resources, as well as identification of local match opportunities (local bond projects, state toll revenue credits, land donation, advanced spending authority, etc.). Identification shall be conducted of Letter of No Prejudice (LONP) opportunities to protect local share value that can qualify for Federal Transit Administration (FTA) reimbursement or leverage of local share for future FTA funding. The potential impact of the FTA "Capital Cost of Contracting" provision which could also provide fund reimbursement, as an incentive for utilizing private turnkey contractors, shall also be evaluated. Activities under this Task 1 shall include, by way of illustration and not limitation, development of applications and materials to support "calls for projects" such as the Statewide Transportation Enhancement Program (STEP), MPO Congestion Mitigation and Air Quality (CMAQ) Improvement Program funded Pilot Projects, Surface Transportation Program (STP), Section 5309, Transportation and Community and System Preservation (TCSP), and Federal Livable Communities Initiative (LCI). Further, support for air quality and other project benefits shall be developed by Consultant. Additional activities shall include, by way of illustration and not limitation, pursuit of federal funds through congressional sources during the annual FY2006 transportation appropriations process. Deliverable: The deliverable from Task 1 shall be a final Finance and Implementation Strategy report that identifies and evaluates a list of permanent funding sources for ongoing operations and provides recommendations for innovative funding, including value identification and value capture. Task 2 - Letter of No Prejudice/Existing Conditions Inventory ($40,000.00) Based upon local value to be protected within the Letter of No Prejudice (LONP), including future bond expenditures, Consultant shall include the data, information and analysis to support the LONP request to the FTA as follows: 3 Task 2.1 - Analysis of Existing Conditions: Analysis of existing conditions is related to federal provisions that enable recipients of federal funds to provide pedestrian enhancement improvements within a 500 foot radius of any transit stop and a 1,500 foot radius of any transit terminal. By applying these criteria to Round Rock, Consultant shall endeavor to demonstrate that public improvements along transit corridors and streets near the proposed downtown terminal will be eligible for federal support in the categories of sidewalks, streetscape, pedestrian lighting, landscaping, utility relocation, public art, etc. To qualify proposed improvements, Consultant shall conduct a physical inventory along the transit corridors and streets near the proposed downtown terminal, both photographically and narratively, with an emphasis on pedestrian access, beautification, and ADA compliance, and to include by way of illustration but not limitation condition of sidewalks, pedestrian lighting, landscaping, crosswalks, pedestrian/automotive signage, etc. Task 2.2. - Evaluation of Existing and Future Transit Services and Access: Consultant shall produce an evaluation of existing and future transit and other types of mobility benefits that will result from pedestrian transit improvements and a downtown transportation terminal, so that the City can justify federal funding. The benefit analysis shall include by way of illustration and not limitation quantification of reduced vehicle miles traveled (VMT), reduced tons of pollution, reduced energy utilization, and local economic impacts resulting from proposed improvements. Task 2.3 - Environmental Impact Analysis: Consultant shall conduct an environmental categorical exclusion analysis which shall include a review of potential environmental impacts covering over twenty-five (25) separate environmental impact categories. Deliverables: The deliverables from Task 2 shall be development of LONP which includes inventory of existing conditions along transit corridors and streets near the proposed terminal, an evaluation of existing and future transit services and access, and a categorical exclusion analysis. Task 3 - Intergovernmental Liaison ($30,000.00) Federal funding over a multi-year period will be required for successful implementation of proposed service and capital recommendations previously outlined for the City under contract with PB Consult, Inc. and embodied in the PB Consult Transit Plan (2003), which shall be enhanced by Consultant in further detail through Task 2. Consultant represents to the City that it is very experienced in providing the intergovernmental support to local transit agencies needed to secure federal funds. Activities in pursuit of this Task 3 shall include presentations of the overall program and environmental assessment to the Federal Transit Administration (FTA), response to questions raised by all reviewers, FTA grant preparation, grant revisions as needed, submittals for congressional discretionary funding earmarks, preparation of long-range plan (LRP) and Transportation Improvement Program (TIP) project submittals to the MPO, and ongoing monitoring of federal, state and MPO agency activities. 4 Task 4 - Federal Grantee Status Assistance ($20,000.00) Consultant shall begin working immediately with the FTA and CMTA to achieve direct grantee status for the City of Round Rock. This will allow the City to directly manage and receive reimbursements for federally eligible, funded transit -related projects. This mechanism will give the City more direct control of project planning and implementation, within federal guidelines. SECTION 4: 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 "Payment for Services:" Solely conditioned upon City's receipt of Capital Metropolitan Transit Authority (CMTA) Section 5307 funding as delineated herein, and only if, as and when City actually receives such CMTA Section 5307 funding, fees for the listed deliverables in the total amount of One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00) shall be paid by the City in the following manner: (1) Upon delivery of the Task 1 deliverable and acceptance of the final report by the City, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of $35,000.00, only if said amount has been received by City from CMTA Section 5307 funding. (2) Upon delivery of the Task 2 deliverable and acceptance of the final reports by the City, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of $40,000.00, only if said amount has been received by City from CMTA Section 5307 funding. (3) Upon continuous delivery of the liaison activities that comprise the Task 3 deliverables, the City shall be periodically invoiced by Consultant and the City shall thereupon make progress payments never exceeding the aggregate amount of $30,000.00, only if said amount has been received by City from CMTA Section 5307 funding. To receive such Task 3 progress payments, Consultant shall prepare and submit detailed progress invoices to the City (in accordance with Section 6 herein) for liaison services rendered and such invoices shall track the referenced Scope of Services, and shall detail the services performed, along with documentation for each service performed. (4) Upon delivery of the Task 4 deliverable and the official designation of the City as having direct grantee status, the City shall be invoiced by Consultant and the City shall thereupon make a final payment of $20,000.00, only if said amount has been received by City from CMTA Section 5307 funding. 5 Payment for Reimbursable Expenses: There shall be no additional payment by the City to Consultant for reimbursable expenses, as Consultant has represented to the City that all such fees, overhead costs, and expenses have been included by Consultant within the referenced One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00) "Payment for 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 and for reimbursable expenses shall not exceed One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00). 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 not -to -exceed sum 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. SECTION 5: SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by the City Council or 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. SECTION 6: INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment following delivery of all deliverables, Consultant shall prepare and submit detailed progress invoices to the City, in accordance with the delineation contained herein in Section 4, for services rendered. Such invoices for professional services shall track the referenced Scope of Services, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by the City. Such invoices shall conform to the schedule of services and costs in connection therewith. 6 Should additional backup material be deliverables, Consultant shall comply promptly. necessary, Consultant shall make all records and the City for inspection and auditing purposes. requested by the City relative to service In this regard, should the City determine it books relating to this Agreement available to 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 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. SECTION 7: REQUIRED DRAFT REPORTS AND FINAL REPORT Consultant agrees to provide the City with all required draft reports, progress reports, and a detailed final written report, together with all information gathered and materials developed during the course of the project. Additionally, Consultant agrees to provide the City with up to two (2) oral presentations of such written reports, at the City's designation and at no additional cost to the City provided such presentations are scheduled within the term of this Agreement. Consultant agrees to provide the City with copies of the reports as directed by the City, and a version of the final report in digital format. SECTION 8: LIMITATION TO SCOPE OF SERVICES Consultant and the City agree that the scope of services to be performed is enumerated in Section 3 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. SECTION 9: 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. 7 SECTION 10: 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 (2) The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or 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. (3) SECTION 11: TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that the City may terminate this Agreement for the convenience of the City, upon thirty (30) 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 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. 8 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, the City shall give consideration to actual costs incurred by Consultant in performing the work to the date of default. The cost of the work useable to the City, the cost to the City of employing another firm to complete the useable work, and other relevant factors will affect the value to the City of work performed at time of default. Consultant shall not 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 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. SECTOIN 12: 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: (I) 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. (4) 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) 9 Neither Consultant nor its employees or subcontractors shall receive training from the City in skills necessary to perform services required by this Agreement. The 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. SECTION 13: NON -SOLICITATION Except as may be otherwise agreed in writing, during the term hereof and for twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or employ any person employed then or within the preceding twelve (12) months by the other or any affiliate if such person was involved, directly or indirectly, in the performance of this Agreement. SECTION 14: 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. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. The City shall furnish information which includes but is not limited to access to the City's property, preliminary information and/or data regarding the City, pertinent correspondence with other local municipal and planning officials, previous analyses or studies, and other pertinent information. Consultant agrees, within ten (10) days of the effective date of this Agreement, to provide the City with a comprehensive and detailed information request list. SECTION 15: 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 10 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 the City is confidential information of the 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 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 under the terms of this Agreement (the "Deliverables"); and Consultant 11 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 use including for the purposes for which they were delivered. SECTION 16: 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. Consultant shall re -perform any work not in compliance 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. SECTION 17: LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event the City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to the City's satisfaction at no additional charge, or (b) if such deficient services cannot be cured within the cure period set forth herein in Section 11, 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 the 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. SECTION 18: 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. 12 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 is 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 the defense of any suit or proceeding through counsel of its own choosing. SECTION 19: 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. SECTION 20: 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 13 (3) Withhold any state or federal income tax from any payments made to Consultant. If requested, the City shall provide a certificate from the Texas State Comptroller showing the City as a non-profit corporation not subject to State of Texas Sales and Use Tax. SECTION 21: 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 the 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. The 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 the City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify the City, within twenty-four (24) hours 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 the City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. 14 (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of the City and individual members, employees and 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 the City, to any future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Consultant and the 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 the City. SECTION 22: 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 all of the same shall belong solely to the City at the expiration of the term of this Agreement. SECTION 23: 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. SECTION 24: DESIGNATION OF REPRESENTATIVES The City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: James R. Nuse, P.E. 221 East Main Street Round Rock, Texas 78664 Telephone: 512-218-5402 Facsimile: 512-218-7097 Email: rrbuzz@round-rock.tx.us 15 Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Barry Goodman, President The • odman Company Telephone: 713 -0151-7 q 57 Facsimile: 713 -151- 7 57" Email: 6s4110 fine.5oodirin601zovrt SECTION 25: 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: Barry Goodman, President Th- Goodmai ompany 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 the City and Consultant. 16 SECTION 26: 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 enforcement of any 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. SECTION 27: 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. SECTION 28: 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. SECTION 29: 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. 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. 17 SECTION 30: 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. SECTION 31: 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 and business practices. SECTION 32: 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 waiverof 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 ' o , d ' B: '.,.riame: /UTILE %)ii gYw6u, isle: ft) AyO Date Signed: 3-40_O5 18 Attest: Christine R. Martinez, Cit Secretary Date Signed: 3_ /u_ 65 Appro ed as to Form: The Goodman Company Stepha . Sheets, ity Attorney Date Signed: /6_1— 19 By: Printed Name: &ar r y 6urodYvta.r1/4. Title: 1)r -e5 Date Signed: 3-10 OS' DATE: March 3, 2005 SUBJECT: City Council Meeting - March 10, 2005 ITEM: 14.B.1. Consider a resolution authorizing the Mayor to execute an Agreement for Consulting Services with The Goodman Company for the creation of a Transit Development Plan and associated financial strategy. Department: Finance and Transportation Services Staff Person: Cindy Demers, Director of Finance Tom Word, Chief of Public Works Operations Justification: This Agreement is for consulting services relating to creation of a strategic finance and implementation plan that will compliment existing transit recommendations previously developed for the City under contract with PB Consult, Inc. and embodied in the PB Consult Transit Plan (2003) Funding: Cost: $ 125,000 Source of funds: $100,000 - Capital Metro Transit Authority (from Federal Section 5307 funding) $ 25, 000 - CORR-General Fund Outside Resources: Capital Metro Transit Authority The Goodman Corporation Background Information: As one of the fastest growing cities in the Austin region, the City of Round Rock is facing many challenges such as increased pollution, traffic congestion, and travel time delays which could negatively impact the quality of life for residents. Although the City has several improvements planned to mitigate future congestion concerns, interest has been raised in the implementation of new transit services above and beyond the current services offered by the existing demand -response service provider. In a recent "Section 5307 Allocation Strategy" report developed by The Goodman Corporation for Capital Metropolitan Transit Authority (CMTA), it became apparent that there is an opportunity to develop a comprehensive transit service and capital improvement strategy for the City that takes advantage of locally committed resources (bond program) to help leverage federal and state funding. Significantly, as a result of the Section 5307 funding study and CMTA Board action, a framework now exists through which the City can access its fair share of federal support to assist in transit -related improvements. CMTA will require that the City develop a sound transportation implementation strategy and an associated financial plan. This agreement will build upon the Public Transportation planning already completed by P.B. Consult, Inc. for the City of Round Rock. Public Comment: N/A AGREEMENT FOR CONSULTING SERVICES WITH THE GOODMAN CORPORATION IN COOPERATION WITH CAPITAL METROPOLITAN TRANSIT AUTHORITY (CMTA) FOR STRATEGIC FINANCE AND IMPLEMENTATION PLAN This Agreement (hereinafter referred to as the "Agreement") 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, Texas 78664-5299 (hereinafter referred to as the "City"), and The Goodman Corporation, with offices located at 3200 Travis Street, Suite 200, Houston, Texas 77006-3636 (hereinafter referred to as "TGC" or the "Consultant"). This Agreement is for consulting services relating to creation of a strategic finance and implementation plan that will compliment existing transit recommendations previously developed for the City under contract with PB Consult, Inc. and embodied in the PB Consult Transit Plan (2003). RECITALS: WHEREAS, the City has determined that there is a need for the delineated consulting services; and WHEREAS, the City desires to contract for such consulting 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: SECTION 1: 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 twenty-four (24) months from the effective date of this Agreement. The City reserves the right to review this Agreement at any time, including at the end of any deliverable, task, or phase, and may elect to terminate this Agreement with or without cause or may elect to continue. 0 081477/jkg G15 D3 10-IyAI SECTION 2: CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, the City agrees to pay Consultant a total sum not to exceed One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00), conditioned upon City's receipt of Capital Metropolitan Transit Authority (CMTA) Section 5307 funding as delineated herein. Said sum of $125,000.00 shall be paid for services and the Scope of Services deliverables as delineated in Section 3 of this Agreement, only if, as and when received by City from CMTA Section 5307 funding. This amount is a fixed not -to -exceed amount which includes all expenses which are defined as reimbursable under this Agreement as delineated in Section 4. Funding for the City's payment obligation of $125,000.00 shall be as follows: $100,000.00 will be provided to the City by Capital Metropolitan Transit Authority (CMTA) from Section 5307 funding, and the remaining $25,000.00 shall be directly provided by the City as its required local share, all as delineated in an associated Interlocal Agreement. SECTION 3: SCOPE OF SERVICES For purposes of this Agreement, Consultant has issued its Scope of Services for the tasks delineated herein. Such Scope of Services is contained in this Section 3. This Agreement and any exhibits 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 Services within the contract term specified in Section 1. Consultant's undertakings shall be limited to performing services for the City and advising the City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform its services in accordance with this Agreement and the referenced Scope of Services. Consultant shall perform its services in a professional and workmanlike manner. Consultant shall not undertake work beyond the Scope of Services set forth in Section 3. However, either party may make written requests for changes to the Scope of Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 5. Scope of Services Project Background: As one of the fastest growing cities in the Austin region, the City of Round Rock is facing many challenges such as increased pollution, traffic congestion, and travel time delays which could negatively impact the quality of life for residents. Although the City has several improvements planned to mitigate future congestion concerns, interest has been raised in the implementation of new transit services above and beyond the current services offered by the existing demand -response service provider. In a recent "Section 5307 Allocation Strategy" report developed by The Goodman Corporation for Capital Metropolitan Transit Authority (CMTA), it became apparent that there is an opportunity to develop a comprehensive 2 transit service and capital improvement strategy for the City that takes advantage of locally committed resources (bond program) to help leverage federal and state funding. Significantly, as a result of the Section 5307 funding study and CMTA Board action, a framework now exists through which the City can access its fair share of federal support to assist in transit -related improvements. CMTA will require that the City develop a sound transportation implementation strategy and an associated financial plan. Project Objective: The primary goal is to create a strategic finance and implementation plan that will compliment existing transit recommendations previously developed for the City under contract with PB Consult, Inc. and embodied in the PB Consult Transit Plan (2003). The following tasks will be executed to address the necessary issues and to develop a finance and implementation plan. Task 1 - Development of Finance and Implementation Strategy ($35,000.00) Consultant shall work directly with the City's staff to formulate strategies for pursuit of funding from various resources. This task includes pursuit of federal, state, and Metropolitan Planning Organization (MPO) funding resources, as well as identification of local match opportunities (local bond projects, state toll revenue credits, land donation, advanced spending authority, etc.). Identification shall be conducted of Letter of No Prejudice (LONP) opportunities to protect local share value that can qualify for Federal Transit Administration (FTA) reimbursement or leverage of local share for future FTA funding. The potential impact of the FTA "Capital Cost of Contracting" provision which could also provide fund reimbursement, as an incentive for utilizing private turnkey contractors, shall also be evaluated. Activities under this Task 1 shall include, by way of illustration and not limitation, development of applications and materials to support "calls for projects" such as the Statewide Transportation Enhancement Program (STEP), MPO Congestion Mitigation and Air Quality (CMAQ) Improvement Program funded Pilot Projects, Surface Transportation Program (STP), Section 5309, Transportation and Community and System Preservation (TCSP), and Federal Livable Communities Initiative (LCI). Further, support for air quality and other project benefits shall be developed by Consultant. Additional activities shall include, by way of illustration and not limitation, pursuit of federal funds through congressional sources during the annual FY2006 transportation appropriations process. Deliverable: The deliverable from Task 1 shall be a final Finance and Implementation Strategy report that identifies and evaluates a list of permanent funding sources for ongoing operations and provides recommendations for innovative funding, including value identification and value capture. Task 2 - Letter of No Prejudice/Existing Conditions Inventory ($40,000.00) Based upon local value to be protected within the Letter of No Prejudice (LONP), including future bond expenditures, Consultant shall include the data, information and analysis to support the LONP request to the FTA as follows: 3 Task 2.1 - Analysis of Existing Conditions: Analysis of existing conditions is related to federal provisions that enable recipients of federal funds to provide pedestrian enhancement improvements within a 500 foot radius of any transit stop and a 1,500 foot radius of any transit terminal. By applying these criteria to Round Rock, Consultant shall endeavor to demonstrate that public improvements along transit corridors and streets near the proposed downtown terminal will be eligible for federal support in the categories of sidewalks, streetscape, pedestrian lighting, landscaping, utility relocation, public art, etc. To qualify proposed improvements, Consultant shall conduct a physical inventory along the transit corridors and streets near the proposed downtown terminal, both photographically and narratively, with an emphasis on pedestrian access, beautification, and ADA compliance, and to include by way of illustration but not limitation condition of sidewalks, pedestrian lighting, landscaping, crosswalks, pedestrian/automotive signage, etc. Task 2.2. - Evaluation of Existing and Future Transit Services and Access: Consultant shall produce an evaluation of existing and future transit and other types of mobility benefits that will result from pedestrian transit improvements and a downtown transportation terminal, so that the City can justify federal funding. The benefit analysis shall include by way of illustration and not limitation quantification of reduced vehicle miles traveled (VMT), reduced tons of pollution, reduced energy utilization, and local economic impacts resulting from proposed improvements. Task 2.3 - Environmental Impact Analysis: Consultant shall conduct an environmental categorical exclusion analysis which shall include a review of potential environmental impacts covering over twenty-five (25) separate environmental impact categories. Deliverables: The deliverables from Task 2 shall be development of LONP which includes inventory of existing conditions along transit corridors and streets near the proposed terminal, an evaluation of existing and future transit services and access, and a categorical exclusion analysis. Task 3 - Intergovernmental Liaison ($30,000.00) Federal funding over a multi-year period will be required for successful implementation of proposed service and capital recommendations previously outlined for the City under contract with PB Consult, Inc. and embodied in the PB Consult Transit Plan (2003), which shall be enhanced by Consultant in further detail through Task 2. Consultant represents to the City that it is very experienced in providing the intergovernmental support to local transit agencies needed to secure federal funds. Activities in pursuit of this Task 3 shall include presentations of the overall program and environmental assessment to the Federal Transit Administration (FTA), response to questions raised by all reviewers, FTA grant preparation, grant revisions as needed, submittals for congressional discretionary funding earmarks, preparation of long-range plan (LRP) and Transportation Improvement Program (TIP) project submittals to the MPO, and ongoing monitoring of federal, state and MPO agency activities. 4 Task 4 - Federal Grantee Status Assistance ($20,000.00) Consultant shall begin working immediately with the FTA and CMTA to achieve direct grantee status for the City of Round Rock. This will allow the City to directly manage and receive reimbursements for federally eligible, funded transit -related projects. This mechanism will give the City more direct control of project planning and implementation, within federal guidelines. SECTION 4: 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 "Payment for Services:" Solely conditioned upon City's receipt of Capital Metropolitan Transit Authority (CMTA) Section 5307 funding as delineated herein, and only if, as and when City actually receives such CMTA Section 5307 funding, fees for the listed deliverables in the total amount of One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00) shall be paid by the City in the following manner: (1) Upon delivery of the Task 1 deliverable and acceptance of the final report by the City, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of $35,000.00, only if said amount has been received by City from CMTA Section 5307 funding. (2) Upon delivery of the Task 2 deliverable and acceptance of the final reports by the City, the City shall be invoiced by Consultant and the City shall thereupon make a progress payment of $40,000.00, only if said amount has been received by City from CMTA Section 5307 funding. (3) Upon continuous delivery of the liaison activities that comprise the Task 3 deliverables, the City shall be periodically invoiced by Consultant and the City shall thereupon make progress payments never exceeding the aggregate amount of $30,000.00, only if said amount has been received by City from CMTA Section 5307 funding. To receive such Task 3 progress payments, Consultant shall prepare and submit detailed progress invoices to the City (in accordance with Section 6 herein) for liaison services rendered and such invoices shall track the referenced Scope of Services, and shall detail the services performed, along with documentation for each service performed. (4) Upon delivery of the Task 4 deliverable and the official designation of the City as having direct grantee status, the City shall be invoiced by Consultant and the City shall thereupon make a final payment of $20,000.00, only if said amount has been received by City from CMTA Section 5307 funding. 5 Payment for Reimbursable Expenses: There shall be no additional payment by the City to Consultant for reimbursable expenses, as Consultant has represented to the City that all such fees, overhead costs, and expenses have been included by Consultant within the referenced One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00) "Payment for 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 and for reimbursable expenses shall not exceed One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00). 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 not -to -exceed sum 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. SECTION 5: SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by the City Council or 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. SECTION 6: INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment following delivery of all deliverables, Consultant shall prepare and submit detailed progress invoices to the City, in accordance with the delineation contained herein in Section 4, for services rendered. Such invoices for professional services shall track the referenced Scope of Services, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by the City. Such invoices shall conform to the schedule of services and costs in connection therewith. 6 Should additional backup material be requested by the City relative to service deliverables, Consultant shall comply promptly. In this regard, should the City determine it necessary, Consultant shall make all 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 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. SECTION 7: REQUIRED DRAFT REPORTS AND FINAL REPORT Consultant agrees to provide the City with all required draft reports, progress reports, and a detailed final written report, together with all information gathered and materials developed during the course of the project. Additionally, Consultant agrees to provide the City with up to two (2) oral presentations of such written reports, at the City's designation and at no additional cost to the City provided such presentations are scheduled within the term of this Agreement. Consultant agrees to provide the City with copies of the reports as directed by the City, and a version of the final report in digital format. SECTION 8: LIMITATION TO SCOPE OF SERVICES Consultant and the City agree that the scope of services to be performed is enumerated in Section 3 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. SECTION 9: 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. 7 SECTION 10: 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 (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. SECTION 11: TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that the City may terminate this Agreement for the convenience of the City, upon thirty (30) 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 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. 8 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, the City shall give consideration to actual costs incurred by Consultant in performing the work to the date of default. The cost of the work useable to the City, the cost to the City of employing another firm to complete the useable work, and other relevant factors will affect the value to the City of work performed at time of default. Consultant shall not 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 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. SECTOIN 12: 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. (4) 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) 9 Neither Consultant nor its employees or subcontractors shall receive training from the City in skills necessary to perform services required by this Agreement. The 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. SECTION 13: NON -SOLICITATION Except as may be otherwise agreed in writing, during the term hereof and for twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or employ any person employed then or within the preceding twelve (12) months by the other or any affiliate if such person was involved, directly or indirectly, in the performance of this Agreement. SECTION 14: 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. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. The City shall furnish information which includes but is not limited to access to the City's property, preliminary information and/or data regarding the City, pertinent correspondence with other local municipal and planning officials, previous analyses or studies, and other pertinent information. Consultant agrees, within ten (10) days of the effective date of this Agreement, to provide the City with a comprehensive and detailed information request list. SECTION 15: 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 10 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 the City is confidential information of the 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 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 under the terms of this Agreement (the "Deliverables"); and Consultant 11 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 use including for the purposes for which they were delivered. SECTION 16: 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. Consultant shall re -perform any work not in compliance 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. SECTION 17: LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of this Agreement, then and in that event the City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to the City's satisfaction at no additional charge, or (b) if such deficient services cannot be cured within the cure period set forth herein in Section 11, 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 the 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. SECTION 18: 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. 12 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 is 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 the defense of any suit or proceeding through counsel of its own choosing. SECTION 19: 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. SECTION 20: 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 13 (3) Withhold any state or federal income tax from any payments made to Consultant. If requested, the City shall provide a certificate from the Texas State Comptroller showing the City as a non-profit corporation not subject to State of Texas Sales and Use Tax. SECTION 21: 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 the 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. The 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 the City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Consultant shall also notify the City, within twenty-four (24) hours 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 the City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Consultant. 14 (3) Terms "the City" or "the City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of the City and individual members, employees and 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 the City, to any future coverage, or to City's Self -Insured Retentions of whatever nature. (5) Consultant and the 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 the City. SECTION 22: 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 all of the same shall belong solely to the City at the expiration of the term of this Agreement. SECTION 23: 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. SECTION 24: DESIGNATION OF REPRESENTATIVES The City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: James R. Nuse, P.E. 221 East Main Street Round Rock, Texas 78664 Telephone: 512-218-5402 Facsimile: 512-218-7097 Email: rrbuzz@round-rock.tx.us 15 Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Barry Goodman, President The odman Company Telephone: Facsimile: Email: 7/3-0151--7615/ 713-0151-7'1 bar/y0 tir,9nod»(arn Ore.ca wt SECTION 25: 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: Barry Goodman, President Notice to City: Th- Goodman ompany 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 the City and Consultant. 16 SECTION 26: 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 enforcement of any 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. SECTION 27: 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. SECTION 28: 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. SECTION 29: 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. 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. 17 SECTION 30: 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. SECTION 31: 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 and business practices. SECTION 32: 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. rtle: Date Signed: 18 Attest: ladit6ruu )66 fl -124 - Christine R. Martinez, Cit Secretary Date Signed: 3 - 65 Appro ed as to Form: The Goodman Company Stepha IL. Sheets, C'ty Attorney By: Printed Name: Barry 6trodYo-a.� Date Signed: „.20/�,//j /Q.1— Title: Tr/5t dint Date Signed: 3-10 -0 S" 19